Contact Us Today

News & Resources

USCIS Extends I-9 Verification with EAD Approval Notices Due to Card Production Delays

Posted December 2, 2020Stephanie Wedel - Sr. AssociateArticles

Due to the delay in the printing of Employment Authorization Documents (EAD), USCIS is permitting the use of the I-797, Notice of Action (Approval Notice) for I-9 verification purposes.  USCIS announced on August 19, 2020, that approval notices for Form I-765 with a Notice Date on or after December 1, 2019 through and including August 20, 2020 can be used as a List C #7 document that establishes employment authorization issued by the Department of Homeland Security, even though the notice states it is not evidence of employment authorization.  Employees may present their Form I-797 Approval Notice as a List C document until February 1, 2021, whereas originally the accommodation was only permitted until December 1, 2020.

For I-9 compliance, employees who present the Form I-797 approval notice, must also present an acceptable List B document establishing their identity. A list of acceptable documents can be found on the Form I-9.

By February 1, 2021, employers must re-verify employees who used the Form I-797 Approval Notice for the List C document. These employees must present new evidence of employment authorization from either List A or List C. 

We recommend employers to accept new EADs from employees as soon as they receive them from USCIS prior to February 1, 2021 to ensure I-9 compliance.  It is the employee’s choice whether to present the new EAD card or a different document from either List A or List C.

If you have any questions or would like to organize an I-9 audit to ensure your company’s compliance, please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com.

Read More

Federal Court Stops New H-1B and Prevailing Wage Rules

Posted December 1, 2020Stephanie Wedel - Sr. AssociateArticles, Green Card, H-1B

On December 1st, the U.S. District Court of the Northern District of California issued a judgement setting aside the H-1B and Prevailing Wage rules that were issued in October. The District Court found that the Administration had violated the Administrative Procedure Act by not demonstrating that there was good cause to issue the regulations without following the normally required notice and comment requirements. Due to this violation, the regulations have been overturned.

What does this mean?

H-1B Rule

The H-1B rule was expected to go into effect December 7th.  With this District Court decision, this rule will no longer be taking effect next week.  This rule would have had a substantial impact on IT consulting companies, as off-site H-1B approvals would have been limited to a single year of validity. With the judgment, H-1B regulations and requirements will remain the same, without change.

Prevailing Wage Rule

As the District Court found that there was no reason to delay the issuance of the summary judgment, we expect the prevailing wage data to return to the levels that were in place prior to October 7 relatively quickly.

Skill Level

Previous Percentile

New Percentile on Oct. 7th

Level 1 (entry level)

17

45

Level 2 (qualified)

34

62

Level 3 (experienced)

50

78

Level 4 (fully competent)

67

95

With the return to the previous wage guidelines, employers will have more reliable wage data available from DOL. Under the new rules the DOL presented data in many occupations having a default wage level of $208,000, as well as unreasonable increases in the required prevailing wages.

Labor Condition Applications (LCA) filed prior to the summary junction will continue to be valid, and pending prevailing wage determinations should now be issued with the pre-October 7 wages.  At this time, it is unclear whether DOL will reissue prevailing wage determinations that were created between October 8 and December 1.

What could happen next?

The Administration will be sure to appeal this decision to the 9th Circuit. An appellate court could temporarily pause the implementation of this decision or even overturn the decision.

Meltzer Hellrung will continue to monitor this matter and provide updates as available.  Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

Read More

Update on PERM Processing Times and December Visa Bulletin

Posted November 23, 2020Kristen Kellar - Sr. Paralegal - Team LeadVisa Bulletin

PERM

The Department of Labor reports that PERM processing times are approximately five to six months. Cases that are currently being adjudicated have a Priority Date of May 2020.

Cases that are under Audit Review have a longer processing time of over 300 days. Cases currently being adjudicated in Audit Review have a Priority Date of December 2019.

You can check for updates to the current processing times on the Department of Labor website by clicking here.

 

December Visa Bulletin

The updated Visa Bulletin for December 2020 has been released. The new bulletin sees various slight advancements in the Final Action dates for employment-based cases. Dates for Filing employment-based cases remain mostly unchanged, with the notable exception of India EB3 retrogressing. See the full bulletin here.

Individuals seeking to file applications for adjustment of status with USCIS may use the “Dates for Filing Applications” for determining when they can file such applications.

 

Final Action Changes

All Chargeability (all countries except those otherwise listed):

  • All employment-based preferences are current

China:

  • EB1 advance to 01APR19
  • EB2 advance to 01MAY16
  • EB3 advance to 01NOVT17

EL Salvador, Guatemala, and Honduras:

  • EB1, EB2, and EB3 and other workers are current

India:

  • EB1 advance to 01APR19
  • EB2 advance to 01OCT09
  • EB3 and other workers advance to 15MAR10

Mexico, Philippines, and Vietnam:

  • EB1, EB2, and EB3 and other workers are current

 

Dates for Filing Changes:

All Chargeability (all countries except those otherwise listed):

  • All employment-based preferences are current

China:

  • EB1 advance to 01NOV20
  • EB2 remains at 01OCT16
  • EB3 remains at 01JUN18

EL Salvador, Guatemala, and Honduras:

  • EB1, EB2, and EB3 and other workers are current

India:

  • EB1 advance to 01NOV20
  • EB2 remains at 15MAY11
  • EB3 and other workers retrogress to 01JAN14

Mexico and Philippines:

  • EB1, EB2, and EB3 and other workers are current


Each month Meltzer Hellrung will reach out to clients who are eligible to apply for adjustment of status. If you have any questions about eligibility please reach out to your designated Meltzer Hellrung attorney.

 

Read More

DHS Extends Form I-9 Requirement Flexibility

Posted November 19, 2020Stephanie Wedel - Sr. AssociateArticles
U.S. Immigration and Customs Enforcement (ICE) again announced the extension of flexibility surrounding Form I-9 compliance rules that were established earlier this year due to COVID-19. ICE has extended this policy for through December 31, 2020. This provision only applies to employers and workplaces that are operating exclusively remotely. This provision does not apply where there is an in-office presence. Companies with employees working remotely due to the pandemic do not need to review the documents with the employee physically present, but instead must review the documents remotely within three days of the employees start date. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. ICE also explained that as of July 19th, no additional extensions will be given to employers who had been served Notices of Inspection (NOIs) by ICE during March 2020. E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

Read More

USCIS Clarifies Age Determination & “Sought to Acquire” Under CSPA for Child Beneficiaries

Posted November 14, 2020Cheryl Kilborn - Sr. AssociateGreen Card



On November 13, 2020, the United States Citizenship and Immigration Services (USCIS), updated its Policy Manual to provide clarification on how how it calculates a child's age under the Child Status Protection Act (CSPA). USCIS also provided further clarification on the "sought to acquire" requirement under CSPA in light of the ability of a child to submit a green card application under either the Final Action Dates or Dates for Filing charts.

Background

A “child” beneficiary under the INA is a person who is unmarried and under 21 years of age. Because child beneficiaries are often adversely affected by administrative delays in the process of adjudicating family and employment-based petitions, Congress enacted the CSPA to provide limited age-out protections for children who have turned 21 years old and who would have otherwise become ineligible to receive a green card under the definition of “child.”

Clarifications

AGE DETERMINATION

Calculation: The CSPA provides a formula for calculating a child’s “adjusted age” for purposes of continued green card eligibility as a “child” even after turning 21 years old. For family and employment-based applicants, a child’s “adjusted age” under the CSPA is calculated by subtracting the number of days the underlying immigrant petition (e.g. I-130, I-140) was pending (pending time) from the child’s age on the date an immigrant visa becomes available (age at time of visa availability).

  • USCIS clarified that if there are multiple approved immigrant petitions (e.g. I-130, I-140), a child’s “adjusted age” is calculated using the petition underlying the green card application; noting that the priority date from the earlier petition could still be retained.

Pending Time: For family and employment-based applicants, “pending time” is the number of days between the date the petition is received and receipted by USCIS and the approval date (not priority date).

  • USCIS clarified that “pending time” includes administrative review, such as motions and appeals, but does not include consular returns.

Age at Time of Visa Availability: For family and employment-based applicants, the date the visa is considered available is the later of either the date of petition approval, or the first day of the month of the DOS Visa Bulletin that indicates availability for the preference category and priority date in the Final Action Dates chart.

  • USCIS clarified that because it uses the Final Action Dates chart to determine the child’s “age at the time of visa availability” a child that applies for a green card using the Dates for Filing chart could still age-out if the child’s “adjusted age” under the CSPA is 21 or older at the time of visa availability under the Final Action Dates chart.

Visa Retrogression: Where a child files a green card application based on the Final Action Dates chart, and his or her “adjusted age” under the CSPA at the time of filing was under 21, the child’s age is locked in through final adjudication of the application, regardless of subsequent retrogression.

  • USCIS clarified that where a child files a green card application based on the Dates for Filing chart, the child’s age is not immediately locked in at the time of filing; it would be locked in when a visa becomes available under the Final Action Dates chart. USCIS also clarified that the child’s green card application would be denied if the child’s “adjusted age” was 21 or older when a visa becomes available under the Final Action Dates chart.

SOUGHT TO ACQUIRE

Sought to Acquire Requirement: In order to benefit from the CSPA “adjusted age” calculation, family and employment-based child applicants must “seek to acquire” a green card within 1 year of visa availability (Final Action Date). The date the child “seeks to acquire” for purposes of the one-year filing deadline can be satisfied by filing Form I-485, submitting Form DS-260, paying the immigrant visa fee, paying the Form I-864 review fee, or being the beneficiary of a properly filed Form I-824.

  • USCIS clarified that if the child applies for a green card under the Dates for Filing chart (prior to the date of visa availability according to the Final Action Dates chart), the child would meet the “sought to acquire” requirement; noting that child applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their “adjusted age” based on the Final Action Dates chart is 21 or older.
  • USCIS also clarified that in order to benefit from CSPA, a child applicant has 1 year to meet the “sought to acquire” requirement when a visa becomes available according the Final Action Dates chart; explaining that any retrogression in the Dates for Filing chart is not considered retrogression for CSPA purposes.

Next Steps

The October and November 2020 Visa Bulletins saw substantial forward movement for all categories of employment-based immigrants, particularly those in the EB-3 category. This provided the opportunity for many Indian nationals with previously established EB-2 priority dates to submit green card applications in the EB-3 category for themselves and their family members. It is important to understand that the filing of a green card for a child based on the October and November 2020 Visa Bulletins' Dates for Filing chart does not necessarily protect a child from aging-out if the child will soon be turning 21 years of age.

Because initial I-140 petitions are often filed with premium processing, the opportunity to file a second I-140 petition in the EB-3 category is welcome news as it allows for the possibility of a longer pending petition for purposes of the CSPA “adjusted age” calculation. USCIS clarified in the Policy Memorandum that the second I-140 would serve as the basis for calculating "pending time" because it's the basis of the green card application.

Meltzer Hellrung monitors the Final Action Dates chart each month and runs reports to assess whether there are child applicants approaching an age-out issue. If you have any questions or concerns about the impact of CSPA, please contact your designated Meltzer Hellrung attorney or send an email to consultation@meltzerhellrung.com.

Read More