Visa Lawyer Blog

Articles Posted in Employment-Based Categories

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Welcome back to Visalaywerblog! We kick off the start of a brand new week with the release of a very interesting Question and Answer session recently published by the Department of State.

This Question and Answer session took place on December 11, 2020, by and between the Department of State and the American Immigration Lawyers Association (AILA)’s Department Liaison Committee.

The Question and Answer session addressed a broad range of visa-related questions including burning questions regarding the phased reopening of Consulates and Embassies worldwide, national interest exception procedures, expansion of visa interview waivers, information regarding visa cancellations, MRV validity, the treatment of IV applications with approved I-601A Provisional Waivers, expired immigrant visas, pandemic related delays in obtaining documents for Consular related requests, and much more.

We have rounded up the most interesting questions and responses in this post. To read the government’s complete responses to questions asked, please click here.

Phased Reopening of Routine Visa Services

Q: It is AILA’s understanding that consular posts will reopen in phases based on the following Diplomacy Strong Framework included in Appendix A.

Please confirm:

  • Are the phases and priorities listed in Appendix A still accurate, or have there been any modifications to the Diplomacy Strong framework?
  • Are the phases in Diplomacy Strong standard across posts or are they merely guidelines within which posts have some flexibility in terms of setting priorities?
  • Please confirm whether a post will always be at the same phase for both IV and NIV processing, or whether it may be at a certain phase for IV processing and a different phase for NIV processing (e.g., If Sydney is at phase 3 for IV services, must it also be at phase 3 for NIV services?).
  • While we see references to Diplomacy Strong on a variety of post websites, it is not clear what phase the post is operating under. Would DOS advise posts to share their current operating phase on their websites in order to better inform the public of what they are prioritizing?

A: Although phased reopening of routine visa services originally corresponded with phases of Diplomacy Strong, posts were instructed on November 12 that they are no longer obligated to be in a specific Diplomacy Strong phase before providing additional categories of visa services.

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Welcome back to Visalaywerblog! In this blog post we share with you an interesting new piece of legislation that will have a profound impact on the visa quota system for family-based and employment sponsored immigration.

The Fairness for High Skilled Immigrants Act (S. 386) was unanimously passed by the U.S. Senate on December 2, 2020 and sent back to the House of Representatives for approval.

At its core, the bill seeks to eliminate per-country numerical limitations for employment-based immigrants and increase per-country numerical limitations for family-sponsored immigrants.

Previously, the House of Representatives had passed its own version of the bill, but it has since been amended substantially by the Senate.

Amendments were added to Sections 8 and 9 of the bill. These changes are in addition to those amendments previously introduced by Senator Grassley on H-1B visas, Senator Perdue creating a set aside for Schedule A health care professionals and their family members, and Senator Durbin’s amendments which include a delayed effective date of the bill, transition periods for EB-2 and EB-3 immigrants, early adjustment filing provisions, and an age out protection for children.

What does the December 2020 version of this bill look like?

Among its major provisions are the following.

Green card reforms:

  • The bill would phase out employment-based per county limits on green cards: The main purpose of the legislation is to treat all employment-based immigrant visa applicants on a first-come, first-served basis without regard to birthplace. Under current law, immigrants from no single birthplace can receive more than 7% of the total number of immigrant visas or green cards issued in a year unless they would otherwise go unused. The effect of this provision is that while Indians are half the skilled employer-sponsored applicants, they receive just 10 percent of those green cards and—as a result—are nearly 90 percent of the backlogged applicants.
  • The bill would provide for an 11-year phase out period: The bill’s green card changes would take effect on October 1, 2022. For the EB-2 and EB-3 categories for non-executive level employees of U.S. businesses, the bill guarantees immigrants which are not from the top two origin countries (India and China) a certain percentage of the green cards for 9 years: year 1 (30%), year 2 (25%), year 3 (20%), year 4 (15%), years 5 and 6 (10%), and years 7 through 9 (5%). No more than 25 percent of these “reserved” green cards can go to immigrants from any single country. No more than 85 percent of the other “unreserved” green cards can go to a single country (India). In addition, a minimum of 5.75% of all EB-2 or EB-3 green cards will go to immigrants from these non-top 2 countries for 9 years prioritizing spouses and minor children of immigrants already in the United States and immigrants awaiting visas abroad.

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Welcome back to Visalawerblog! In this post, we discuss the newly released visa bulletin for November 2020 which outlines the availability of immigrant visa numbers for family-sponsored and employment-based preference categories.

Impact of April 22nd Presidential Proclamation

As a preliminary matter, we would like to remind our readers that presidential proclamation 10014 signed into law on April 22, 2020, temporarily suspends the entry and issuance of immigrant visas at U.S. Consulates and Embassies worldwide for the following types of immigrants until December 31, 2020.

*Note: Applicants residing in the United States are unaffected by P.P. 10014 and may apply for adjustment of status with USCIS provided their priority date is current on the visa bulletin.

  • Spouses and children of green card holders (US citizens are not affected) applying at the consulate
  • Parents of US citizens applying at the consulate
  • Brothers and sisters of US citizens applying at the consulate
  • Sons and daughters (over 21 years of age) of US citizens applying at the consulate (children under 21 years of age of US citizens are not affected)
  • Sons and daughters (over 21 years of age) of green card holders applying at the consulate
  • EB1A extraordinary abilities and their family applying at the consulate
  • PERM EB2 employment based (NIW is not affected) and their family applying at the consulate
  • PERM EB3 employment based and their family applying at the consulate
  • EB4 religious workers immigrants applying at the consulate

Unfortunately, this proclamation applies to the majority of family-sponsored preference categories which means that U.S. Consulates and Embassies worldwide will not issue visas to these individuals until the visa ban is lifted after December 31, 2020.

It is possible that President Trump may choose to extend the proclamation beyond December 31, 2020 if he finds it necessary. However it is unlikely to remain in effect after Joe Biden becomes President on January 20, 2021.

Suspension of Routine Visa Services Continues

As an additional note, although spouses and minor children of U.S. Citizens applying for immigrant visas at the Consulate are not impacted by P.P. 10014, the majority of Consulates and Embassies nationwide have suspended routine visa services until further notice. Applicants with emergencies or urgent travel needs may request expedited visa processing with the National Visa Center. We strongly encourage applicants to obtain legal assistance to help expedite visa interviews where the applicant can demonstrate extreme hardship to the U.S. Citizen relative.

Other Visa Bans May Apply 

Certain immigrant visa applicants who are not impacted by P.P. 10014, may still be impacted by other presidential proclamations restricting visa issuance and travel to the United States.

For instance, beginning January 2020 the President issues a series of Coronavirus proclamations, which similarly restrict and suspend the entry into the United States, of immigrants and nonimmigrants, who were physically present within the Schengen Area, Brazil, China, the United Kingdom, Ireland, and Iran, during the 14-day period preceding their entry or attempted entry into the United States.

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Happy Monday! Welcome back to Visalawyerblog. We begin the start of the new week with some disappointing news regarding premium processing fee increases effective today October 19, 2020.

On October 16, 2020, the United States Citizenship and Immigration Services (USCIS) quietly announced a substantial increase in filing fees for premium processing requests filed on Form I-907 that became effective today October 19, 2020,  in compliance with H.R.8337 (Public Law No. 116-159) a continuing appropriations bill that became public law on October 1, 2020.

Pursuant to this new bill, starting today USCIS will increase the filing fee for Form I-907 Request for Premium Processing from $1,440 to $2,500, for all filings except those from petitioners filing Form I-129 Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant worker status.

The premium processing fee for petitioners filing Form I-129 requesting H-2B or R-1 nonimmigrant status is increasing from $1,440 to $1,500.

What is premium processing?

Premium processing provides expedited processing for Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. USCIS guarantees processing within 15 calendar days to those who choose to use this service.

The 15 calendar day period begins when USCIS properly receives the current version of Form I-907, Request for Premium Processing Service, at the correct filing address noted on the form.

Once the I-907 is received, USCIS either issues an approval notice, denial notice, notice of intent to deny, or request for evidence within the 15-calendar day period.

H.R. 8337 will soon expand premium processing service to applications to change or extend nonimmigrant status, applications for employment authorization, and other types of benefit requests.

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Happy Monday! Welcome back to Visalawyerblog. We kick off the start of a brand new week with very exciting news.

We are happy to report that on October 1, 2020, Congress passed H.R. 8337, an appropriations bill that will expand the availability of premium processing service provided by the United States Citizenship and Immigration Services (USCIS) to a larger pool of applicants for immigration benefits.

The legislation calls for expansion of premium processing to most employment-based immigration applications and potentially all USCIS benefits. This move could prove enormously beneficial especially during the Coronavirus pandemic to help move cases along more quickly than ever before. Applicants who request an employment authorization document (EAD) for example can seek premium processing service along with their applications, allowing for EADs to be issued within 15 calendar days.

During this pandemic, the processing of EAD applications has slowed significantly with most taking at least 7 months or longer to be issued. This new legislation will dramatically improve processing times for those that are willing to pay for premium processing service.

Before H.R. 8337, USCIS allowed certain employment-based petitioners to request premium processing service for E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ (blanket L-1), O-1, O-2, P-1, P-2, P-3, Q-1, R-1, TN-1 and TN-2 applications for a fee of $1,440 with guaranteed processing of applications within 15 calendar days. For immigrant petitions, premium processing was available, with certain exceptions, for the employment-based first, second and third preferences (EB-1, EB-2 and EB-3).

What types of petitions will benefit from the expansion of premium processing service?

The new legislation will now allow premium processing service for:

(A) employment-based nonimmigrant petitions and associated applications for dependents of the beneficiaries of such petitions;

(B) employment-based immigrant petitions filed by or on behalf of aliens described in paragraph (1), (2), or (3) of section 203(b); [the first three employment-based preferences]

(C) applications to change or extend nonimmigrant status;

(D) applications for employment authorization; and

(E) any other immigration benefit type that the Secretary deems appropriate for premium processing.

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Our office has been eagerly awaiting the release of the October visa bulletin which ushers in the beginning of a brand-new fiscal year. As our readers will know, a lot has been happening in the world of immigration.

Since March of 2020, U.S. Consulates and Embassies nationwide have suspended routine visa services to the public amid the Coronavirus pandemic. To make matters even more complicated, the President issued a series of Presidential Proclamations suspending the issuance of immigrant visas for most family-sponsored preference categories with limited exceptions including spouses and minor children of United States Citizens. In this post we cover the good, the bad, and the ugly of the release of the October 2020 visa bulletin.

THE BAD AND THE UGLY –

Most Family Sponsored Categories Unable to Obtain Immigrant Visas Due to Consular Closures and Presidential Proclamations

For the most part, nearly all family-sponsored categories on the visa bulletin are impacted by the Presidential Proclamations and individuals impacted cannot obtain an immigrant visa at the U.S. Consulate until the Proclamations terminate on December 31, 2020.

What Family Preference Categories are Impacted?

Presidential Proclamations 10014 and 10052 together suspend the entry of and issuance of visas for the following types of family-sponsored immigrants until December 31, 2020:

  • F2A Spouses and children of green card holders applying at the consulate
  • F-2B Unmarried sons and daughters of green card holders applying at the consulate (21 years of age or older)
  • F-3 Married sons and daughters meaning of US citizens applying at the consulate (children under 21 years old of US citizens are not affected)
  • F-4 Brothers and sisters of US citizens applying at the consulate

As you can see these categories make up the vast majority of the family-sponsored preference categories on the visa bulletin. Only very narrow categories of individuals have been specifically exempted from the Proclamations.

Those exempted include the following:

  • Spouses and children of US citizens applying at the consulate are not affected
  • Sons and daughters under 21 years old of US citizens applying at the consulate are not affected
  • Lawful Permanent Residents of the U.S.
  • Members of the U.S. Armed Forces and any spouse and child of a member of the U.S. Armed Forces
  • Aliens seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional
  • Aliens seeking to enter the U.S. to perform medical research or other research intended to combat the spread of COVID-19
  • Any spouse any unmarried child under 21 years of age of any such alien who is accompanying or following to join the alien
  • Any alien applying for a visa pursuant to the EB-5 Immigrant Investor Program
  • Aliens whose entry furthers important United States law enforcement objectives
  • Any alien seeking entry pursuant to a Special Immigrant Visa in the SI or SQ classification, and any spouse and child of any such individual
    • SI: Certain aliens employed by the U.S. Government in Iraq or Afghanistan as translators or interpreters
    • SQ: Certain Iraqis or Afghans employed by or on behalf of the U.S. Government
  • Any alien whose entry would be in the national interest of the United States (national interest waivers)
  • Aliens seeking entry for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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Welcome to the start of a new week! In this blog post we discuss an exciting new announcement and a quick reminder regarding upcoming increases in filing fees.

USCIS Announces Extension of Flexibility for RFE, NOID, and Similar Responses

On September 11, 2020, the United States Citizenship and Immigration Services (USCIS) extended its previous policy granting applicants additional time to respond to requests for evidence, notices of intent to deny, and such similar notices.

Specifically, USCIS has stated that an applicant who has received a request, notice or decision dated between March 1, 2020 and January 1, 2021, may respond to such request or notice within 60 calendar days after the due date/deadline provided in the notice or request.

This flexibility is granted for the following types of notices, so long as the notice or request is dated between March 1, 2020 and January 1, 2021:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant;
  • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

This flexibility has been provided to allow applicants the opportunity to gather important documentation needed to respond to the request or notice, given the extraordinary delays applicants have been facing in obtaining documents during the Coronavirus pandemic.

This policy ensures that USCIS will not take any adverse action on a case without first considering a response to the request or notice issued to the applicant.

USCIS will also consider a Form N-336 and Form I-290B “received” up to 60 calendar days from the date of the decision, before taking any action.

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We are just 60 days away from Election day in the United States which falls on Tuesday, November 3rd. Do you know where your candidate stands on immigration? In this post, we cover Presidential nominee Joe Biden’s stance on important immigration issues, and everything you need to know about his vision for America.

We would also like to take this opportunity to remind those of our readers who are American citizens to exercise their right to vote. It is your civic duty and will help shape the nation’s immigration policy for the next four years. For voter registration information please click here.

Immigration under Joe Biden

If elected President of the United States, Joe Biden has stated that he will enact a number of policies during his four-year term. Among these policies, he promises to take urgent action to undo destructive policies implemented by the Trump administration, modernize the immigration system, reassert America’s commitment to asylum-seekers and refugees, and implement effective border screening.

Comprehensive Immigration Reform

First and foremost, Joe Biden supports working with Congress to pass a comprehensive immigration solution that would offer nearly 11 million undocumented immigrants a path to citizenship. As vice president, Joe Biden worked alongside former President Obama to push forward a bill that would do just that. Unfortunately, the Republican-led Congress refused to approve the bill, leaving millions of undocumented immigrants in limbo including Dreamers.

Joe Biden advocates for the creation and expansion of the Deferred Action for Childhood Arrivals program (DACA), the Deferred Action for Parents of Americans (DAPA) program,  the Central American Minors program, which allows parents with legal status in the U.S. to apply to bring their children from Central America to live with them, and the creation of a White House task force to support new Americans to integrate into American life and their communities.

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Welcome to a start of a brand-new week. In this post we provide the latest updates in the world of immigration.

New Form I-765 Application for Employment Authorization

We would like to inform our readers that the United States Citizenship and Immigration Services (USCIS) will publish a new edition of Form I-765 Application for Employment Authorization with edition date 8/25/20. Beginning August 25, 2020, USCIS will only accept the new edition of Form I-765 (8/25/20).

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Great news! The Department of State has released the visa bulletin for August 2020 outlining the availability of immigrant visa numbers for the upcoming month.

NOTE: Adjustment of Status Filing Charts August 2020

For Family-Sponsored Filings:
In the F2A category, there is a cutoff date on the Dates for Filing chart.  However, the category is “current” on the Final Action Dates chart.  This means that applicants in the F2A category may file using the Final Action Dates chart for August 2020.

For all the other family-sponsored preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for August 2020.

For Employment-Based Preference Filings:
For all employment-based preference categories, you must use the Final Action Dates chart in the Department of State Visa Bulletin for August 2020.

August Visa Bulletin Cutoff Dates

Employment Based Categories

According to the Department of State’s August Visa Bulletin, the following cutoff dates will apply for the issuance of an immigrant visa for employment-based categories:

  • EB-1: All countries remain current during the month of August except for China and India. EB-1 China will advance by almost six months to February 8, 2018, while EB-1 India will advance by nine months to February 8, 2018.
  • EB-2: All countries except EB-2 China and India remain current. EB-2 China will advance by more than two months to January 15, 2016, and EB-2 India will remain at July 8, 2009.
  • EB-3 Professional and Skilled Workers: All countries except EB-3 India and China will advance by almost a full year to April 1, 2019. Cutoff dates for EB-3 China will advance by almost 8 months to February 15, 2017, and for India by four months to October 1, 2009.
  • EB-5: EB-5 India will remain current, joining all other countries except for EB-5 China and Vietnam.  China’s cutoff date will advance by two weeks to August 8, 2015, while Vietnam’s cutoff date will advance by more than two months to July 22, 2017

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