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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.

 

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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.

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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.

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Adjustment of Status Receipts and Processing Times

Posted November 6, 2020Amelia Moore - ParalegalGreen Card

Given the progression of priority dates in the October Visa Bulletin, there was a significant influx in the number of Adjustment of Status cases filed in the last month. For the many of those who filed an Adjustment of Status application, here is what you can expect regarding the progression and processing of your case.

Several months after filing with USCIS: A receipt notice will be issued in relation to filing. Once this is received by Meltzer Hellrung, we will provide you and your company with a copy of this receipt notice. You should also receive a copy at your home address. Due to unprecedented case volume and COVID-related operational challenges, receipts are taking several months to be issued.

Several months after filing with USCIS: USCIS will schedule a biometric appointment. An appointment will be scheduled for each individual applicant, during which their photo and fingerprints will be taken.  A copy of this appointment notice will be sent to you at your home address as well as to Meltzer Hellrung. Due to unprecedented case volume and COVID-related operational challenges, biometrics appointments are taking several months to be scheduled.

3-6 months of filing with USCIS: If applications for Employment Authorization Document (EAD) and Advance Parole (AP) were filed, the approvals will be issued. Applicants will be notified of approval by notice sent to Meltzer Hellrung and the applicant.

Several months after biometrics (if priority date is still current): An interview notice will be issued. USCIS requests an interview with every applicant before approving an application. During your interview, you will be asked questions regarding your immigrant petition (I-140) and the biographical information contained in your I-485. Family members are typically scheduled to attend these interviews together. Your Meltzer Hellrung Attorney will schedule a phone call with you to prepare for the interview and answer any questions you may have.

Within 30 days of interview: USCIS issues a green card and a welcome notice to the applicant. The green card is valid for a period of 10 years and can be renewed indefinitely so long as the applicant remains a permanent resident of the United States. A permanent resident is then eligible to apply for citizenship after five years of permanent residency.

Throughout the approval process, Meltzer Hellrung will continue to provide both general updates as well as case specific information as it is received. Please contact your designated Meltzer Hellrung Attorney with any additional questions.

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Holiday Travel Tips for Foreign Nationals

Posted November 4, 2020Articles

The holidays are quickly approaching, and for foreign nationals planning to travel abroad now is a great time to ensure that all immigration documents are in order and to be aware of the current travel restrictions.

COVID-19 Travel Bans and Travelling to Third Countries

The impact of COVID-19 is felt differently in each country, with various restrictions from mandatory quarantine to closed borders. Foreign nationals are encouraged to keep up to date on the continuously evolving restrictions before planning to travel. Additionally, there is an active Presidential Proclamation restricting entry for nonimmigrants who have visited certain countries during the 14-day period preceding their entry or attempted entry to the U.S. As of today, these countries include China, Iran, United Kingdom (England, Scotland, Wales, Northern Ireland), Republic of Ireland, Brazil, and the European Schengen area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Lativa, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City). 

Additionally, when you come back to the United States there are many states with a mandatory 14-day quarantine. This is continuously changing, and we recommend checking the state’s COVID restrictions before flying back into the United States.

Presidential Proclamation Restricting H-1B, H-2B, L-1 and J-1 (and Dependents) from Entering the U.S.

President Trump signed a Presidential Proclamation in June 2020 that restricts the ability of nonimmigrant visa holders in H-1B, H-2B, L-1 and J-1 status from entering the U.S. There are exceptions for this proclamation for individuals who:

  • Are inside the U.S. at the time of the proclamation
  • Have a valid nonimmigrant visa, advance parole or other U.S. travel document as of the date of this proclamation
  • Are lawful permanent residents of the U.S.
  • Are the spouse or child of a a U.S. Citizen
  • Are seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain

A recent court decision also provides exceptions for employees of companies who are members of U.S. Chamber of Commerce, the National Retail Federation, Technet and Intrax.

If you or your employees are any of these statuses and plan to travel, please reach out to your designated Meltzer Hellrung attorney to ensure you will be able to re-enter.

Eligibility for Visas, Delays, and Exceptions

In general, nonimmigrants with an expired visa stamp will need to obtain a new one before returning to the U.S. There is an exception for those with a valid I-94 travelling only to Canada or Mexico for fewer than 30 days, who meet certain criteria, through a process called automatic revalidation. Citizens from Iran, Sudan, or Syria with an expired visa, as well as those who have applied and are waiting for a visa stamp, or had a visa denied, will need to obtain a valid visa stamp regardless of the length of stay in Canada or Mexico.

Those travelling to other countries or who plan to stay in Canada or Mexico for more than 30 days, should plan to obtain a new visa stamp before returning to the U.S. It is possible that it may take months to obtain an appointment due to COVID-19.

It is also important that the visa stamp be valid for the correct visa category. For example, if an individual changed from F-1 to H-1B on October 1 and has not yet received a new visa stamp, that person will need a new H-1B visa stamp to re-enter the country.

Appointments for visa stamping should be made as early as possible as appointments maybe be limited due to local and U.S. holidays and COVID-19. Each U.S. Consulate lists its holiday closures on its website, and estimated visa appointment and processing wait times can be found on the U.S. Department of State’s website. There are many U.S. consulates which are still closed, which has caused a backlog. Due to the backlog, obtaining an appointment for a visa at a consulate is taking many months. There are some consulates that are reopening but it will likely take many months to reschedule cancelled appointments from earlier this year.  When traveling abroad, please plan for additional time for visa stamping appointments.

Dropbox visa stamping remains available, and eligibility has been expanded to individuals whose visas have expired in the last 24 months rather than the last 12.  This expansion is in effect until December 31, 2020.

If you plan to travel to the U.S. consulate in your home country, and you are prohibited from entering the U.S there are emergency appointments available which may allow you to enter the U.S. The requirements for an emergency appointment vary among the consulates. Usually, a business necessity is considered an emergency since a company may lose money by not having an employee enter and work in the U.S. With the global pandemic, even emergency visa appointments are delayed and in some cases difficult to obtain. Please consult a Meltzer Hellrung attorney before leaving the United States to ensure an emergency appointment can be granted.

Foreign nationals who are coming to the U.S. from the list of restricted countries can enter the U.S. if they work in defense, law enforcement, diplomacy, national security, medical field, and medical research related to COVID-19.

Citizens of Canada generally do not need a visa stamp, but there are travelling restrictions to Canada due to COVID-19. The US and Canada have agreed to limit all non-essential travel across borders until November 21st. It is likely to be extended.

 

Pending Cases with USCIS

Those with a currently pending case with USCIS should consult with their or their employer’s immigration attorney to determine any travel risks.

Individuals with pending nonimmigrant cases for change of status or extension of status generally should not travel abroad until the case is adjudicated. Leaving the U.S. while the case is still pending may result in the case being approved for consular processing thus requiring the individual to leave the U.S., obtain a visa stamp, and re-enter in order to “activate” the new approval.

Those with pending adjustment of status cases may need to have a valid advanced parole document to re-enter the U.S. Individuals on dual intent visas such as H-1B, H-4, L-1, and L-2 can return to the U.S. with their valid visa.

 

Passport validity

Passports should be valid for the period of intended stay. If entering with a passport that expires before end date on the I-797 approval notice, U.S. Customs and Border Protection may shorten the new I-94 to match the passport expiration date. Individuals from certain countries must have passports valid for at least six months beyond the period of the intended stay, however, most countries are exempt from this requirement.

Re-entering the United States

When returning to the U.S. on a nonimmigrant status we suggest carrying the following documents:

  • Current passport
  • Current I-797 approval notice
  • Two most recent paychecks or signed employment verification letter confirming current position, wage, etc.

Additionally, individuals should be ready to answer basic questions posed by U.S. customs and immigration officials, such as:

  • What is the name of your employer?
  • What is your job title?
  • Where do you work?
  • How long do you expect to stay in the United States?

Students on M-1 or F-1 status should hand carry the following document:

  • Current passport
  • Student visa
  • Form I-20

Any student that is admitted but receives a Form I-515A, “Notice to Student or Exchange Visitor” from the CBP officer should immediately contact their school’s Designated School Official (“DSO”) for assistance.

Upon returning to the U.S., all foreign nationals should take a moment to obtain their most recent I-94 so they are aware of their status expiration date. Each person should also review their I-94 record for consistency with other immigration records. If there is an inconsistency, please contact us immediately for advice on correcting the mistake.

Our recommendation

Individuals who do not have a valid visa stamps should not plan any international travel during the holidays.

As always, if you or your employees have any questions about travelling during the holidays or at other times during the year, reach out to your designated Meltzer Hellrung attorney.

We wish a happy holiday season to you and your family.

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