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The Department of State has just issued the December2020 Visa Bulletin. This is the third VisaBulletin of Fiscal Year 2021. This blog post analyzes this month’s VisaBulletin.

December 2020 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 again announced that it will allow the more favorable Dateof Filing chart for I-485 Adjustment of Status.This means that all employment-based immigrants in EB-1, EB-2 or EB-3 can filetheir I-485s.  However, if they arenatives of India or China, their priority date must be earlier than thesedates:

MU Law Analysis

Unlikelast month, the DOS issued a timely Visa Bulletinfor December. 

Both the Philippines and Worldwide (All Other) EB-3 continueto be current.  We expect these categoriesto stay current for the foreseeable future. The only constraint to the Philippine EB-3 visas being issued is thecapacity at the Embassy in Manila.  Itremains to be seen how increasing COVID infection rates bear on embassiescapacities.

India had another month defined by variance.  India EB-1 moved ahead sixmonths.  India EB-2 and EB-3 eachmoved ahead by about 1-2 weeks.  Theinteresting news was that the Dates of Filing for India EB-3 retrogressed by ayear, reflecting the fact that an enormous number of India EB-3 I-485s havebeen filed in October and November.  Thisretrogression probably means that no further material progress will happen inIndia EB-3 for a long time.

China EB-2 and EB-3 both moved forward by a few weeks, a trend that maycontinue.  China EB-1 showed moreprogress than expected, perhaps because of declining rates of visa issuance outof the American posts in China.

MUexpects that future Visa Bulletins will continue to have positive news, includingslow but continued forward progression in the Chinese and Indian categories.  We also expect the Philippine and Worldwidecategories will remain current for the foreseeable future.

Theplatform for MU’s webinar scheduled for Monday, November 16^th discussingthe Recap of Changes from the USCIS, DOL, AND DOS has changed from Livestorm toZoom.

  
If you have already registered for Monday’s webinar, you will receive an emailwith your invite to the Zoom webinar. If you have not yet registered,there is still time to register by clicking on the link below.

On November 2, 2020, DHS published in the Federal Register its proposed new rule for the 2021 CAP thatwould give priority to H-1B CAP candidates whose employer promises to pay thehighest of the Occupational Employment Statistics (OES) wage levels. 

The OES categorizes wages from Levels I throughIV for a particular position in a Metropolitan Statistical Area (MSA). In theH-1B context, the employer then chooses the appropriate wage level based on theexperience and complexity of the position and can file a Labor ConditionApplication (LCA) using the OES wage assigned. 

According to the DHS’s proposed rule, only thoseH-1B CAP registrations offering the highest OES wage levels would be selectedfor filing in the 2021 CAP. This means that DHS would first accept Level IVwages, then Level III, etc. 

Keeping with the 2020 CAP changes, theUSCIS’s current intent is to continue its electronic pre-registration system,requiring first a registration period of CAP petitions, and a later period offiling. DHS’s proposed rule intends to add a wage level question to itspre-registration form so that only the highest wage levels are selected forfiling. 

The Master’s CAP, an allotment of 20,000 H-1Bsdesignated only for candidates possessing a master’s degree from an accreditedU.S. university, is also in place for the 2021 CAP period. 

The proposed rule is currently acceptingcomments from the public until December 2, 2020, to which DHS will then respondand may alter some elements of the rule. 

MU Law will be hosting a free webinar for ourclients and friends on Monday, November 16, 2020 at 2PM Eastern (1PM Central). Interestedclients and friends can register for our webinar by clicking on the link below.

Atour recent webinar, MU attorneys discussed the new DOL wage rule and how itcould greatly raise prevailing wages for H-1B petitions and EB-2 and EB-3 greencards.  Moreon this topic here.   Wewant to give our clients and friends two updates: 

1.  Lawsuit.  MU along with some clients and the US Chamberof Commerce have been working on a lawsuit against both the DOL and theUSCIS.  USChamber of Commerce press release.  The lawsuit seeks to overturn both the newDOL wage computation used in their OES wage survey, and the three harsh changesto the H-1B definition.  The lawsuit wasfiled last week and there is a hearing on the case set for November 23.  If successful, the DOL and USCIS regulationscould be nullified. 

2.  Alternative Wage Surveys.  The new DOL rule only raises the OES survey,which is the default survey used in H-1B cases, and in PWDs, which are used inEB-2 and EB-3 green card petitions.  Thelaw still allows “alternative surveys.” An alternative survey is any published or private survey that meetscommon statistical metrics, is recent, is geographically relevant, and coversthe position in question.  

The Department of State has just issued the November 2020 VisaBulletin. This is the second Visa Bulletin of Fiscal Year 2021. This blogpost analyzes this month’s Visa Bulletin.

November 2020 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

Importantly, the USCIS announcedthat it will allow the more favorable Date of Filing chart forI-485 Adjustment of Status. This means that all employment-based immigrants inEB-1, EB-2 or EB-3 can file their I-485s starting October 1, 2020.  However, if they are natives of India orChina, their priority date must be earlier than these dates: 

For reasons that remain unclearthe Department of State held back on publishing this Visa Bulletin about 2weeks longer than usual.  Nevertheless,the Visa Bulletin showed continued positive trends. 

Both the Philippines andWorldwide (All Other) EB-3 continue to be current.  We expect these categories to stay currentfor the foreseeable future.  The onlyconstraint to the Philippine EB-3 visas being issued is the capacity at theEmbassy in Manila.  It remains to be seenhow increasing COVID infection rates bear on embassies capacities.

The good news extended to India.  India EB-1, EB-2 and EB-3 all movedforward, ranging from several weeks to several months in all of thesecategories.  Similarly, China EB-1,EB-2 and EB-3 all moved forward at about the same rates as India.

MU expects that future VisaBulletins will continue to have positive news, including continued forwardprogression in the Chinese and Indian categories.  We also expect the Philippine and Worldwidecategories will remain current for the foreseeable future.

Effective October 8, 2020, theDepartment of Labor (DOL) issued a new ruledramatically increasing prevailing wages for H-1B, EB-2, and EB-3 workers.  The new rule changes the computation of thefour levels of wages when the DOL is using the Occupational Employment Statistics(OES).  For more detail about thesechanges, you can read our previousblog post on the rule.

A prevailing wage determination can onlybe issued by the DOL. The prevailing wage is based on the job duties, jobrequirements, and job location as provided by the employer on a prevailing wagerequest.  The prevailing wage for anH-1B, EB-2, or EB-3 worker, is the wage the foreign national is required to bepaid by his or her employer upon approval of the H-1B or green card.

Frequently, employers and foreignnationals review the Foreign Labor Certification (FLC) Data Center website whichpublishes the OES wages and refer to the OES wages as the “prevailing wages.” TheFLC Data Center wages are not prevailing wages. A prevailing wage determination(PWD) can only be issued by the DOL.

The OES is only one wage library theDOL can consult when issuing a PWD.  TheDOL can also review private wage surveys, if the survey is provided by theemployer at the time the wage request is made. In order for a private wage survey to be accepted by the DOL, it mustmeet certain, specific requirements.  Formore information about those requirements and which surveys might apply to yourcases, please contact MU.

The new DOL wage rule only applies towage determinations issued by the DOL or LCAs certified by the DOL on or afterOctober 8, 2020.  Approved H-1Bs orI-140s are not required to be updated with the new wage calculations.  In addition, wage determinations which havebeen issued by the DOL and are valid through 2021 are not required to beupdated.

Finally, there are severallaw suits which have already been filed challenging the new rule.  Please continue to read our blog for regularupdates on these pending law suits and the wage rule. 

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B