JANUARY 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the January 2020 Visa Bulletin. This is the fourth Visa Bulletin of Fiscal Year 2021. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

 

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	01SEP19	01SEP19	C
2nd	C	01JUN16	01OCT09	C
3rd	C	05DEC17	15MAR10	C

 

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 filings.  A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current.  We expect these categories to stay current for the foreseeable future.  The only constraint to the Philippine EB-3 visas being issued is the capacity at the Embassy in Manila.  It remains to be seen how increasing COVID infection rates bear on embassies capacities.

India had another month defined by variance.  India EB-1 moved ahead five more months, after six months in December.  Unfortunately, India EB-2 and EB-3 each moved ahead by only one week.  These slow progressions, along with the large number of India EB-2 and EB-3 filings in October, November, and December, probably means that no further material progress will happen in India EB-3 for a long time.

China EB-2 and EB-3 again both moved forward by a few weeks, a trend that may continue.  China EB-1 showed more progress than expected, perhaps because of declining rates of visa issuance out of the American posts in China.

MU expects that future Visa Bulletins will continue to have positive news, including slow but continued forward progression in the Chinese and Indian categories.  We also expect the Philippine and Worldwide categories will remain current for the foreseeable future.

SCHEDULE A POLICY MANUAL CHANGES

As part of its process in retiring the previously used, Adjudicator’s Field Manual, USCIS recently released updated guidance on Schedule A designations in its Policy Manual. While the guidance is substantively unchanged for the most part, USCIS has added more detail which will hopefully result in more consistent adjudication.  This chapter in the Policy Manual can be found in its entirety on the USCIS website:

https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-7

Here are two notable changes/updates: 

No Requirement for end-client contracts.  Employers that staff Physical Therapists or Registered Nurses at third party worksites will be pleased to find that USCIS has explicitly stated in the Policy Manual that there is no requirement for an employer to provide contracts between itself and its clients. Over the past several years our firm had seen an increasing trend of RFEs requesting such contracts. It would seem that USCIS is at the very least acknowledging that client contracts are not an evidentiary requirement. 

USCIS still retains the right to request such contracts if it has a “reasonable and articulable reason” that there is not a bona fide job offer available. Therefore, while USCIS acknowledges that it is not a requirement, it is likely that the Service will still make requests for client contracts, but perhaps in less cases. 

Only one 9089 is required, perhaps.  Traditionally, a Schedule A, I-140 petition required two uncertified ETA Form 9089s with original signatures. The requirement for a duplicate ETA Form 9089 is no longer present in this update. Historically, USCIS required a duplicate copy so that upon approval, USCIS would retain a copy, and the other would be provided to the DOL. That process is also missing from the Policy Manual now, and instead it indicates that USCIS will simply retain the ETA Form 9089 whether the petition is approved or denied. Without further confirmation of this change though, it would be prudent to still include the duplicate copy with the I-140, but our firm will monitor if further clarification is made by USCIS.

FEDERAL JUDGE BLOCKS TRUMP ADMINISTRATION’S ATTEMPT TO DISMANTLE LEGAL IMMIGRATION

In a striking rebuke of the Trump Administration’s attempts to dismantle legal immigration, the U.S. District Court for the Northern District of California has set aside both (i) the DHS interim final rule (IFR), Strengthening the H-1B Nonimmigrant Visa Classification Program, and (ii) the DOL IFR, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.  

This twin-killing of Trump policy does several things:

• It reinstates the prior DOL OES wage survey back to the formula that has been in place for more than a decade.
• It resets H-1B law, allowing third-party placement, three year-approval notices and a fuller range of approvable H-1Bs. 

The Court’s decision, which was issued last night, said that, the Administration, "failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA's notice and comment requirements.”  MU Law will provide updates as more information is available.