On Friday, the Department of State (DOS) released the December Visa bulletin and the only major change was that the India EB3 Dates for Filing Chart retrogressed by a full year to Jan 1, 2014. As a practical matter, this means that if you are India EB3, and have a priority date in 2014, you only have the remainder of this week to file your I-485. Final Action dates moved forward 4 mos. for both India and PRC EB1; others categories from those countries inched ahead; and all other countries and categories remained current. The USCIS later announced that they will accept I-485 filings in Dec. based upon the Dates for Filing chart.
Specifically, the DOJ alleged that Fleetlogix required these non-US citizens to provide specific and unnecessary work and identity documentations because of their citizenship, nationality and/or immigration status as required by the Immigration Reform and Control Act of 1986 (IRCA) by way of completion of a Form I-9, Employment Eligibility Verification. The DOJ’s investigation found that Fleetlogix required specific documentation, such as I-94s (Arrival/Departure Records), Employment Authorization Documents (work permits) and/or Permanent Resident Cards (green cards), even though the individuals had already presented other valid and legally sufficient documents to prove both their identity and work authorization including drivers’ licenses and unrestricted Social Security cards.
Form I-9 requirements come out of the IRCA. IRCA prohibits employers from hiring and employing an individual for employment in the U.S. knowing that the individual is not authorized with respect to such employment. Employers also are prohibited from continuing to employ an individual knowing that he or she is unauthorized for employment. This law also prohibits employers from hiring any individual, including a U.S. citizen, for employment in the U.S. without verifying his or her identity and employment authorization on Form I-9.
The Immigration and Nationality Act (INA)’s anti-discrimination provision prohibits employers from requesting more or different documents than necessary to prove work authorization and identity. Congress by way of the INA, determined that all work-authorized individuals could choose which valid, legally acceptable documents to present to prove their work authorization and identity on the Form I-9. The INA does not permit employers to request specific or additional documentation if the documents presented are genuine looking documents.
Under the terms of the settlement agreement, Fleetlogix will pay fines/civil penalties of $627,000, create a back pay fund for individuals who lost their jobs due to the discrimination, train employees responsible for the completion of the Form I-9 on the requirements of the INA’s anti-discrimination provisions and change their internal I-9 policies and procedures.
At long last, the Department of State (DOS) finally released the November Visa Bulletin to cheers in the homes of immigrants and the offices of immigration attorneys. The dates in the Dates for Filing chart remained the same and the Final Action Date chart had forward movement in several categories. The cheers grew louder when shortly thereafter, the USCIS announced that it would accept I-485 filings in November using the Dates for Filing chart essentially keeping the filing window open at least another month. The limited forward movement for India EB2 (3 weeks) indicates that those considering downgrading to EB3 but, waiting to see the forward movement of EB2 should move forward with I-140 downgrade filings in November.
Late yesterday, the U.S. Chamber of Commerce along with a host of other businesses, trade associations, universities and research labs filed a Federal lawsuit against both the DOL and the DHS challenging the recent regulations which both published last week, significantly impacting the employment of high-skilled immigrants. The lawsuit alleges procedural defects in the promulgation of the regulations and also substantive issues in the content. A summary of the complaint can be found here.
As part of budget legislation passed by Congress on Oct 1st, the USCIS was authorized to increase the premium processing fee to $2500 and they have done so making it effective on all cases filed as of Oct 19th. The $2500 fee applies to all case types that are currently eligible for premium processing. No new case types were authorized for premium processing but, may be in the future. Here is a link to the list of petitions currently eligible for premium processing.
A new DOL rule is expected to be published tomorrow that will significantly alter the prevailing wage rates. An advance copy released by the DOL can be found here. This new rule will apply to all types of immigration cases that utilize prevailing wages including most prominently H-1bs and EB2 and EB3 immigrant petitions. The new rule retains the 4 tier wage system however, it changes the data point that is associated with each level. Currently, the tiers track to the: 17th, 34th, 50th, and 67th percentiles of the data. Under the new system the tiers will track to the: 45th, 62nd, 78th, and 95th percentiles. The DOL states ” The Level II Wage shall be determined by first dividing the difference between Level I and Level IV by three and then adding the quotient to the computed value for Level I” As a practical matter, this means that an H-1b Level 2 wage will fall slightly below the current Level 4 wage and a Level 1 wage position will fall close to the Level 3 wage. As of this morning the on-line OES page has not been changed to reflect the new rule and it is not yet known whether the calculation will need to be done manually or will be reflected on-line. The new rule will go into effect immediately and apply to all new LCA’s filed and all PERM PWD’s that have yet to be adjudicated. PWD’s and LCA’s already issued will not be affected. To put into perspective what this Administration thinks about US employers who hire international talent, the DOL defended its decision to bypass the notice and comment period by stating it was necessary to “prevent the evasion by employers of the new wage requirements” Federal litigation is expected.
Late yesterday, a Federal Judge issued an injunction blocking the filing fee increase that was to go into effect on Oct 2, 2020. The short reason for the injunction is that the DHS officials implementing the new fees do not lawfully hold their positions, having never been confirmed by Congress. This action was brought by several non-profits including the Immigrant Legal Resource Center. Check out their press release on the ruling. In csae you are curious and want to read the entire decision, here is a link.
After a bit of a scare yesterday and an incorrect first web-site update (isn’t someone checking that sort of stuff ?), the USCIS has confirmed that they will honor the Dates for Filing Chart from the October Visa Bulletin for I-485’s starting October 1st. This opens the door for a large number of persons to file I-485’s in October. This also means that some people may want to consider “downgrading” EB2 cases to EB3 cases if eligible and if your priority would be current. The new filing fees are enormous and the amount of information needed to satisfy the new I-944 Public Charge rule is a bit overwhelming but, the finish line is closer than it was a few days ago. If you believe that you are eligible for a 485 filing, please reach out to your HNM attorney.
Finally some good news ! The Department of State (DOS) has released the October Visa Bulletin and all priority dates for persons born in any country other than India and China have become current. This will allow I-485 filings in October. Dates for persons born in India and China also advanced rapidly. In both the final action date chart and the dates for filing chart, India EB3 and China EB3 are ahead of EB2. The DOS explained that the rapid advancement of dates is due to the new Fiscal year Annual limit expected to be 261,500, an all-time high. As of this morning, the USCIS has not yet announced whether they will honor the dates for filing chart or the final action date chart for I-485 filings. We will update this post when that information has been released.
The USCIS has won a victory in Federal Court that allows them to once again require public charge proof in certain immigration filings including the I-129 H and L and the I-485. With many priority dates expected to become current in October, the additional paperwork will be mandated with all filings.