Good H-1B News Update!

Posted on by Susan Lane

The interim final rule by the Department of Labor increasing H-1B and labor certification wages which went into effect on October 8, 2020 AND the Interim Final Rule significantly changing the standards for H-1B “specialty occupation” which was to take effect on December 7, 2020 have been set aside by the U.S District Court, Northern District of California, in the matter of Chamber of Commerce v. DHS. This could not be more welcome news!

DOL will now have to revert its wage database back to reflect the wages prior to the implementation of the wage hike rule. At this time, it is not known if DOL/DHS will appeal the court’s decision.  The judgment applies universally and not just to the parties to the litigation.

NEW NATURALIZATION CIVICS TEST

Posted on by Susan Lane

U.S. Citizenship and Immigration Services announced on November 13, 2020 plans to implement a revised version of the naturalization civics test. The agency first announced plans to revise the civics test in July 2019.

The civics test is administered to applicants who apply for U.S. citizenship and is one of the statutory requirements for naturalizing. Applicants who apply for naturalization on or after Dec. 1, 2020, will take the updated version of the test. Those who apply before Dec. 1, 2020, will take the current version of the test.

“USCIS has diligently worked on revising the naturalization test since 2018, relying on input from experts in the field of adult education to ensure that this process is fair and transparent,” said USCIS Deputy Director for Policy Joseph Edlow. “Naturalization allows immigrants to become fully vested members of American society, with the same rights and responsibilities as citizens by birth, and offering a fair test, which prepares naturalization applicants for these responsibilities, is of upmost importance to our agency.”

The revised test includes more questions that test the applicant’s understanding of U.S. history and civics, in line with the statutory requirements, and covers a variety of topics that provide the applicant with more opportunities to learn about the United States as part of the test preparation process. The revised test will not change the passing score, which will remain at 60%. Candidates must answer 12 questions correctly, out of 20 in order to pass.

USCIS will maintain the current guidelines for statutorily established special considerations for applicants who are 65 years old or older and have at least 20 years of lawful permanent resident status. These applicants will be asked 10 questions and must answer a minimum of six questions correctly in order to pass.

The test items and study guides can be found on the Citizenship Resource Center on the USCIS website. USCIS has also updated the USCIS Policy Manual (PDF, 323.82 KB) accordingly; see Volume 12, Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing.

Processing Update: USCIS is Increasing Premium Processing Fees Beginning Monday, October 19, 2020

Posted on by Susan Lane

USCIS is increasing premium processing fees beginning Monday, October 19, 2020, as included in the Continuing Appropriations Act, 2021 and Other Extensions Act, which was signed into law on September 30, 2020.

For now, it appears that the new premium processing fees will only be available for the following types of cases:

$2,500 if you are filing Form I-129 requesting E-1, E-2, H-1B, H-3, L (including blanket L-1), O, P, Q, or TN nonimmigrant classification.

$1,400 if you are filing Form I-129 requesting H-2B or R nonimmigrant classification.

$2,500 if you are filing Form I-140 requesting EB-1, EB-2, or EB-3 immigrant visa classification.

__________

Additional premium processing information:

The Continuing Appropriations Act, 2021 requires rulemaking to set fees for expanded premium processing services, but it must be consistent with the following:

  1. 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.
  2. 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.
  3. 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.
  4. Form I-765 – fee is no greater than $1,750 and processing time is no greater than 30 days.

Form I-9 Verification During EAD Production Delays Due to COVID-19

Posted on by Susan Lane

USCIS just announced that due to their delay in producing Employment Authorization Documents (Form I-766, EAD), employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document to establish employment authorization.

Even though the Notice of Action states it is not evidence of employment authorization, employees may use it for this purpose until December 1, 2020.

Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a list C document for Form I-9 compliance until December 1, 2020.

THE I-797 NOTICE OF ACTION DESCRIBED ABOVE DOES NOT PROVE EVIDENCE OF IDENTITY OR SERVE AS A LIST A DOCUMENT ESTABLISHING BOTH IDENTITY AND EMPLOYMENT AUTHORIZATION OR A LIST B DOCUMENT ESTABLISHING IDENTITY FOR FORM I-9 PURPOSES.

For Form I-9 completion, employees who present a Form I-797 Notice of Action described above for new employment must also present their employer with an acceptable List B document that establishes identity. The Lists of Acceptable Documents is on Form I-9.  Current employees who require reverification can present this Form I-797 Notice of Action as proof of employment authorization under List C.

By December 1, 2020, employers must reverify employees who presented this Form I-797 Notice of Action as a List C document. These employees will need to present their employers with new evidence of employment authorization from either List A or List C.

H-1B 2021 LOTTERY, PART 2

Posted on by Susan Lane

USCIS did not receive enough H-1B petitions in the first round of the lottery to reach the cap, so it is conducting a 2nd lottery selection this week. Employers will have a 90 day period within which to file the H-1B petitions that are selected this week. Check your USCIS online account to see if your registration account has changed from “submitted” to “selected.”

Check-in with Department of State’s Charlie Oppenheim regarding the August Visa Bulletin

Posted on by Hayden Smith

In the August “check-in,” Charlie describes the movement in each category which is readily apparent from looking at the Visa Bulletin. Charlie’s predictions on future movement of the visa categories are few:

·       F2A is expected to remain current in September and October.

 

·       EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) will continue to remain current through the end of this fiscal year.

·       While there is still potential for forward movement in EB-1 China and EB-1 India in September, any advance movements are unlikely to be as dramatic as in August.

 

·       EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam)  will remain current through this fiscal year. EB-2 China advances approximately nine weeks from November 8, 2015 to January 15, 2016. In contrast, EB-2 India holds at July 8, 2009 in August. It is currently estimated that there is a sufficient amount of worldwide demand to reach or approximate the EB-2 annual limit for FY2020.

Hong Kong Executive Order

Posted on by Hayden Smith

Because of this July 14, 2020 Executive Order, there is great concern whether persons born in Hong Kong will be chargeable to the China visa category. The Visa Office continues to review this issue but there is legal authority that the Order cannot alter the separate chargeability of Hong Kong. Section 103 of the Immigration Act of 1990 granted the separate chargeability treatment to persons born in Hong Kong. Section 103 states that Hong Kong will be treated as a separate foreign state, “and not as a colony or other component or dependent area of another foreign state.”  Stay tuned for updates on this important issue.