COVID-19 Updates from the Department of State

COVID-19 Updates from the Department of State

In March 2020, the Department of State suspended routine visa services at consular posts worldwide due to the COVID-19 pandemic. Since July 2020, U.S. Embassies and Consulates have begun a phased resumption of routine visa services. U.S. citizen services are the top priority, but routine services will occur on a post-by-post basis. The Department of State confirms that “U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March and will continue to do so as they are able. As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services.”

However, DOS also notes that they “are unable to provide a specific date for when each mission will resume specific visa services, or when each mission will return to processing at pre-pandemic workload levels.  See each U.S. Embassy or Consulate’s website for information regarding operating status and which services it is currently offering.”

Due to the ongoing uncertainties, the DOS has allowed the following flexibility:

  • Individuals may be able to renew their visas without an interview if they are reapplying for the same visa class that they previously held. Typically, interviews can be waived for individuals who are renewing unexpired visas or visas that expired less than one year ago. A recent Department of State announcement expanded that time frame to visas that have expired within a 24-month period, effective until March 31, 2020.
  • The Machine Readable Visa (MRV) fee is typically valid within one year of the date of payment and may be used to schedule a visa appointment in the country where it was purchased. However, due to the ongoing pandemic, appointments have been extremely limited. The Department has extended the validity of all MRV fees until September 30, 2022. 

Frequently Asked Questions

Q.  Which additional visa services are embassies/consulates beginning to provide?

  • All of our missions are continuing to provide emergency and mission-critical visa services.  As post-specific conditions permit, and after meeting demand for services to U.S. citizens, our missions will phase in processing some routine immigrant and nonimmigrant visa cases.  Posts that process immigrant visa applications will prioritize Immediate Relative family members of U.S. citizens including intercountry adoptions (consistent with Presidential Proclamation 10014) fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications.  Posts processing non-immigrant visa applications will continue to prioritize travelers with urgent travel needs, foreign diplomats, and certain mission critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students (F-1, M-1, and certain J-1) and temporary employment visas (consistent with Presidential Proclamation 10052).  We expect the volume and type of visa cases each post will process to depend on local circumstances.  An embassy or consulate will resume adjudicating all routine nonimmigrant and immigrant visa cases only when adequate resources are available, and it is safe to do so.

Q.  What criteria are missions using to determine when to resume routine services?

  • We are closely monitoring local conditions in each country where we have a U.S. presence. Local conditions that may affect when we can begin providing various public services include medical infrastructure, COVID-19 cases, emergency response capabilities, and restrictions on leaving home.

Q.  What steps are being taken to protect customers from the spread of COVID-19?

  • The health and safety of our workforce and customers will remain paramount.  Our embassies and consulates are implementing safeguards to keep staff and customers safe, including implementing physical distancing in our waiting rooms, scheduling fewer interviews at a time, frequent disinfection of high touch areas, and following local health and safety regulations.

Q.  Do the various Presidential Proclamations/travel restrictions still apply, or are those lifting with the resumption of visa services?

  • The five geographical COVID-19 Proclamations (P.P. 9984, 9992, 9993, 9996, 10041) and the two COVID-19 Labor Market Proclamations suspending the entry of certain aliens (P.P. 10014 and 10052) remain in effect.

Q: Is my situation an emergency? I need to go the United States immediately for X.

  • Applicants can find instructions on how to request an emergency visa appointment at the Embassy or Consulate’s website.

Q.  What about my application fee that expired while routine services were suspended? 

  • The Machine Readable Visa (MRV) fee is valid within one year of the date of payment and may be used to schedule a visa appointment in the country where it was purchased.  However, the Department understands that as a result of the pandemic, many visa applicants have paid the visa application processing fee and are still waiting to schedule a visa appointment.  We are working diligently to restore all routine visa operations as quickly and safely as possible.  In the meantime, the Department extended the validity of MRV fees until September 30, 2022, to allow all applicants who were unable to schedule a visa appointment due to  the suspension of routine consular operations an opportunity to schedule and/or attend a visa appointment with the fee they already paid.

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USCIS Provides Update on Lockbox Delays

USCIS has been experiencing severe delays in issuing receipt notices, typically created and mailed to the applicant, petitioner, or beneficiary within 30 days. The agency provided the below update on January 8, 2021.

Due to the COVID-19 pandemic and other factors, USCIS is experiencing delays in issuing receipt notices for some applications and petitions filed at a USCIS lockbox facility. The information below explains the current state of our lockbox operations and the issues affecting receipt notices.

Current Situation

As a result of COVID-19 restrictions, an increase in filings, current postal service volume and other external factors, you may experience a delay of four to six weeks in receiving your receipt notice after properly filing an application or petition with a USCIS lockbox. These delays will not affect the receipt date which is determined pursuant to 8 C.F.R. 103.2(a)(7). Delays may vary among form types and lockbox locations. In some cases, you may experience significant delays if you filed a non-family based Form I-485, Application to Register Permanent Residence or Adjust Status, or Form I-765, Application for Employment Authorization, based on eligibility categories described in 8 C.F.R. 274a.12(c)(3), relating to F-1 students.

The health and safety of our workforce remains a top priority. Across all USCIS offices, including lockbox facilities, the agency has taken necessary measures such as increased social distancing and frequent cleaning in accordance with the Centers for Disease Control guidance to mitigate the spread of COVID-19. Some lockbox operations in locations that have been severely impacted by COVID-19 must adhere to stricter local guidelines.

What USCIS Is Doing

The USCIS lockbox workforce¹ is working extra hours and redistributing its workload in order to minimize delays. Once we open and process your application, we print and mail the receipt notice. We do not anticipate any receipting delays that would result in a payment that is past its validity date.

What You Can Do

If you have already filed your application and are waiting for your receipt notice, we appreciate your patience. We are working as quickly as possible to complete the intake of all filings.

You can take steps to decrease the time it takes us to process and send your receipt notice or find out the status of your case:

Finally, visit our Form Filing Tips webpage for more information on filing with USCIS and our online tools for help in managing your application.

¹The USCIS lockbox facilities located in Chicago, Illinois; Phoenix, Arizona; and Lewisville, Texas, are operated by a Department of Treasury designated financial agent, plus federal staff.

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USCIS Rushes to Modify H-1B Cap Registration & Selection Process Before March

[UPDATE: DELAYED UNTIL DECEMBER 31, 2021]

USCIS Rushes to Modify H-1B Cap Registration & Selection Process Before March

USCIS announced that a rule first proposed in November that modified the H-1B cap selection process will be effective prior to this year’s H-1B registration period. Despite comments submitted through December of 2020, DHS moved forward with publishing the final rule without modification. The new policy will change the selection from a random process to one based on wage levels. In the announcement, USCIS stated that the new modifications will “incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive.”

In 2020, the H-1B registration window opened on March 1 and stayed open through March 20, 2020. While no timeline has been announced for 2021, the new rule leaves employers and employees only weeks to adjust to the new selection process if it were implemented, with an effective date of March 8, 2021. There has been no USCIS guidance released on how the registration process will be operationally different than in 2020. President-Elect Biden has indicated he will sign a memo preventing “midnight” rules from taking effect immediately, so it is likely the registration rule will not be implemented for this year’s H-1B cap selection process.

Previous DOL and DHS rules attempting to increase prevailing wages were struck down by the courts last year.

Key Provisions of the Proposed Rule

While the H-1B cap registration system has historically been a random selection process, the rule would shift to a ranking of registrations based on the highest OES wage level that the proffered wage equaled or exceeded for the relevant SOC code in the area of intended employment. The top-ranked registrations would begin at OES wage level IV and proceed in descending order.

Wage Considerations

  • If the proffered wage falls below OES wage level I because the wage is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration as OES level I.
  • After the 65,000 “regular cap” selections are made, the same process would be utilized to meet the advanced-degree exemption.
  • If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.
  • If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
  • Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.
  • The electronic registration form (and the H-1B petition) will be amended to require provision of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.

Registration & Adjudication Updates

  • The proposed rule requires that a valid registration must represent a legitimate job offer.
  • USCIS may deny the petition if it is determined that the statements on the registration or petition were inaccurate, fraudulent, or misrepresented a material fact.
  • A petition also may be denied if it is not based on a valid registration submitted by the petitioner (or its designated representative), or a successor in interest, for the beneficiary named in the petition.
  • USCIS may deny or revoke approval of a subsequent new or amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.
  • USCIS will not deny an amended or new petition solely on the basis of a different proffered wage if that wage does not correspond to a lower OES wage level than the wage level on which the registration was based.

We will be closely monitoring the challenges to this rule in order to best advise on preparation for this year’s H-1B cap selection process.

Don’t forget to register for Challa Law Group’s webinar series, where Managing Attorney explores strategies for navigating the new immigration challenges and answers your questions live. Join us every Wednesday at 12 PM EST.

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E-Verify Unavailable Due to Technical Glitches: Temporary Policies

January 5, 2021

E-Verify distributed notices stating:

E-Verify is currently experiencing technical difficulties and remains unavailable. The technical team is currently attempting to restore the system. We’ll keep you informed on the progress.

After several hours of inoperability, the below update was provided.

E-Verify is temporarily not available due to technical difficulties.  While E-Verify is unavailable, employers will not be able to:  

  •  Access their E-Verify accounts 
  • Create E-Verify cases 
  • View or take action on any case 
  • Add, delete or edit any user account 
  • Reset passwords 
  • Edit company information  
  • Terminate accounts 
  • Run reports or view any information about an account

New Temporary Policies 

We understand that E-Verify’s temporary unavailability may impact employer operations. We have implemented the following policies to minimize the burden on both employers and employees:  

  • The “three-day rule” is suspended for E-Verify cases affected by the unavailability of E-Verify. We will provide additional guidance regarding this deadline once the E-Verify system is fully operational. This does not affect Form I-9, Employment Eligibility Verification, requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements. 
  • The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days employees have to begin resolving their TNCs. We will provide additional guidance regarding these deadlines once E-Verify is fully operational. 
  • For federal contractors covered by the E-Verify federal contractor rule, please contact your contracting officer, as necessary, to inquire about extending federal contractor deadlines
  • Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify. 
  • Employers should also refer to ICE guidance on COVID-19 and ICE news releases for the latest information on Form I-9, Employment Verification policies.

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Naturalization Test Doubles Number of Required Civics Questions

Naturalization Test Doubles Number of Required Civics Questions, Leaves Passing Percentage at 60%

USCIS announced on November 13, 2020 that a revised civics test required for immigrants seeking U.S. citizenship will be implemented on December 1, 2020. The revised naturalization civics test has been in progress since 2018, “relying on input from experts in the field of adult education to ensure that this process is fair and transparent,” said USCIS Deputy Director for Policy Joseph Edlow.

The new test includes additional questions, increasing the test bank from 100 to 128 questions that test the applicant’s understanding of U.S. history and civics. In the announcement USCIS stated that the variety of topics “provide the applicant with more opportunities to learn about the United States as part of the test preparation process.” The passing score will remain at 60%, but the number of questions will increase from 10 to 20 questions. Candidates must answer 12 questions correctly to pass.

Highlights

  • Increases the general bank of civics test questions from 100 to 128, the number of test questions for the exam to 20 (from 10), and accordingly, the number of correct answers needed to pass the civics test to 12 (from 6). The test score required to pass (60 percent correct) will not change.
  • Confirms that USCIS will continue to administer 10 test questions (with required 6 correct answers) to applicants who qualify for special consideration because they are age 65 or older
    and have been lawful permanent residents for at least 20 years.
  • Provides that officers will ask all 20 test items (or 10 to special consideration applicants), even if the applicant achieves a passing score.

The USCIS website has been updated to reflect the additional test items and study guides.

Background

For many immigrants, U.S. citizenship is the ultimate accomplishment. Naturalization can take decades if you first entered the country as a student or foreign worker. As the wait times for green cards have steadily increased (to over ten years for some categories), citizenship remains elusive for many. In order to become a U.S. citizen after immigrating, an individual must be a green card holder for a minimum of three to five years (depending on how the green card was obtained), and then they must pass civics and English tests to demonstrate their commitment and loyalty to the United States.

In 2019, former USCIS Director Francis Cissna issued a memorandum titled “Revision of the Naturalization Civics Test” to associate directors and program office chiefs to notify them of upcoming changes to the civics test. The memo also stated that the test will be revised every ten years going forward, formalizing a process that has been done intermittently in the past. The last major revision happened in 2009 when USCIS implemented standardized test forms for the English and civics test requirements.

Naturalization Applicants

Green card holders applying for citizenship prior to December 1, 2020 will be given the current version of the test. All applicants after that date will be required to take the new test.

In the announcement, USCIS stated the agency “will maintain the current guidelines for statutorily established special considerations for applicants who are 65 years old or older and have at least 20 years of lawful permanent resident status. These applicants will be asked 10 questions and must answer a minimum of six questions correctly in order to pass.”

Additional Resources

Contact Us

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Blank Space Policy by USCIS Leads to Rejections

Blank Space Policy by USCIS Leads to Rejections

USCIS recently signaled a plan to expand the “no blank space” policy to multiple applications and petitions. Last year, the agency deviated from the established policy without notice, rejecting forms with questions left blank, even if the question did not apply. It seems that the agency began enforcing specific terminology to indicate whether a question was inapplicable.

An AILA policy brief pointed to the capricious examples: “These rejections are particularly egregious as the majority of rejected applications left spaces blank for information that was not relevant to an individual’s eligibility, such as leaving blank the space asking for an individual’s name in a native alphabet when the native alphabet was the same as English.”

USCIS has proposed updating form instructions to include language to reinforce the “no blank space” policy. USCIS first rejected Forms I-589 in late 2019 (asylum) and I-918 (U status) in spring of 2020. The policy shift was not announced to the public before taking effect, leading to increases in rejected applications for technical, non-substantive reasons. AILA examined I-589 rejections and found the most common spaces left blank (see the chart below).

AILA reported that even if form instructions dictated otherwise, forms were rejected for using terminology other than N/A.

There are also numerous ambiguous uses of the words “if any” or “if applicable” after many questions. The use of these words makes it seem that, if the question does not apply to the applicant, then it is acceptable for the applicant to skip the question. Despite the inherent ambiguity of the forms, failure to include N/A, when appropriate, resulted in rejection of the application.

Even where there is no ambiguity, rejections appeared to contravene the plain language of the instructions. For example, the instructions for Form I-589 read:

If any question does not apply to you or you do not know the information requested, answer “none,” “not applicable,” or “unknown.”

In many of the cases examined, however, the only accepted answer for questions that do not apply to the applicant is “N/A.” Applications that used other terminology enumerated in the instructions, such as “none” or “not applicable” were rejected.

When could this extend to other forms? 

USCIS has already begun to update form instructions or proposed form instructions removing the “if any/if applicable” language. Forms I-290B and I-929 have already been updated, but we are likely to see more to follow. USCIS may not announce when the “blank space policy” is extended to other forms.

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November Visa Bulletin Update

November Visa Bulletin Released: Are You Current?

DATES FOR FILING CHART WILL BE USED FOR EMPLOYMENT-BASED CASES

USCIS announced that applicants can use the “Dates for Filing” chart, which opens up visas to several years of additional applicants in each category when compared to the Final Action Dates chart. Last month, the October Visa Bulletin predicted “rapid forward movement” but those estimates are removed in November’s bulletin. The Department of State and USCIS may be basing the charts and predictions on expected processing capacity. We should continue to see forward movement through 2021, but it is unclear whether the movement will be “rapid” as described by DOS last month. 

Current Month’s Adjustment of Status Filing Charts

For Family-Sponsored Filings:

In the F2A category, there is a cutoff date on the Dates for Filing chart.  However, the category is “current” on the Final Action Dates chart.  This means that applicants in the F2A category may file using the Final Action Dates chart for November 2020.

For all the other family-sponsored preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for November 2020.

For Employment-Based Preference Filings:
For all employment-based preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for November 2020.

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

 

FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

 

DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

Update on Predicted “Rapid Forward Movement”

Last month, the Visa Bulletin included more detail on the expected advancement through January of 2021. See our October Visa Bulletin post. The Visa Bulletin predicted that employment-based categories would have “rapid forward movement” for most categories and also gave predictions for minimal monthly movement in family-sponsored categories. This section is noticeable absent from the November Visa Bulletin. As we stated last month, the determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables. It seems that the Department of State is not sharing a similar estimate in November as they did in October.

Next Steps

If you are current using the designated charts above, contact us immediately to get your case started.

  1. Request an engagement letter and invoice.
  2. Determine whether you need to request work and travel permits and note on engagement letter.
    If you depart the U.S. prior to receiving your travel approval and without a valid underlying non-immigrant visa, USCIS will determine you have abandoned your request to adjust status. 
  3. Once the invoice is paid, funds remain in your client trust account.
  4. You will be invited to our secure client portal.
  5. The legal team will send you the appropriate checklists and questionnaires.
  6. Complete the questionnaires and upload the documents back to the portal.
  7. The attorney will guide you through the whole process and request any additional information to improve your filing.
  8. File before the end of the month, just in case the predictions for “rapid forward movement” don’t hold true due to the increased filings.

Not quite current? Start gathering your documentation to prepare for the rapid forward movement. Send your country of birth and priority date to info@challalaw.com so we can notify you if you may be eligible for filing when the next Visa Bulletin is released.

REQUIRED DOCUMENTATION

International Travel: Please advise our office if you have planned or anticipate any international travel in the next twelve months.

If you have ever been arrested in the U.S. or another country, please disclose to our office immediately so that our office can best represent you.  

  • Copy of Foreign Passport (and expired passport if it includes immigration history)
  • Most recent I-94
  • Copy of all prior immigration documentation (I-797s, I-20s, DS-2019s, I-601 waiver, etc.)
  • Copy of Employment Authorization Document (EAD) work cards
  • Copy of Birth Certificate
  • Copy of Marriage Certificate
  • For prior marriages, copy of marriage certificate and evidence of legal termination (divorce decree or death certificate)
  • Police Certificates – ONLY REQUIRED FOR CONSULAR PROCESSING (Must be obtained for any arrests in the U.S. or in another country.)
  • Documentation of any criminal arrests, convictions, etc. (REQUIRED IF APPLYING FROM U.S.)
  • Certificates of citizenship to other countries other than country of birth
  • Copy of any U.S. federal tax returns for three most recent years
  • Copy of any W-2 statements for three most recent years (or covering all years of employment for an employer-sponsored green card)
  • Copy of paystubs for six most recent months
  • Six (6) U.S. passport-style photos
  • Civil Surgeon Medical Exam – Form
    I-693 (sealed in an envelope with full name printed on the outside; must be submitted to USCIS within 60 days of physician’s signature)
  • I-485 Supplement J for employment-based cases (signed by original petitioning employer demonstrating continued offer of employment)
  • USCIS Filing Fee and Legal Fee

Any document not in English must be accompanied by a certified English translation.

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

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Proposed Rule: H-1B Wage-Based Cap Selection

[UPDATE: Final Rule published in Federal Register]

The Department of Homeland Security has demonstrated their intent to limit legal immigration once again, posting a Notice of Proposed Rulemaking (NPRM) that would modify the H-1B selection process from one that has been random to a new wage-based ranking system. The proposed rule allows comments through December 2, 2020 and form revision comments are due by January 3, 2021. The rule would not take effect until the final rule is published and made effective, which could be in 2021. USCIS states:

If finalized as proposed, USCIS would first select registrations (or petitions, if the registration process is suspended) generally based on the highest Occupational Employment Statistics prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification code and area(s) of intended employment. Replacing the random selection process in this manner is expected to help counter the downward pressure on the wages of U.S. workers that is created by an annual influx of relatively lower-paid, new cap-subject H-1B workers.

Prioritization and selection based on wage levels better balances the interests of petitioners, H-1B workers, and U.S. workers. The changes proposed in this NPRM would maintain the effective and efficient administration of the H-1B cap selection process while providing some prospective petitioners the ability to potentially improve their chance of selection by agreeing to pay H-1B beneficiaries higher wages that equal or exceed higher prevailing wage levels.

The stakeholder message also stated that the NPRM would “further the administration’s goal of prioritizing H-1B cap-subject registrations for petitioners seeking to employ higher-skilled and higher paid workers, which is more aligned with the general congressional intent for the H-1B program.”

Key Provisions of the Proposed Rule

While the H-1B cap registration system has historically been a random selection process, the rule would shift to a ranking of registrations based on the highest OES wage level that the proffered wage equaled or exceeded for the relevant SOC code in the area of intended employment. The top-ranked registrations would begin at OES wage level IV and proceed in descending order.

  • If the proffered wage falls below OES wage level I because the wage is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration as OES level I.
  • After the 65,000 “regular cap” selections are made, the same process would be utilized to meet the advanced-degree exemption.
  •  If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.
  • If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
  • Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.
  • The electronic registration form (and the H-1B petition) will be amended to require provision of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.
  • The proposed rule requires that a valid registration must represent a legitimate job offer.
  • USCIS may deny the petition if it is determined that the statements on the registration or petition were inaccurate, fraudulent, or misrepresented a material fact.
  • A petition also may be denied if it is not based on a valid registration submitted by the petitioner (or its designated representative), or a successor in interest, for the beneficiary named in the petition.
  • USCIS may deny or revoke approval of a subsequent new or amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.
  • USCIS will not deny an amended or new petition solely on the basis of a different proffered wage if that wage does not correspond to a lower OES wage level than the wage level on which the registration was based.

Employers and other concerned parties should submit comments prior to December 2, 2020. You can submit formal comments to the agency on the Federal Register website.

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Public Charge Rule Update: Form I-944 Required Again

Form I-944 Required for Green Card Filings (Again)

Once again, the courts have allowed the “public charge rule” to go into effect, staying a November 2, 2020 decision that vacated the DHS rule. The November 2, 2020 ruling in the district court in Cook County, Illinois, et al v. Wolf et. al., (19-cv-6334), granted summary judgment in favor of Plaintiffs on their claim that DHS’s Public Charge Rule, 84 Fed. Reg. 41,292 (Aug. 14, 2019) violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et. seq. The district court specifically ruled that:

  1. the public charge exceeds DHS’s authority under the public charge provision of the INA, 8 U.S.C. § 1182(a)(4)(A);
  2. is not in accordance with law; and
  3. is arbitrary and capricious.

Therefore, the court immediately set aside the DHS Public Charge Rule nationwide without staying its decision pending appeal. However, on November 3, 2020, the Seventh Circuit issued an administrative stay, effective immediately. This ruling dictates that all adjustment of status (Form I-485) green card filings must be filed with Form I-944 once again. 

All applications and petitions subject to the rule postmarked or submitted after February 24, 2020 will be required to submit the I-944 form. USCIS will issue Requests for Evidence in those cases that did not include the form until October 13, 2020. If the I-944 form is not included after October 13, 2020, Form I-485 will be rejected at the time of filing. It is not clear whether cases issued between the November 2 and November 3 rulings will be treated. The cases will either be rejected and returned or will be accepted and a Request for Evidence (RFE) will be issued for the I-944 form and required documentation. 

Additional Public Charge Resources

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E-Verify Case Tips

USCIS recently provided these tips for Creating E-Verify Cases.

DO:

  • Review acceptable documents from Form I-9 Lists of Acceptable Documents
  • Review an identity document with a photo if the employee presented a List B document
  • Create a case for each newly hired employee no later than the third business day after the employee starts work for pay
  • Enter the employee’s email address in E-Verify if they provided one on their Form I-9
  • Notify each employee who receives a Tentative Nonconfirmation (TNC) and give them the opportunity to contest it
  • Give employees their Further Action Notice and discuss it with them privately
  • Close cases timely
  • Safeguard all personally identifiable information

DO NOT:

  • Discriminate against workers because of their national origin, citizenship, or immigration status
  • Verify employees hired before Nov. 7, 1986
  • Request specific documents from employees when they complete their Form I-9
  • Create cases for employees hired before you enrolled in E-Verify
    • Certain federal contractors may need to create E-Verify cases for employees that were hired before the contractor enrolled in E-Verify
  • Create duplicate cases for the same employee
  • Terminate or take adverse action against an employee because they received a TNC
  • Share any login information, including user ID and password

Additional Resources

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn. You can also join our Telegram H-1B community.

Contact us at info@challalaw.com or 804-360-8482 to get your case started today.