The Department of State (DOS) has released the March Visa Bulletin and all categories that were current in February, remained current for March. All categories for both India and China saw forward movement at a greater pace than in previous months with EB1 jumping forward over 6 mos. As expected, the USCIS has chosen not to honor the Dates for Filing Chart but, only accept I-485 filings based upon the Final Action Date chart. This position by the USCIS continues to leave those who’s I-485’s were rejected due to filing errors with no opportunity to re-file after correcting the deficiency.
Last week, the Department of State (DOS) released the February Visa Bulletin and as expected, it remained largely unchanged. India and China EB1 saw several months of forward movement in the Final Action Date Chart but, other categories saw forward movement of only a few days. The USCIS announced that it would not honor the Dates For Filing Chart but, would only honor the Final Action Date Chart for I-485 filings. Given the difficulties they have had in issuing receipts for the I-485 filings they received in October, this is not a surprise. The DOS provided some projections over the coming months and indicated that those categories and countries that are now current are expected to remain current. They also expect EB1 for India and China to become current within the next few months. Finally, they also projected slow forward movement for all other categories and countries. Retrogression remains a major problem.
On this day, when the legal immigration world should be celebrating an incoming President that, at the very least, will not be anti legal immigration, we are still reading and trying to understand the implications of the new rules announced in the past week. Here is a link to a great summary from our friend Stuart Anderson. Many of the new rules target healthcare and IT occupations and employers. We will provide updates as actions are taken by President Biden.
The USCIS has issued an update letting its stakeholders know that we can expect delays in the issuance of receipt notices. (A more obvious statement could not be made as we are waiting on receipts from filings made 3+ months ago) Relative to I-485 and I-765 receipts, the USCIS stated that we can expect “significant delays”. The communication did not give any estimate as to when they will once again be able to provide receipts in a timely manner but, did indicate they were working extra hours to handle all of the filings. Our office and the immigration bar at large has experienced not only delays by the lockbox but, also a significant number of inaccurate rejections. The lockbox facilities are not fully staffed by trained USCIS employees which may be part of the problem.
Update as of 1-30-2021 Per information reported by the USCIS to AILA
Dallas Lockbox: 415,000 applications in the backlog post October 29, 2020 that have not even been opened yet.
Phoenix Lockbox: 100,000 applications in the backlog that have not even been opened yet.
Chicago Lockbox: Roughly current and cases are being receipted within a week.
Please note that the destinations for Employment Based I-485s have recently changed and many cases are now being sent to the Chicago Lockbox, which previously only processed family-based petitions.
Earlier this week, the Department of State (DOS) released the January Visa Bulletin. All categories for all countries other than India and China remained current in the Final Action Date chart. India saw a jump of 5 mos. in the EB1 category but, merely a week in the EB2 and EB3 categories. China saw the same 5 mo. jump in the EB1 category but, only modest forward movement in the EB2 and EB3 categories. The USCIS announced that for purposes of filing I-485 Adjustment of Status Applications in Jan 2021, they will be honoring the Final Action Date chart and NOT the Date for Filing chart. This announcement brings to an end the expanded filing window and it is expected that the Final Action Date chart will be used for the remainder of the fiscal year, although that has not been officially announced. For some of you, this means that you only have a few days left to file or it may be next October or even longer before you have the opportunity to file a 485 again.
A third Federal Court has ruled against the DOL and the Trump Administration for changes made to the DOL’s prevailing wage system. The lead plaintiff was Purdue University but, they were joined by other universities, AILA, and others. This Court even went a step further than the prior courts and ordered the DOL to re-adjudicate all PWD’s issued while the unlawful wages were in use. Forbes published a nice summary of the case. Kudos to all of those who litigated against these unlawful rules designed to gain political points for the election without regard to the harm caused to US businesses and the economy.
Recently, the DOJ has filed a lawsuit against Facebook over its PERM program. At its core, the complaint alleges that Facebook did not advertise as effectively or recruit as aggressively for its positions associated with PERM applications as it did for other openings. An excerpt from the press release is telling: “In its investigation, the department determined that Facebook’s ineffective recruitment methods dissuaded U.S. workers from applying to its PERM positions. The department concluded that, during the relevant period, Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM positions, while comparable positions at Facebook that were advertised on its careers website during a similar time period typically attracted 100 or more applicants each.” It is interesting that the DOJ has not alleged that Facebook failed to follow the DOL guidelines relative to recruitment activities but, is claiming that the recruitment activities expressly permitted by the DOL are ineffective. In this respect, I think we would all agree; the notion that a Sunday newspaper classified section is an effective place to recruit for professional jobs in 2020 is ridiculous. How, the DOJ can make the leap that the failure of the DOL to update its regulations would be the fault of the employer fastidiously following those regs is a stretch at best and an abuse of power at worse. Updating the PERM program to use data and modern recruitment techniques is the answer, not this lawsuit.
On Friday, the DOL, in compliance with a Federal Court order reverted back to the prior wage methodology which has been in effect for decades. When you check the FLCDataCenter now, the “old” wages will appear.
The DOL also announced that it will accept a request for reconsideration of any PWD issued using the “now struck down wages” regardless of when issued, if filed prior to Jan 4, 2021. The DOL did not indicate how long it would take them to re-issue new PWD’s or whether they would make those a priority but, typically a request for reconsideration takes at least 90 days.
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.