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

 REGISTER HERE

Are you feeling dizzy from all the changes in immigrationlately?  Join us for this FREEwebinar 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 wagecalculations
• New USCIS rule regarding qualification for H-1B

Followingthe USCIS’sannouncement in late September that it will accept thefavorable October FY 2021 visa bulletin filing dates, many candidates have seena significant improvement in their chances to file a long-awaited adjustment ofstatus (I-485) application. 

Inthe October visa bulletin, all categories besides India and China are current.Notably, China’s and India’s EB3 categories give eligibility to file topriority dates that are morerecent than those of the EB2 category. 

Thereare three options for those looking to downgrade their I-140:

   1. Amendingthe existing I-140: An I-140 amendment is a request that theUSCIS reopen the EB2 case and convert the EB2 I-140 to an EB3 I-140.  The USCIS will again review the EB2 I-140 and,if the amendment is approved, convert the EB2 to EB3.  If the EB3 dates later retrogress, a newI-140 will have to be filed to obtain an EB2 priority date.

2. Filinga new I-140: A new I-140 includes a new wage request, anew Notice of Filing posting, a new labor market test and a new LaborCertification (when required).  A newI-140 may be required if the employee has moved to a new worksite, newposition, or new employer and cannot return to the worksite, position, oremployer listed on the approved I-140. Once the new I-140 is approved, if the employee’s priority date iscurrent, he/she can file an I-485. 

3. Filinga second I-140: A second I-140 can be filed in PERM case (one that requires a labormarket test) with an expired Labor Certification.  If an I-140 is filed during the six monthvalidity period of a Labor Certification, the Labor Certification becomes validindefinitely and can be re-used in subsequent I-140s.  A note that the USCIS will only accept anexpired Labor Certification if it was certified by the Department of Labor, sothis option is not available in Schedule A cases for PTs and RNs. 

Giventhe current “flip-flopped” EB3 vs. EB2 priority dates, below are MU’s“need-to-know” points for Chinese and Indian nationals considering an EB2 toEB3 “downgrade”:

•  Will EB3 filing dates always be morefavorable than EB2 filing dates?

Thevisa bulletin changes every month; there is no guarantee that the visa bulletincategories will remain the same for November or any of the following months.For this reason, it is unclear whether EB2 or EB3 will move faster in thecoming months or years.

•  Premium Processing

PremiumProcessing is generally not available when filing a second I-140. However, insome cases, the USCIS may accept a Premium Processing request.  Premium processing is usually available whenfiling an amendment or new I-140.

•  Can I retain both an EB2 and EB3I-140 approval simultaneously?

Yes,you can hold two approved I-140s. Those filing for an EB3 downgrade bysubmitting a new or a second I-140 will retain an EB2 I-140, and hold the EB3I-140 once it is approved. If the EB3 downgrade is filed as an I-140 amendmentto the EB2 petition, the USCIS will convert the EB2 priority to an EB3 priorityand the EB2 will no longer be viable.

•  Medical Exams

Medicalexams must be submitted to the USCIS within 60 days of the physician’ssignature and, once filed with the USCIS, are valid for 2 years.  If theI-485 approval is not issued within 2 years, the applicant will have to get anew medical exam.  The I-485 can be filed now – without a medical exam – andthe USCIS will issue an RFE or a letter of deficiency later in the process andask for the medical exam at that time. 

• Child Status Protection Act (CSPA)Considerations

Becausethe USCIS is accepting the rarely used Filing Dates chart, beneficiaries shouldbe reminded that the privileges of the Child Status Protection Act (CSPA) doNOT extend to filing dates. If you have a foreign-born child nearing the age of21, please contact your MU attorney immediately.

• Filing EB3 I-140 concurrently withI-485

Applicantswill want to weigh the costs at risk by filing a concurrent I-485. By firstfiling the I-140 and securing an approved I-140 prior to filing an I-485, thebeneficiary and employer avoid the risk of having the I-485 automaticallydenied because of a denial of the I-140. Keep in mind that an automatic denialof an I-485 when filing concurrently means that none of the associated filingfees will be refunded.

On September 29, 2020, a District Court Judge in California stopped the USCIS from implementing their new fee rule set to go into effect on October 2, 2020. 

USCIS announced that the USCIS will not implement their new fee rule on October 2, 2020, including the new USCIS filing fees and new USCIS form versions.

The current USCIS filing fees and forms should be used until a decision is issued in this case. 

The Department of State has justissued the October 2020 Visa Bulletin. This is the first VisaBulletin of Fiscal Year 2021. This blog post analyzes this month’s VisaBulletin.

October 2021Visa Bulletin

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

Table B: Dates of Filing

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

MU Law Analysis

This was the Visa Bulletinthat we have been expecting forsome time. Because of the State Department’s inability to issues immigrant visasfor much of 2020, there are many, many immigrant visas that are now part ofallocation for the new fiscal year. 

Both the Philippines andWorldwide (All Other) EB-3 have become 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. 

The good news extended toIndia.  India EB-1, EB-2 and EB-3all moved forward, about 3-5 months in all of these categories.  Similarly, China EB-1, EB-2 andEB-3 all moved forward at about the same rates as India.  We do not expect a retrogression in thesecategories. 

Thanksto aggressive lobbying and advocacy by the AAIHR, MU Law believes thatimmigrant visas are again being issued to applicants who apply through the USEmbassy in Manila.  This week, a notablenumber of MU Law clients have been granted their visas.

MULaw recommends that all nurses who have been waiting to schedule their appointment begin contacting the Embassy and reset their appointments.

Previously,the US Embassy in Manila had denied virtually every nurse immigrant visa forthe entirety of 2020, including in January and February, before the pandemicbegan.

The HWRA provides a partial answer tothis.  The HWRA allows 25,000 fullyqualified nurses into the US, who are only waiting to enter the US because ofbureaucratic delays and misallocated visa quotas.  The bill similarly allows doctors who havebeen waiting in the immigration queue for 10+ years to rise to the top of thequeue.  

And the HWRA does all this withoutadding a single visa to the annual quotas. The HWRA recaptures visas that were authorized by Congress but were notissued because of processing delays at government agencies. 

With 36 bipartisan Senators (out of 100) who have already signedon to co-sponsor the bill, the HWRA is among the most popular bills in theSenate.  In the House of Representatives,the co-sponsor list is approaching 70 members. As with the Senate, the House list is fully bipartisan with a nearly50/50 split between Democrats and Republicans. 

Congress is now back in session, aftertaking most of August off.  It isexpected that the Congress will take up additional COVID relieflegislation.  The Democrat-controlled Housepassed a partisan bill in May, which the Republican-controlled Senate hasdeclined to consider.  Now, theRepublican-controlled Senate is expected to do the same, and attempt to pass a “skinny” COVID relief bill. That bill is also not expected to go anywhere. 

After that it is expected thatDemocrat and Republican leadership will attempt to broker a deal that bothparties can hold their nose and agree to endorse.  Any agreement would have to come in the nextfew weeks.  HWRA advocates are activelyseeking to make the HWRA part of any deal. 

The first US presidential debate isset for September 29.  While not a truedeadline, September 29 almost serves as a soft deadline for the HWRA, at leastuntil after the US election on November 3. If no deal is reached by September 29, there is a chance that Congressreturns after the election and revisits a COVID relief deal.

USCISannounced that it will not have to furlough 13,000 employees, which isabout two-thirds its workforce.  Thefurloughs were set to begin on August 30, 2020. The agency cited, “unprecedented spending cuts and a steady increase indaily incoming revenue and receipts,” as the reason for the recession of thefurloughs.  USCIS first expected the furloughsto begin earlier in the summer.  Thosewere postponed until August 30.  Theyhave now been further averted.

USCIS Deputy Directorfor Policy Joseph Edlow warned, “averting this furlough comes at a severeoperational cost that will increase backlogs and wait times across the board,with no guarantee we can avoid future furloughs. A return to normal operatingprocedures requires congressional intervention to sustain the agency throughfiscal year 2021.”

The Department of Statehas just issued the September2020 Visa Bulletin. This is the last Visa Bulletin of Fiscal Year 2020.This blog post analyzes this month’s Visa Bulletin.

September 2020 VisaBulletin

Table A: Final ActionDates — Applications with these dates may be approved for their Green Card(Permanent Residency card) or Immigrant Visa appointment.

MU Law Analysis

There was not much to report this month.  This Visa Bulletin showed no real movement inthe categories, which was a bit surprising, although probably reflects thereality that very few immigrant visas are being issued overseas, and the USCISis backlogged in immigrant visa processing. Therefore, any movement in the categories was probably unnecessary.  USCIS’ backlog is expected to get worse inlight of their forthcomingfurloughs. 

MU Law expects thefavorable employment-based visa dates to continue next fiscal year.  We explained why on thisblog post.