News

The Department of Homeland Security (DHS) released a final rule changing the lottery for H-1B Visas. The ruling affects specialty occupation visas. The proposed selection process bases selection on the individual’s wages, rather than random selection. In other words, Wage Level IV registrations will be prioritized first, then Wage Level III, and so on until the selection process is complete.

On December 31, 2020, President Trump extended the freeze on H-1B Visas for Computer Occupations through March 31, 2021. The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise. It affects workers in a wide variety of fields, including tech workers who want to enter the country on H-1B visas, seasonal workers in the tourism industry and certain au pairs on J-1 visas. 

The freeze was originally enacted in April 2020, using 212(f) of the Immigration and Nationality Act which suspended the entry of of many immigrants. Additional limitations were added in June 2020, limiting H-1B, L-1, and other temporary visa holders. Litigation to stop the June 2020 proclamation stopped the additional limitations for many employers, however, U.S. consulates are dealing the difficulties due to the ruling's impact.

On December 2nd, 2020, Bill S.386 - Fairness for High-Skilled Immigrants Act of 2019 passed in the U.S. Senate. Bill S.386 is not effective as law yet, but is in the bill stage which means that until it is agreed to by both chambers of Congress and signed by the U.S. President, there still are several steps involved. Bill S.386 is an amended version of H.R. 1044 – Fairness for High-Skilled Immigrants Act of 2020, which was previously passed in the U.S. House of Representatives. Utah Senator Mike Lee - R is championing S.386 and Illinois Senator Dick Durbin - D had been blocking it. The two sides came to a compromise with amendments made in the bill which resulted in its passing.

On December 01, 2020, Judge Jeffrey S. White of the United States District Court for the Northern District of California declared that two rules from the Department of Labor (DOL) and the Department of Homeland Security (DHS) were violating the Administrative Procedures Act (APA).

The DHS recently announced that they are planning to expand the use of biometrics beyond background checks. Before, the DHS limited their collection of biometric data to fingerprints, photographs, and signatures from anyone over the age of 14. In their new proposed rule, they are planning to add DNA, iris scans, voiceprints, palm prints, and photographs for facial recognition. The main reason the DHS says it is moving toward these measures is to “leverage[e] readily available technology” and to move away from paper dependence for identity verification, according to the DHS Acting Deputy Secretary Ken Cuccinelli. However, the proposed rule includes language that would allow the DHS to use any other technology that develops in the future. This vague language could allow the DHS to use potentially any kind of new technology that develops, regardless of how invasive it might be.

*This article marks an update from the previous article titled After GC Filing: Important Immigration Considerations While Your I-485 is Pending posted on November 6, 2020.

As many ILBSG clients recently filed I-485 applications based on the October Visa Bulletin and others may seek to utilize the November Visa Bulletin, this article will address some important considerations for maintaining status until the I-485 is approved. This is critical, since failure to maintain status can result in a denial of the application. While most applicants include an I-765 application with the adjustment package, ILBSG does not advise relying on the EAD alone and instead encourages its clients to continue to maintain their current nonimmigrant status until the I-485 is approved.

As many ILBSG clients recently filed I-485 applications based on the October Visa Bulletin and others may seek to utilize the November Visa Bulletin, this article will address some important considerations for maintaining status until the I-485 is approved. This is critical, since failure to maintain status can result in a denial of the application. While most applicants include an I-765 application with the adjustment package, ILBSG does not advise relying on the EAD alone and instead encourages its clients to continue to maintain their current nonimmigrant status until the I-485 is approved.

Last month, the October Visa Bulletin was released by the US Department of State after being delayed providing significant improvements in priority dates for certain employment-based categories. This month, the November Visa Bulletin is similarly delayed. A liaison between the US Department of State and the American Immigration Lawyers Association (AILA) revealed that this was not due to the priority dates themselves, but due internal discussions about the language in the bulletin. AILA expects to see positive movement and that USCIS will continue using Dates of Filing in November.

Our firm saw a pattern of change in the Indian EB-2 and EB-3 priority dates in recent months that lead us to believe there could be an advantage in filing a petition under the EB-3 category. By strategically filing an EB-3 petition on your behalf leveraging your EB-2 approval, we can double-dip in the waiting line to file for I-485 and reduce the time usually required to file for your adjustment of status. Your EB-2 approvals will remain valid even after filing the additional EB-3 petitions, but since premium processing is prohibited for second filings, we suggest proactively filing the I-140 in the EB-3 as soon as possible.

Under certain conditions, children of U.S. armed forces members, U.S. government employees, or spouses of U.S. armed forces members and U.S. government employees stationed outside of the United States are eligible to acquire citizenship under INA 320.