US permanent residency via PERM Labor Certification is one of the few practice areas in business-related Immigration at this time that has not come under attack by the Trump administration.

Our firm has been through all three of the Department of Labor programs: The traditional method, Reduction in Recruitment (RIR) and PERM. Our depth of expertise is extensive as is shown by our perfect record of approvals over the years. The three parties involved (the employee, the employer and the attorney) all have a distinct role to play in this labor-intensive, highly detailed process that sets the strategy and the roadmap to obtaining a green-card.

The long-awaited final rule to modernize and improve several aspects of employment-based nonimmigrant and immigrant visa programs, in order to retain EB-1, EB-2 and EB-3 immigrant workers and high-skilled nonimmigrant workers, is moving forward and has made it through the OMB review process.  It was published in the Federal Register on November 18, 2016 and will be effective in 60 days.   USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017, just before President Obama leaves office.

Among other things, DHS is amending its regulations to:

• Clarifies and improves longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.

• Better enables U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.   This means that you can use the previous employer’s I-140 petition to extend your H-1B with a new employer even if it is withdrawn (as long as it was withdrawn more than 180 days after approval), or in the event of the termination of the employer’s business.  So, there is no I-140 portability; you will still need a new labor certification and I-140 petition to file your adjustment of status application.

• The final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in 13 some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, allowing nonimmigrants in the above classifications a reasonable amount of time to enter the US and prepare to begin employment. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time to depart the US or take other actions to extend, change, or maintain lawful status.

• Establishes a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period provided their authorized stay is valid for at least 60 days after such cessation. If not, the grace period will end on the date the authorized date is set to expire. This will obviously enable own to more readily pursue new employment and an extension of their nonimmigrant status.

• The Final rule allows allows certain high-skilled individuals in the United States  to apply for work authorization, given:

1. They are the principal beneficiaries of an approved Form I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion. Such employment authorization may only be renewed in limited circumstances and only in one year increments.

• Automatically extends the employment authorization in the same category and validity of Employment Authorization Documents for up to 180 days from the date of the prior EAD’s expiry (EADs or Form I-766’s) or until djudication of the EAD nrenewal application, for certain individuals who apply on time to renew their EADs.  The Form I-9 rule is also updated to permit an I-797 receipt notice to be accepted as a permissible I-9 document, in conjunction with the expired EAD, to re-verify the foreign national’s work authorization. This additional 180-day period will not apply to those categories that first require the approval of an underlying application before the EAD renewal can be adjudicated.

• Eliminates the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

• Clarifies various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap program.

For more information, please refer here for the Final Rule.  If you have any questions, please contact our office.  We will continue to keep you posted on the implementation of these new policies.

USCIS is seeking public comments on a proposed rule that would modernize and improve certain important aspects of employment-based nonimmigrant and immigrant visa programs. USCIS is also proposing regulatory amendments to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).

Read the notice of proposed rulemaking published in the Federal Register on December 31, 2015: Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. The public has until February 29, 2016 to comment.

Among other things, the DHS proposals to amend its regulations entail the following:

…  To clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
…  To better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
…  To improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval
…  To clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer’s business shut down.
…  To allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:

1.         Are the beneficiaries of an approved I-140 petition,

2.         Remain unable to adjust status due to visa unavailability, and

3.         Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.

Such employment authorization may only be renewed in limited circumstances.

…  To clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, clarification concerning which H-1B nonimmigrants are exempt from the statutory cap to ensure that those who are contributing to US research and the education of Americans may remain in the USA; and protections for whistleblowers.
…  To establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.

These proposed changes do not take effect with the publication of the notice of proposed rulemaking. Instead, they would take effect on the date indicated in the final rule when the final rule is published in the Federal Register.  Here is the proposed rule.  To submit comments, follow the instructions.  You may submit comments, identified by DHS Docket No. USCIS-2015-0008, by one of the following methods:

Federal eRulemaking Portal: You may submit comments to USCIS by visiting http://www.regulations.gov. Follow the instructions for submitting comments.  By email: You may submit comments directly to USCIS by emailing them to: USCISFRComment@dhs.gov. Please include DHS Docket No. USCIS-2015-0008 in the subject line of the message.

The Department of Labor:  Modernizing the Permanent Labor Certification Program (PERM)

DOL is engaging in rule making that will consider options to modernize the PERM program to be more compatible to changes in the US workforce, to further align the program design with the objectives of the US immigration system and the needs of workers and employers, and to enhance the integrity of the labor certification process.  This is not expected to be proposed until April 2016.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

• Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.  Refer to AC 21 12/27/2005 Aytes Memo for details.

Proposal to Enhance Opportunities for Highly-Skilled Workers: H-1B1 (Chile and Singapore) and E-3

Specifically, the change to the regulation would:

• Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer.

• Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. Under current regulations, employers of workers in E-3, H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

• Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.  We will keep you posted on next steps when this actually becomes effective.

The DHS Press Release

H.R. 3012, the Fairness for High-Skilled Immigrants Act, introduced on September 22, 2011 by Rep. Chaffetz (R-UT), eliminates the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

On 10/27/11, the House Judiciary Committee held a markup and H.R. 3012 was reported favorably out of committee by a voice vote. An amendment from Rep. Lofgren (D-CA) that would make adjustments to the three year phase-in period was accepted. H.R. 3012 must next be scheduled for House floor debate which may occur in the next few weeks.

On 11/29/11 the House passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.

Sen. Charles Schumer, D-N.Y., who heads the Senate Judiciary panel on immigration, said he planned to move the bill as quickly as possible in the Senate, “where we expect it to find overwhelming support.” He said the legislation would “remove outdated constraints that prevent us from attracting the kind of innovators who can create job growth in America.”

Crystal Williams, executive director of the American Immigration Lawyers Association, said the measure “makes the system a tiny bit fairer” and does “demonstrate that Congress can do something on immigration, however small.”  She cited estimates that while someone from England might wait two or three years for a green card, an Indian could conceivably be on the waiting list for decades.

Under current law, no more than 7% of the visas issued per year in any one immigrant visa category can go to natives of any one country.  On the employment-based immigrant visa side, natives of India and China face longer waits than natives of other countries, because natives of those countries send more high-skilled immigrants to the US than any other country.  On the family-based immigrant visa side, natives of Mexico and the Philippines face longer waits than natives of other countries, because there are more immigrants and US citizens with family ties to those countries than there are to other countries. HR 3012 will eliminate, over a three year period, the per-country limit in the employment-based system, but it will not raise the number of legal immigrants allowed to enter the USA.

We will keep you posted on developments as this bill moves to the Senate.  We link to an excellent article on the subject.

The most significant movement in the EB (employment-based) Visa Bulletin for July 2010 is that the India EB-2 classification for professionals with Advanced Degrees or persons of Exceptional Ability advanced 8 months – from February 1, 2005 to October 1, 2005.

Further, the Department of State released some “best case scenario” predictions of where the Visa Bulletin dates might be at the end of fiscal year 2011,  (as of October 1, 2010) as follows:

Employment First: Current
Employment Second:  China and India: March or April 2006

Employment Third:

Worldwide: June through September 2004
China: October through December 2003
India: February 2002
Mexico: Unavailable
Philippines: June through September 2004

If this comes to pass, these predictions represent significant movement forward for many of the categories. We link to the July Bulletin here, and will continue to keep you updated.

Here is the current bulletin for June.  We additionally link to one of our earlier Immigration Solutions articles that explains how to interpret the Visa Bulletin.

Of note, there have been some substantial changes in the EB-3 category in which virtually all RNs are classified for green-card purposes. The cut-off date for worldwide and the Philippines retrogressed from May 1, 2005 to March 1, 2003, while EB-3 for India advanced 16 days to 11/01/2001. We were warned that this might happen at the start of this current fiscal year in October 2008.

The cut-off dates for the retrogressed EB-3 subcategories – which cover all countries except India and China – are effective immediately. This retrogression is due to the increased demand for visa numbers by USCIS in adjustment of status cases for persons already in the USA. Therefore, beginning today, March 9, 2009, Immigrant visa applications overseas should be processed according to the March 2009 Visa Bulletin, as the March 2009 visa numbers were allocated to the consular posts by the State Department at the beginning of the month. USCIS will not accept applications for adjustment of status in the retrogressed EB-3 subcategories unless the priority date is current under the April 2009 Visa Bulletin.

In April, priority date cut-offs for the first three employment-based categories will be as follows:

* EB-1: Current for all countries.
* EB-2: China – February 15, 2005; India – February 15, 2004; all other countries – current.
* EB-3 Professionals and Skilled Workers: India – November 1, 2001; all other countries – March 2003.
* EB-3 Other Workers: All countries – March 1, 2001.
The notes to the Visa Bulletin indicate that depending upon future demand for visa numbers for the remainder of fiscal year 2009 (through September 30, 2009), further retrogression and unavailability is possible. It further indicates that this situation is temporary pending release of the October 2009 Visa Bulletin – the start of fiscal year 2010.

Although this is the not the greatest of news, in an effort to continue to keep you informed with accurate information, we’d rather you hear this from us then in the chat rooms and nurse forums. We remain optimistic that new legislation will be enacted this year to increase visas for nurses and speed up the process.

By Thomas J. Joy, Esq.

October 2008 Newsletter

October 1, 2008 marks the start of the new government Fiscal Year 2009 (“FY 2009”). At this time the new annual quota of immigrant visa numbers becomes available. Unfortunately, retrogression is still with us.

The anxiously awaited State Department October Visa Bulletin indicates EB-3 cutoff dates as follows: China (October 1, 2001), India (July 1, 2001), Mexico (July 1, 2002), Philippines (January 1, 2005), all other countries (January 1, 2005). Earlier visa bulletins had predicted that FY 2009 would start with the more favorable cutoff dates that had existed in June 2008 just before the EB-3 category became totally unavailable from July through September 2008. 

However, heavier demand from USCIS than anticipated has caused the State Department to establish cutoff dates further back than those that existed for June 2008. Finally, a note in the October Visa Bulletin states that little if any forward movement is likely until the extent of the USCIS backlog of old priority dates can be determined. As a result, at this time, it is impossible to predict or even guess how soon immigrant visa numbers will become available for later filed cases. We will keep you advised of any new information as it is released by the State Department. 

In the area of proposed new laws to increase the immigrant visa quotas for nurses and to recapture unused immigrant visa numbers from previous annual quotas, significant progress has been made as previously reported here. The nurse legislation and the recapture legislation introduced in the House of Representatives has been repeatedly postponed for further hearings and the recapture legislation introduced in the Senate has not yet been scheduled for hearings. 

This proposed legislation is the result of bipartisan efforts. With Congress leaving for the upcoming national elections and the ongoing problems with the US economy, it is unlikely that this pending legislation will be enacted this year. 

However, due to the bipartisan support for and the significant progress of this pending legislation this past year, we are optimistic that same or similar legislation will be reintroduced in the new Congress which will start in early 2009.

As stated here previously, we advise and encourage you to continue to file your Schedule A immigrant visa petitions for nurses. This initial step in the immigrant process is not prevented by the presence of retrogression. 

By filing now, you will be ahead of the competition when retrogression is lifted by the enactment of the proposed nurse and recapture legislation.