IMMIGRATION UPDATE – December 15, 2021
USCIS Submits Final Rule to Expand the Premium Processing Service to the OMB for review – On December 8, 2021 USCIS submitted a final rule to expand premium processing to include additional case types to the Office of Management and Budget, advancing it to the next steps of publication and implementation.
USCIS Temporarily Waives 60-Day Rule for Civil Surgeon Signatures – USCIS is temporarily waiving, until September 30, 2022, the requirement that the civil surgeon sign Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an applicant files an application for the underlying immigration benefit.
Labor Dept. Implements Court Order Vacating Prevailing Wage Final Rule – The vacated rule amended regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based visas or through H-1B, H-1B1, or E-3 nonimmigrant visas.
Labor Dept. Provides Guidance on Employers’ H-2B Visa Program Overtime Pay Obligations – The Department of Labor’s Wage and Hour Division provided guidance on employers’ overtime obligations related to the H-2B visa program.
E-Verify Consolidates User Profile Screen – The consolidated elements include user profile information, updating/changing a password, and updating/changing password challenge questions and answers.
USCIS Submits Final Rule to Expand the Premium Processing Service to the OMB for review
On December 8, 2021 USCIS submitted to the Office of Management and Budget a final rule to expand premium processing to include additional case types. The submission to OMB puts the rule closer to the next steps of publication and implementation. The regulation implements October 2020 legislation which directed USCIS to expand the premium processing service to include applications for employment authorization (Form I-765) and Form I-539 nonimmigrant changes of status and extensions of stay for certain dependent family members (for example, H-4 and L-2).
The specifics of the case types eligible for premium processing, processing timelines, and related fees and implementation dates are not available yet. The OMB generally has 90 days to review the USCIS rule. Once OMB clears the rule it will be published in the Federal Register. It would then become effective according to the terms of the rule. The timeline to implementation is unknown but could be several months.
USCIS’ premium processing program is currently limited to some nonimmigrant worker petitions (Form I-129) and some immigrant worker petitions (Form I-140). For an additional $2500 premium processing filing fee, USCIS will adjudicate a petition within 15 calendar days of submission, or return the fee. Adjudication may be an approval, denial, or request for additional evidence, all of which stop the premium processing clock. The proposed timeframes and fees set forth by the October 2020 legislation are as follows:
Case Type Processing Timeline Premium Processing Fee
Most Form I-140 EB-1, EB-2 15 calendar days (current) $2500
and EB-3 petitions
Form I-140 EB-1 Multinational
Form I-140 EB-2 Multinational 45 days Not greater than $2,500
Form I-140 EB-2 Physician
Form I-129 Nonimmigrant 15 calendar days (current) $2,500
Form I-539 Change/Extension 30 days Not greater than $1,750
of Status to F, J or M
Form I-539 Change/Extension
of Status for E, H, L, O, P and R 30 days Not greater than $1,750
Form I-765 Application for 30 days Not greater than $1,750
USCIS Temporarily Waives 60-Day Rule for Civil Surgeon Signatures
U.S. Citizenship and Immigration Services (USCIS) is temporarily waiving, until September 30, 2022, the requirement that the civil surgeon sign Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an applicant files an application for the underlying immigration benefit (including Form I-485, Application to Register Permanent Residence or Adjust Status).
USCIS said this temporary waiver “will help applicants who have been affected by the COVID-19 pandemic and related processing delays, which have sometimes caused delays in completing the immigration medical examination.” The temporary waiver will benefit many applicants, USCIS noted, “including Afghan nationals evacuated under Operation Allies Welcome who have completed immigration medical examinations at government-run facilities but were not able to apply for adjustment of status within 60 days of the completed examination.”
- “Temporary Waiver of ’60-Day Rule’ for Report of Medical Examination and Vaccination Record (Form I-693),” USCIS Policy Alert, Dec. 9, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211209-I-693FilingReqt.pdf
Labor Dept. Implements Court Order Vacating Prevailing Wage Final Rule
The Department of Labor’s Employment and Training Administration (ETA) published a final rule, effective December 13, 2021, implementing a federal district court order vacating a controversial January 14, 2021, final rule that was initially promulgated in October 2020. The rule amended ETA regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based visas or through H-1B, H-1B1, or E-3 nonimmigrant visas.
The new final rule removes the regulatory text that DOL initially promulgated and restores the regulatory text to appear as it did before.
- “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Implementation of Vacatur,” 86 Fed. Reg. 70729 (Dec. 13, 2021), https://bit.ly/3yg4s3k
Labor Dept. Provides Guidance on Employers’ H-2B Visa Program Overtime Pay Obligations
The Department of Labor’s Wage and Hour Division (WHD) disseminated a field assistance bulletin on December 7, 2021, providing enforcement guidance on employers’ overtime obligations related to the H-2B visa program.
Among other things, the bulletin notes that the H-2B visa program does not mandate the payment of an overtime premium for hours worked exceeding a certain number in the day, week, or pay period. However, employers participating in the H-2B visa program are required by the Fair Labor Standards Act (FLSA) to pay an overtime premium of not less than one and one-half times the worker’s regular rate of pay for hours worked exceeding 40 hours in a workweek. There are exemptions from the overtime requirements, WHD noted, but these exemptions do not usually apply to industries represented in the H-2B visa program. An employer who is employing workers who are exempt from the FLSA overtime requirements must still comply with any state or local laws requiring overtime pay, WHD said.
- Field Assistance Bulletin No. 2021-3, Wage and Hour Division, U.S. Dept. of Labor, Dec. 7, 2021, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2021_3.pdf
E-Verify Consolidates User Profile Screen
On December 7, 2021, E-Verify notified users via email that they can now view and complete several actions from a consolidated user profile screen, which “allows users to view all of their account information quickly and easily, without having to navigate to multiple pages.”
The consolidated elements include user profile information, updating/changing a password, and updating/changing password challenge questions and answers.
Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars.
E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month.
AGENCY PROCESSING TIMES
USCIS case processing times: https://egov.uscis.gov/processing-times/
US Department of Labor: https://flag.dol.gov/processingtimes
Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant information that is not rendered immediately obsolete. The list of online resources below is intended to serve as a quick reference to the most current available agency information.
Coronavirus.gov: Primary federal site for general coronavirus information
USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
CDC.gov/coronavirus: Centers for Disease Control and Prevention information
American Immigration Lawyers Association: (links to practice alerts on this site are restricted to members)
Immigration Agency Information
Department of Homeland Security: DHS.gov/coronavirus
– Overview and FAQs: https://www.ice.gov/coronavirus
– Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
– Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
– Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home
Department of Labor:
– OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
– COVID-19 FAQs:
Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf
State Department: https://www.state.gov/coronavirus/
Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
J-1 exchange visitor information: https://j1visa.state.gov/covid-19/
Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic
AGENCY TWITTER ACCOUNTS
Study in the States: @StudyinStates
I-9 AND E-VERIFY WEBINARS
USCIS and Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section, Civil Rights Division,has joined with USCIS to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes. For more information or to register, see: https://www.justice.gov/crt/webinars.
E-Verify webinar schedule: https://www.e-verify.gov/calendar-field_date_and_time/month/202004.
This newsletter was prepared in collaboration with ABIL, the Alliance of Business Immigration Lawyers, comprised of twenty U.S. immigration lawyers who head some of the top immigration practices in the country. Larrabee Albi Coker LLP is an active member of ABIL.
Legal Disclaimer: This newsletter is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.