|The world awaits the outcome of the 2020 U.S. Presidential election. When we learn who wins, we will be able to provide predictions on how immigration laws and policies may continue to change and what your business can expect for 2021 and beyond. Our firm will continue to provide updates on our website and in our monthly webinars. Be sure to sign up here if you are not already receiving our email updates. Please forward this email to others who may be interested in these important updates.
The changes we are seeing now are unprecedented in our firm's 25-year history. Throughout the past month and continuing today, Weaver Schlenger has been focused on preparing and filing the AOS and I-140 EB3 "downgrade" petitions, including the mandatory Form I-944 public charge requirement. The sheer volume meant that not all cases could be filed in October. Fortunately, as expected, the November Visa Bulletin (released on October 29) extended the opportunity for filing the AOS applications under the early-filing chart beyond October.
October Visa Bulletin, explained
Each year, the U.S. can approve a set number of green cards (i.e., immigrant visas): 140,000 for employment-based immigrants, inclusive of all categories (EB-2 Master's degree, EB-3 Bachelor's degree). This number is divided equally among all countries, and each country is limited in the number of green cards available. Accompanying family members (spouse and children) are counted against the per-country limit per EB category. Historically, the demand from certain countries (India and China) has exceeded the annual 7% per-country allocation (9,800 total in all EB categories), and this has created a backlog. The backlog can be several years, if not decades.
The Visa Bulletin, issued by the Department of State (DOS) on a monthly basis, determines when someone can file for the final stage of the green card process (the AOS, or adjustment of status) based on their Priority Date, which is established on the date when the sponsoring employer files a PERM Labor Certification or the Form I-140 Immigrant Visa Petition. The Visa Bulletin calculates future availability of Immigrant Visas based on recent past filings. Once the DOS has issued the Visa Bulletin, an individual must wait for U.S. Citizenship and Immigration Services (USCIS) to decide whether it will accept the AOS based on the DOS Dates for Filing (i.e., early filing) chart. More information about the Visa Bulletin can be found here.
Individuals wish to file the AOS as early as possible because:
- They will become eligible for the EAD and AP (Employment Authorization Document and Advance Parole travel document) and may no longer need to visit consular offices for visa stamp applications.
- Their spouse and children will become eligible for the EAD and AP.
- They will become AOS Portable after 180 days, which means they are permitted to change jobs, locations or employer (to a job in a same or similar occupational classification), and they will be permitted to continue with the green card application. In the event that their employment is terminated, they will be able to continue with the green card process if they can find a similar job with a new employer.
On September 24, the DOS issued the Visa Bulletin for October 2020. Traditionally, the October Visa Bulletin sees some forward movement in Priority Dates as the government's fiscal year begins October 1. The October 2020 Visa Bulletin was historic in many ways:
- The Employment Based categories advanced significantly, due to unused Family Based visas in the last fiscal year (a result of COVID-related Consulate closures, the Presidential Proclamation suspending most immigration, and travel bans). These were rolled into the Fiscal Year 2021 (FY2021) Employment Based numbers, by law. The Employment Based allocation of Immigrant Visas has reached an all-time high of 261,500. To provide perspective, the previous all-time high was 158,000.
- Because the Priority Dates advanced, many individuals with approved I-140s who had been waiting years became eligible file their AOS in October.
- The USCIS announced it would accept AOS filings based on the Dates for Filing in October 2020. Typically, the USCIS accepts only AOS filings that are based on the Final Action Dates. USCIS can decide to use the Dates for Filing when it foresees that there are more Immigrant Visas available than there is demand.
- The EB-3 Dates for Filing for India in particular advanced much more quickly than the EB-2 dates, which opened the possibility of "downgrading" previously approved EB-2 I-140s to EB-3 in order to qualify to file the AOS in October. Note: Individuals are able to concurrently file the AOS with the I-140 when there is an Immigrant Visa number available or the Date of Filing is after their Priority Date.
The just-released November 2020 Visa Bulletin showed slight movement forward for India and China in the Final Action Dates, and stayed the same for Dates for Filing in the EB-1, EB-2 and EB-3 categories. The USCIS confirmed that it will accept AOS applications using the Dates for Filing in November 2020.
EB-3 Downgrades of I-140
In a Policy Memo from 2007, the USCIS opened the door for second I-140 petitions to be filed based on an approved PERM labor certification. Because in October 2020 and November 2020, the EB-3 dates are later than the EB-2 dates for India, many employees born in those countries are seeking to "downgrade" their category so that they can take advantage of the concurrent filing option and file both the I-140 "downgrade" and the AOS this month.
Considerations to this approach include:
- In future Visa Bulletins, any of the following is possible: EB-3 numbers could continue to be more beneficial than EB-2; both EB-2 and EB-3 categories could advance significantly, allowing more individuals to file AOS; and/or the USCIS could decide to not accept AOS cases under the Dates for Filing.
- By the filing of a second I-140 based on an approved PERM to qualify under EB-3, USCIS may elect to revoke the previously approved EB-2 petition. If this happens, and at a later date the EB-2 numbers are more advantageous, it could mean the individual is stuck in the EB-3 category. Note: In the past, the difference between selecting "new petition" or "amended petition" for the second I-140 seemed to address the issue of revocation. However, in October we heard of several cases where the USCIS rejected I-140s when the box for "new petition" was checked, indicating the employer must provide a new, unexpired labor certification. The government has not confirmed whether this trend is a reflection of a new policy or merely erroneous activity.
- Even if the previous I-140 is not revoked, the USCIS may take the position that the individual has now elected to be processed in the EB-3 category, and will not be able to choose EB-2 or EB-3 based on fluctuating processing times.
- The Policy Memorandum which provides the basis for the "downgrade" I-140 filings can be withdrawn at any time, without notice. Policy Memoranda are not regulations nor laws, but merely reflect the policy and objectives of an agency at a particular time.
A few of our clients are not supporting the EB-3 "downgrade" option due to the risks and the potential volatility of Priority Dates (i.e., EB-2 may advance significantly in the coming months, allowing the employee to file the AOS under the Final Action dates). Some of our clients are supporting the EB-3 "downgrade" to allow the employee to file the AOS as soon as possible. Other clients are supporting the EB-3 "downgrade," but will not cover the legal and USCIS fees involved. Current USCIS regulations permit the employee to pay the costs of the I-140 petition.
For those wishing to proceed this month and last month with I-140 downgrades, Weaver Schlenger has provided notice of the risks involved, including the recent trend of USCIS rejections for "new petitions" and asked each applicant to confirm they wish to file as a "new petition."
Form I-944 Now Required for All AOS Cases
October also brought the reinstatement of the Form I-944, Declaration of Self-Sufficiency. The Form I-944 is now required with all AOS filings filed after October 13, following a U.S. Court of Appeals decision in September (Note: The I-944 and public charge rule is still being litigated in federal court; just in the past 48 hours a district court vacated the public charge rule only to be stayed by an appeals court). All cases filed after February 24, 2020 will require the Form I-944 and supporting documents, unless the AOS was approved between July 29, 2020 (date of injunction) and September 11, 2020 (date the injunction was stayed). Any AOS cases filed between July 29, 2020 and October 12, 2020 (and not approved) without a Form I-944 will receive a Request for Evidence (RFE) to provide the Form I-944.
As of today, the 18-page document is required for each AOS applicant, including spouses and children, and calls for documentation of tax return filings and all financial liabilities/debts and assets to ascertain whether an applicant is likely to become a public charge. Such documentation includes for each applicant: a credit report, bank statements, annuities, stocks and bonds, retirement accounts, real estate holdings, mortgages, car loans, unpaid child or spousal support, credit card debt, bankruptcy filings. We have found that the entire I-944 packet of supporting documentation per applicant is approximating 500 pages!
Among other required evidence, the applicant must provide proof of health insurance in the form of:
- Copy of each policy page showing the terms and type of coverage, or
- Letter on company letterhead or other evidence from the health insurance company showing the terms and type of coverage, or
- Latest Form 1095-B, Health Coverage; or Form 1095-C, Employer-Provided Health Insurance Offer and Coverage with evidence of renewal of coverage for the current year.
Employees may be asking their Human Resources team to assist with providing proof of health insurance.
Also in October, the DOL and USCIS issued interim final rules that will have noteworthy impacts on employers who sponsor H-1B visas. The DOL rule took effect immediately (October 8) while the USCIS rule will become effective December 7 (60 days following publication). Lawsuits to enjoin both rules have been filed, though it is not clear whether or how soon injunctions will be granted.
The DOL rule substantially increases the prevailing wage required for Labor Condition Applications associated with H-1B petitions as well as PERM labor certifications.
- Level I wages increased from the 17th percentile to 45th percentile
- Level II wages increased from the 34th percentile to 62nd percentile
- Level III wages increased from the 50th percentile to the 78th percentile
- Level IV wages increased from the 67tth percentile to the 95th percentile
Frustratingly, the DOL has not provided prevailing wage data on its website for many occupations, instead setting the minimum salary at $208,000 per year or $100 per hour, even for entry-level positions. We do note that in Santa Clara County (California), the Level 2 wage for a computer systems analyst went from $101,587 per year to $151,154 per year. In Travis County (Texas), the Level 1 wage for an applications software developer went from $69,118 per year to $93,662 per year.
Where an H-1B occupation fits between two DOL Standard Occupational Classifications (SOC), the DOL will default to the SOC code with the higher wage. Employers who may wish to rely on an SOC code with lower prevailing wages must consider the July 2020 Memorandum of Understanding between the DOL and USCIS to share information regarding possible H-1B violations including employers who have a pattern of picking SOCs with lower wages or have recently deviated from certain job classifications.
Employers who subscribe to private surveys (such as Radford) may still rely on these for the time being, and this option may provide relief from the new higher DOL wages.
The new, higher wages impact all new H-1B petitions including changes of employer, extensions of status, and amendments, as well as PERMs.
The accompanying USCIS rule will tighten the definition of specialty occupation to require a direct relationship between the specific degree field and the position duties. It will become more difficult to list alternate acceptable degree fields as the employer must establish how each identified degree provides highly specialized knowledge directly related to the job duties.
Furthermore, when the H-1B employee will work at a third-party or customer site, the employer must show that an actual "employer-employee relationship" exists through a totality of the circumstances, including such factors as whether the employee uses the employer's proprietary information and whether the employee produces an end-product directly linked to the petitioning employer's business. The employer will be required to provide contracts and itineraries and agree to site visits at the third-party location. In third-party work site situations, the H-1B petition will be approved for only one year.
Although much of the new rule is centered on third-party sites, as we have seen in recent years the USCIS issues RFEs on the employer-employee relationship indiscriminately (i.e., whether there is third-party placement or not). We expect more of the same.
In addition, the USCIS tried to implement new forms and increased fees recently but was enjoined from doing so by a federal district court judge.
Looking ahead to the upcoming H-1B lottery for FY2022, the Department of Homeland Security is trying to change the rules from a random selection process to selection based on highest wage earners. The notice and comment period ends December 2, 2020.
The bill that funds the government through December 11, 2020 includes provisions to expand the types of cases eligible for Premium Processing and increases the Premium Processing fees. Although the law took effect immediately, the Premium Processing provisions required implementation by the USCIS. On Friday, October 16, the USCIS announced that for cases currently eligible for Premium Processing, the fees would increase effective the next business day on Monday, October 19.
Fees for H-1Bs, L-1s and certain I-140s went up from $1,440 to $2,500.
Once further implemented by USCIS, the bill will:
- Expand Premium Processing to
- All employment-based nonimmigrant petitions (Form I-129) and associated applications for dependents;
- All Form I-140 petitions;
- Form I-539 applications; and
- Form I-765 applications.
The law will require rulemaking to set fees for expanded premium processing services, but it must be consistent with the following:
- EB-1 petitions for Multinational Managers and Executives or EB-2 NIW petitions - Fee is no greater than $2,500 and processing time is no greater than 45 days.
- Change of status requests for F, J and M - Fee is no greater than $1,750 and processing time is no greater than 30 days.
- Change of status requests for dependents seeking E, H, L, O, P and R - Fee is no greater than $1,750 and processing time is no greater than 30 days.
- Form I-765 Application for Employment Authorization Document (EAD) - Fee is no greater than $1,750 and processing time is no greater than 30 days.
Travel Considerations including Consulate Closures
We recommend against international travel because the risk of being unable to return to the U.S. is high, and current travel conditions may change with little notice as the pandemic numbers change from one week to the next.
Current travel restrictions include:
- No green card processing at any consular posts (some exceptions, such as spouses of U.S. citizens and physicians, nurses and other healthcare workers)
- No nonimmigrants and immigrants who were physically present in Brazil, China, Iran, the Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland), the United Kingdom and Republic of Ireland in the 14-day period preceding the seeking of entry to the U.S. Anyone with a valid visa stamp who wishes to travel from one of these countries would need to quarantine in a third country for 14 days before attempting to travel to the U.S.
- No H-1Bs, H-2Bs, J-1 and L-1s (and related spouses) who were outside the U.S. on June 24, 2020 and in need of a visa stamp. Exceptions: If your employer is a named plaintiff in the National Association of Manufacturers (NAM) vs. Department of Homeland Security lawsuit or if you qualify for a National Interest Exception to the Presidential Proclamations (NIE). To apply for an NIE, you must first obtain a visa appointment through the consulate website. Most consular offices are operating with limited hours and staff due to COVID-19, so appointments may be scheduled for several months in the future.
- The land borders between the U.S., Canada and Mexico remain closed to "non-essential" travelers. This prohibition allows for commercial and health-related activities such as supply chains of food, fuel and medicine, however. Air travel is subject to the discretion of the airlines and immigration inspectors.
If your employee must travel for emergency reasons, we recommend consulting with your Weaver Schlenger attorney in advance.
End of Year Reporting
If your HR or legal team would like immigration metrics for calendar year 2020 (or your fiscal year end), kindly discuss in advance with your Weaver Schlenger immigration team. We are happy to provide training on running reports via your HR immigration portal or customize reports to meet your specific needs.
A Final Note
It has been a rollercoaster ride in employment-based immigration, and 2020 is not over! We expect more changes, whoever wins the Presidential election, so stay tuned and please continue to check our website for updates.