Healthcare Blog

OnMarch 31, 2021, Presidential Proclamation 10052 expired. PP 10052 prohibited the issuance ofcertain H-1B, H-2B, L-1, J-1, H-4, L-2, and J-2 visas for entry to the US at USEmbassies and Consulates due to possible economic harm to the US during theCOVID-19 Pandemic.

Allconsular processed cases falling under the criteria of PP 10052 may now resumeprocessing. Any visa applicant previously refused a visa due to PP 10052 mustreapply with a new application and new fee. However, many US embassies arestill operating on reduced staff, due to the COVID-19 pandemic. Therefore, weanticipate that there will continue to be delays in obtaining nonimmigrant visainterviews at Embassies and Consulates.

DOS has updated its announcementand FAQs on the phased resumption of visa services  following the expiration of PresidentialProclamation 10052.

MusilloUnkenholt is pleased to report that the HealthcareWorkforce Resilience Act has been reintroduced into Congress.  The HWRA is smart, positive legislation thatwill increase the supply of nurses and doctors into the US.  These two occupations are among the shortestsupplied occupations by US workers. Musillo Unkenholt and the AAIHR have been working closely with theseoffices for the last two months, assisting congressional staffers draft thislegislation. 

If the HWRA becomes law, allnurses and doctors whose visa applications are currently retrogressedimmediately become current.  Likewise,any nurse or doctor whose I-140 is filed before 90 days after the expiration ofthe President’sEmergency Declaration on COVID-19 is also expected to have aretrogression-free visa, although there is an overall quota of 25,000 visas forRNs and 15,000 visas for MDs. The legislation contains language asking theUSCIS and Embassies and Consulates to expedite these petitions.  The HWRA admirably contains US workerprotections, guaranteeing that no US worker is displaced. 

The HWRA has a strong set oforiginal co-sponsors in the Senate: Sens. Durbin, Coons, Lehay (Ds) and Cornyn,Young, Collins (Rs). This is an impressive bipartisan set of Senators withdecades of experience leading legislative initiatives.  Companion legislation will be introduced intothe House by U.S. Representatives Brad Schneider (D-IL-10), Tom Cole (R-OK-04),Tom O'Halleran (D-AZ-01), and Don Bacon (R-NE-02). 

Specifically, the HealthcareWorkforce Resilience Act:

* Recaptures unused visas fromprevious fiscal years for doctors, nurses, and their families

* Exempts these visas from countrycaps

* Requires employers to attestthat immigrants from overseas who receive these visas will not displace anAmerican worker

* Requires the Department ofHomeland Security and State Department to expedite the processing of recapturedvisas

* Limits the filing period forrecaptured visas to 90 days following the termination of the President’sCOVID-19 emergency declaration

TheUS Department of Labor (DOL) has delayed the new rule which would change themethod for calculating prevailing wages for 18 months. 

InOctober2020, the DOL announced an Interim Rule which changed the computation ofwage levels and dramatically increased prevailing wages.  The October 2020 Interim Rule was later struckdown by the courts, but was later re-issued as a Final Rule in January2021. 

OnJanuary 14, 2021 the DOL published its FinalRule regarding increases in prevailing wages for H-1B, H-1B1, E-3, andGreen Card cases. You can find our blog post summarizing the Final Rule here. 

TheFinal Rule was initially set to take effect May 14, 2021 and wages issued afterJuly 1, 2021 would be impacted. However, the DOL has postponedthe effective date of the Final Rule by 18 months until November 14, 2022. TheDOL delayed the start of the transition period to the new prevailing wagelevels from July 1, 2021 to January 1, 2023. 

TheDOL is implementing this delay to allow for more time to fully analyze thelegal and policy issues raised by the rule, as well as to validate theprevailing wage data. This official delay is expected to be effective on March22, 2021.

TheDepartment of State has just issued the April 2020 Visa Bulletin. This is the seventh VisaBulletin of Fiscal Year 2021. This blog post analyzes this month's VisaBulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may beapproved for their Green Card (Permanent Residency card) or Immigrant Visaappointment.

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart forI-485 employment-based filings. A beneficiary must be current on the aboveTable A chart in order to file their I-485, Adjustment of Status applications.  USCIS Adjustment of Status page.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continueto be current. Our opinion remains that these categories will stay current forthe foreseeable future.

India EB-1 became current, which led to extra visas will flowing down toIndia EB2 and EB3.  Indeed, India EB-2moved ahead almost a year and half into May 2011.  EB-3 also jumped up. It is now is2014.  We could see favorableprocessing times for the rest of 2021.

China EB-2 and EB-3 again both moved forward, this time by months, a trend that shouldcontinue.  China EB-1 is nowcurrent reflecting the paucity of visas that were issued under the last year ofthe Trump presidency. 

USCISannounced on March 9 that it will no longer apply the Public Charge FinalRule.  The Public Charge Final Rule was published in October 2019 andsubjected allI-485 applicants to a wealth test, requiringapplicants to list and document all assets and debts on Form I-944. Effective March 9, I-485 applicants no longer need to submit Form I-944.  

USCIS will not review any I-944 forms already submitted,and applicants can disregard any aspect of a Request for Evidence of Notice ofIntent to Deny that requests information related to the Public Charge FinalRule.  

The Public Charge Final Rule had also required nonimmigrantvisa applicants to answer questions about the receipt of public benefits onapplications for extension of stay or change of status.  Nonimmigrant visaapplicants now no longer need to answer these questions relating to the receiptof public benefits.  

USCIS will revert to the prior guidance outlined in the1999 Interim Field Guidance in place prior to the introduction of the PublicCharge Final Rule.  

Beginning March 2, 2021,H-1B Electronic Registration for cap-subject petitions will take place. Whilethis marks the second year that USCIS has utilized electronic registration, theprocess remains much the same as last year. 

Employers that did notparticipate in last year’s electronic registration process will need to first createan H-1B Registrant account on MyUSCIS.  Employers that did participate last year willbe able to utilize their existing account.  

The registrationwindow will open at 12:00pm Eastern Time on March 9, 2021 and end at12:00pm Eastern Time on March 25, 2021. During this window, all potentialbeneficiaries must be registered by their employer to be considered for H-1B selectionin the cap.  

USCIS intends to informemployers by March 31, 2021 which beneficiaries were selected and full H-1Bpetitions may be filed no earlier than April 1, 2021. While the registrationprocess only requires minimal information about each beneficiary, thebeneficiary must meet all eligibility requirements at the time of filing the fullH-1B petition. 

Please contact MU Lawshould you have any questions or require any assistance in filing H-1Bcap-subject registrations.

TheDepartment of State has just issued the March 2020 Visa Bulletin. This is the sixth VisaBulletin of Fiscal Year 2021. This blog post analyzes this month's VisaBulletin.

Visa Bulletin

Table A: Final Action Dates --Applications with these dates may be approved for their Green Card (PermanentResidency card) or Immigrant Visa appointment.

Table B: Dates of Filing

The USCIS will be using the TableA: Final Action Dates chart for I-485 employment-based filings. A beneficiarymust be current on the above Table A chart in order to file their I-485,Adjustment of Status applications.

MU Law Analysis

Both the Philippines andWorldwide (All Other) EB-3 continue to be current. Our opinion remains thatthese categories will stay current for the foreseeable future.

India EB-1 movedahead 7 more months, which is about a year since December. India EB-2 andEB-3 each showed more progress than usual, but the progress is stillunderwhelming.  These slow progressions,along with the large number of India EB-2 and EB-3 filings in October,November, and December, probably means that we should only expect 1-4 weekmovements in India EB-2 or EB-3 for at least the rest of 2021.

China EB-2 and EB-3 againboth moved forward by a few weeks, a trend that should continue. China EB-1 againshowed more progress than expected moving ahead seven months.  This may be because of declining rates ofvisa issuance out of the American posts in China.

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

-      The H-1B CAP timeline for registration submissions

-      The H-1B Wage-Based Lottery Selection Rule now *canceled*

-      Recap of DOL Wage Rule and promo Alternative Wage Surveys

-      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

PLEASE JOIN US!