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Archive by Year: 2020

Update on PERM Processing Times and January Visa Bulletin

Posted December 29, 2020Olga Krapivner - ParalegalVisa Bulletin

January 2021

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 June 2020.

Cases that are under Audit Review have a longer processing time of nearly one year. Cases currently being adjudicated in Audit Review have a Priority Date of January 2020.

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

 

January Visa Bulletin

The updated Visa Bulletin for January 2021 has been released. The new bulletin sees various slight advancements in the Final Action dates for employment-based cases but remains the same for Dates of Filing employment-based cases.  See the full bulletin here.

Individuals seeking to file applications for adjustment of status with USCIS may use the “Final Action” dates 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 01SEP19
  • EB2 advance to 01JUN16
  • EB3 advance to 15DEC17

EL Salvador, Guatemala, and Honduras:

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

India:

  • EB1 advance to 01SEP19
  • EB2 advance to 08OCT09
  • EB3 and other workers advance to 22MAR10

Mexico, Philippines, and Vietnam:

  • 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.

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DHS Extends Form I-9 Requirement Flexibility through January 2021

Posted December 28, 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 January 31, 2021.

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.

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.

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Avoiding National Origin and Citizenship Status Discrimination in the Hiring Process

Posted December 23, 2020Articles

The Immigration and Nationality Act provides two distinct protections against discrimination:

  • Discrimination based on national origin
  • Discrimination based on citizenship status.

Violations of these protections can open an employer up to liability, with consequences ranging from civil penalties, attorney’s fees, compensatory damages, punitive damages, and other costs. The most expensive liability can be in public perception, as these violations are often well publicized.

Discrimination Based on National Origin

This protection applies to all work-authorized individuals and prohibits discrimination based on country of origin, accent, appearance, and similar features.  Examples of discrimination based on national origin include refusing to hire an applicant because of their accent or requiring specific proof of work authorization from Asians and Latino employees, but not white employees.

Discrimination Based on Citizenship Status

This protection only applies to U.S. Citizens and Nationals, Refugees, Asylees, and Recent Lawful Permanent Residents. Examples of discrimination based on citizenship status include restricting certain positions to U.S. Citizens only and effusing to hire an individual because they are a permanent resident or refugee.

Avoiding Discrimination During the Hiring Process

Paper/Application Stage

Given guidance from the Department of Justice, Meltzer Hellrung recommends asking only 2 questions of all applicants:

  • Are you authorized to work lawfully in the United States?
  • Do you now, or will you in the future, require sponsorship to work in the United States?

Employers are not required nor obligated to sponsor an applicant or employee for work authorization or permanent residency Employers are permitted to reject candidates based on a ”no” response to the first question and/or a “yes” response to the second question.  Employers who ask additional questions subject themselves to liability but are not required to ask these questions at all.

During the Interview

It is important that interviewers ask the same questions of each applicant.

Additional information about avoiding discrimination in the hiring process can be found here, including examples of the acceptable follow up questions in response to the questions above. 

Candidates will often provide information that is needed regarding their visa and immigration status when prompted. Employers can only request proof of authorization only after extending an offer. Up until the offer is made, employers must take the applicants at their words. Please note that employers cannot demand specific documents for the I-9 completion. 

To answer any questions or have your hiring materials reviewed, please contact your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com.

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Additional COVID Relief Package Passed Through Congress

Posted December 23, 2020Stephanie Wedel - Sr. AssociateArticles

On December 21st, Congress passed a spending package to fund federal agencies through September 30, 2021 as well provide additional COVID relief.    

This spending package extends the following immigration programs:

  • EB-5 Regional Center Program extended only until June 30, 2021.
  • E-Verify program extended until September 30, 2021.
  • Special Immigrant Religious Workers Program extended until September 30, 2021.
  • Conrad-30 extended until September 30, 2021.
  • Liberian Refugee Immigration Fairness program filing deadline extended until December 20, 2021.

The COVID relief package also includes authorization for stimulus checks to be issued to families where at least one family member files taxes with social security number.  This authorization will also provide retroactive relief to families who did not receive payment under the CARES Act passed earlier this year.

The receipt of the stimulus payment does not count as a public benefit for the public charge requirements because  the public charge restrictions explicitly exclude tax credits and tax deductions.  As these stimulus payments are structured as a tax credit, they are not considered to be a public benefit for immigration purposes, but rather a tax credit exempt from consideration in the public charge rule.

Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com if you have any questions.

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H-1B Win for Computer Programmer Occupation

Posted December 18, 2020Cheryl Kilborn - Sr. AssociateH-1B

A federal court of appeals recently reversed and remanded a California federal court ruling that upheld USCIS’s denial of an H-1B visa for a computer programmer.

Background

One of the four alternative regulatory criteria to establish that an occupation qualifies for H-1B classification is to demonstrate that a bachelor’s degree (or its equivalent) is “normally” the minimum requirement. USCIS looks to the Occupational Outlook Handbook (OOH), a source it deems authoritative, when determining whether an occupation “normally” requires a bachelor’s degree.

The current version of the OOH states the following regarding the normal educational requirements for a computer programmer:

“Most computer programmers have a bachelor’s degree; however, some employers hire workers with an associate’s degree.”

USCIS routinely relies on the above language to deny H-1B visa requests for computer programmers. USCIS asserts that because a bachelor’s degree is not required 100 percent of the time, that it is therefore not the “normal” requirement. USCIS’s position on this was codified in a March 2017 Policy Memorandum in which it asserted that because an associate’s degree is acceptable, per the OOH, an employer cannot rely on the OOH to demonstrate that its particular computer programmer position meets the criteria for H-1B classification.

Notably, The OOH also states the following regarding the normal educational requirements for a computer programmer:

Typical Entry-Level Education

Bachelor's degree

While USCIS has routinely denied H-1B requests for computer programmers upon finding that “most” is not synonymous with “normally” the court in this case addressed USCIS’s failure to consider the OOH entry that a bachelor’s degree is the “typical” requirement for the computer programmer occupation.

Court’s Analysis

  • USCIS argued that because some employers hire computer programmers with associate’s degrees, per the OOH, a bachelor’s degree is not the “normal” requirement (USCIS failed to address the OOH entry that a bachelor’s degree is the “typical” requirement). The court considered the OOH entry and found the words “normally” and “typically” to be synonymous.
  • USCIS argued that because some employers hire computer programmers with associate’s degrees, per the OOH, that most computer programmers have either a bachelor’s or associate’s degree. The court disagreed finding that USCIS’s logical fallacy misrepresented the OOH.
  • The court also found that USCIS’s failure to consider key evidence within the OOH itself that explained that a bachelor’s degree is the “typical” requirement was “yet another (and independent) reason” why the lower court’s decision was arbitrary and capricious.

What this means for H-1B employers

  • We expect USCIS’s March 2017 Policy Memorandum to be rescinded, in which USCIS asserts that an employer cannot rely on the OOH to demonstrate that a computer programmer is an occupation that “normally” requires a bachelor’s degree.
  • The computer programmer occupation is not the only one for which the OOH states that in some instances employers will accept something less than a bachelor’s degree. The reasoning in this case can be used for other occupations as well.
  • Employers that have the option of suing USCIS in the 9th circuit can benefit from this binding precedent. This case, while not controlling outside of the 9th circuit, is certainly persuasive for other jurisdictions.

Please reach out to your designated Meltzer Hellrung attorney, or consultation@meltzerhellrung.com with any questions. 

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