December 2020 Visa Bulletin: EB-1 Advances

In December 2020 Visa Bulletin, employment-based categories advance moderately.  Family-based categories remain stagnant.  

As predicted last week, the Final Action Date of EB-1 India and China advance 5 months to April 1, 2019.  The EB-2 and EB-3 categories move forward slightly.  

The Filing Date of EB-3 India has retrogressed by one year, after October bulletin's 5-year advancement. "Downgrading" is still possible form EB-2 to EB-3 for certain Indian applicants.

Family visa categories are mostly unchanged. Charlie Oppenheim expected that there will be forward movements in January 2021. 

USCIS  Adjustment of Status Dates for December 2020

Adjustment of status (AOS) applicants in the F2A category - which may file using the Final Action Dates chart in the December 2020 Visa Bulletin. 

Applicants in all other family-sponsored preference and employment-based preference categories must use the Dates for Filing chart.

AD: Dates for Final Action (Green Card Approval)           FD: Dates for Filing Applications Only

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	09/15/2014	09/15/2014	09/15/2014	01/08/1998	12/15/2011
	FD	07/22/2015	07/22/2015	07/22/2015	02/22/2000	10/08/2012
F2A	AD	C	C	C	C	C
	FD	08/01/2020	08/01/2020	08/01/2020	08/01/2020	08/01/2020
F2B	AD	07/08/2015	07/08/2015	07/08/2015	04/08/1999	08/01/2011
	FD	05/01/2016	05/01/2016	05/01/2016	12/01/1999	04/01/2012
F3	AD	06/15/2008	06/15/2008	06/15/2008	08/01/1996	02/15/2002
	FD	06/01/2009	06/01/2009	06/01/2009	08/15/2000	12/22/2002
F4	AD	09/22/2006	09/22/2006	03/08/2005	06/22/1998	01/01/2002
	FD	09/15/2007	09/15/2007	11/22/2005	04/22/1999	09/01/2002

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)
4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)

Employment		Other Countries	China	El Salvador Guatemala Honduras	India	Mexico	Philippines	Vietnam
EB1	AD	C	04/01/2019	C	04/01/2019	C	C	C
	FD	C	11/01/2020	C	11/01/2020	C	C	C
EB2	AD	C	05/01/2016	C	10/01/2009	C	C	C
	FD	C	10/01/2016	C	05/15/2011	C	C	C
EB3	AD	C	11/01/2017	C	03/15/2010	C	C	C
	FD	C	06/01/2018	C	01/01/2014	C	C	C
Other Workers	AD	C	02/15/2009	C	03/15/2010	C	C	C
	FD	C	05/01/2009	C	01/01/2014	C	C	C
EB4	AD	C	C	02/01/2018	C	11/22/2018	C	C
	FD	C	C	05/01/2018	C	C	C	C
EB5	AD	C	08/15/2015	C	C	C	C	09/01/2017
	FD	C	12/15/2015	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)    

5th: Employment Creation (Investors)

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Proposed Rule to Collect Biometrics Data of All Non-US Citizen Visitors

On 11/19/2020, Customs and Border Patrol (CBP), a branch of the US Department of Home Security (DHS), published a notice of proposed rulemaking regarding collection of biometric information from non-US citizens visitors at the ports of entry and departure.  

Under the new rule, DHS will create a comprehensive biometric entry-exit system for:

• Collection of biometrics from non-citizens departing from airports, land ports, seaports, or any other authorized point of departure. 
• Use of facial recognition technology on all non-citizens upon entry and/or departure. 

A pilot program has been underway for collection of biometrics information at land ports and also at up to 15 airports and seaports.  The proposed rule aims at making the biometrics program comprehensive at all ports of entry.  Public comments can be submitted on or before 12/21/2020 at Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments via docket number USCBP–2020–0062.

Visa Bulletin Predictions - December 2020 and Beyond - 262,000 EB Numbers Expected

                                                

Today in a virtual immigration conference hosted in New Jersey, DOS Visa Office Chief Mr. Charlie Oppenheim provided some exceptional insights about the upcoming visa bulletins and other related issues:

December 2020 Visa Bulletin

EB-1 India and China will advance to 04/01/2019.  Other Employment Preference categories will also advance, except EB-4 and EB-5.

Family Preference categories will hold steady in December.

January 2020 Visa Bulletin

Family Preference categories are expected to advance. Charlie specifically mentioned that he expects the Philippines categories to advance.

Usage of Visa Numbers During COVID

Charlie explained that usually the State Department uses up about 95% of all family-based visa numbers in overseas cases, while DHS uses up about 85% of the employment-based visa numbers within the U.S. 

This year, due to COVID and shutdown of the U.S. Consulates, there has been 122,000 unused family-based visa numbers. These numbers went to the employment-based categories by law. 

On the employment side, unused EB-1 numbers spill over to EB-2, then to EB-3 and back to EB-1. Unused EB-4 and EB-5 numbers also go to EB-1.  

For FY 2020, between 8,000 to 9,000 EB-5 numbers were unused due to consulate closure, mostly notably Guangzhou, China. These numbers were captured by EB-1, first to the Worldwide countries, and then to other oversubscribed categories based on priority dates. 

Diversity Visa cases were initially blocked by executive orders. Applicants were still able to submit applications. Charlie explained that normally documents are submitted in November and December and more rapid movements happen in April or May.

Allocation of Overseas Visa Numbers 

Charlie explained that he allocates blocks of visa numbers each month to each overseas consulate, although a percentage of numbers are usually unused due to insufficient documentation, etc. He would estimate the percentages of unused visa numbers - which are reverted back to the DOS inventory - when he sets the Final Action dates for the following month's Visa Bulletin.

Final Action Dates vs. Filing Dates

Charlie explained that the State Department sets the Filing Dates about 8 to 12 months ahead of expected visa availability so that documents can be collected in advance from overseas applicants. DHS may also choose to use the Filing Date chart based on their caseload and resources. For the last fiscal year, DHS only chose to use the Filing Dates in the early months.  Still, Charlie mentioned that DHS usage of immigrants visa numbers in adjustment cases has become more visible to him, which in turn enabled him to more accurately set the cutoff dates in the Visa Bulletins.  For example, for FS 2020, his use of employment-based visa numbers were within 9,000 of the available numbers, or 147K of 156K.  

Overview of Visa Numbers: All-time-high of 262K EB Numbers

Charlie explained that there are statutory limits of 262K and 140K immigrant visa  numbers for family-based and employment-based visa categories respectively.  As explained, unused family numbers are spilled over to the employment categories.  As a result, for FY 2021, Charlie expects an all-time-high of 262K available visa numbers for the employment categories.  Diversity Visa numbers are expected to remain at 55K. 

Delay of Visa Bulletin Release

When asked about the delay of the recent Visa Bulletin releases, Charlie explained that each Visa Bulletin needs to be cleared by certain groups of individuals, without further elaboration.  Apparently the recent delay was caused by slower clearance process. 

 (Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Naturalization Civics Test Questions to Change December 1st

As part of their interview, naturalization applicants must take a civics test to evaluate their knowledge of American history and government. The civics test will be updated soon. If you filed form N-400 and are waiting for an interview, take note of your receipt date as it will determine which version of the civics test you will be administered. 

The receipt date, or filing date, can be found on the official receipt notice from USCIS in a box titled "Received Date". Applicants with a receipt date on or after December 1st, 2020 will take the 2020 civics test. Those with receipt date before December 1st, 2020 will take the usual 2008 civics test. Note that someone who fails their civics test will be rescheduled to take the same version, regardless of the date. The main differences between the two editions are the number of possible questions you can be asked and how challenging they are. 

Applicants taking the 2020 civics test must correctly answer at least 12 out of 20 questions to pass the civics test -- a large increase from the current 6 out of 10. The 20 questions are pulled from an updated pool of 128 questions. Questions include an updated "Recent American History and Other Important Historical Information" category with topics such as the Persian Gulf War and Dwight D. Eisenhower. Some notably more challenging questions that have been added include "The Nation’s first motto was “E Pluribus Unum.” What does that mean?" and "How many Supreme Court justices are usually needed to decide a case?". 

Applicants 65 years-old or older and with at least 20 years of permanent residence will still only need to answer 6 out of 10 questions correctly, with the 10 questions chosen from a pool of 20. The difference is that the pool of 20 questions have been altered. Applicants can be asked questions such as to name the current Speaker of the House of Representatives or list an achievement of a certain historical figure such as Abraham Lincoln. 

Overall, the civics test questions are slightly more numerous and in-depth, which can make things more difficult for applicants that did not attend school growing up in America. However, the updated (and the current) list of questions and accepted answers is provided on the USCIS website. No matter which test you are slated to take, diligent and timely preparation is key to passing the test and gaining citizenship.

 (Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Trump Executive Order Barring U.S. investments in Securities of Chinese Military Companies

According to an executive order (EO) signed by President Trump on 11/12/2020, the U.S. will bar U.S. persons or companies from investing in Chinese companies that support the Chinese military operations.  

The order will be effective as of 01/11/2021 at 9:30 AM, EST, when the U.S. stock markets open.  The order bans all American investments in any person or entity operating directly or indirectly in the United States or any of its territories that the U.S. Defense Secretary and/or Treasury Secretary has determined to be a "Communist Chinese military company."  

According to the EO, many civilian private enterprises in China are compelled by the Chinese government to provide support to its military and intelligence activities.  Hence, these companies financial interests are closely tied to the those of the Communist Chinese government. The EO states that these civilian companies directly support the China's "military, intelligence, and security apparatuses and aid in their development and modernization."

The EO points out that these companies raise capital by selling securities to American investors in stock markets and exchanges both within and outside of the United States.  They also take other actions in order to gain access to U.S. capital, such as lobbying U.S. financial stakeholders to include their securities in market offerings.  

In signing the EO, President Trump declared a national emergency based on the threat posted by these Chinese companies.  

The EO also authorizes additional designations of Communist Chinese military companies in the future. After such designation, investments in these companies will be banned after 60 days. 

The impact of this EO is quite substantial, as many U.S. investors including retirement and pension funds invest in Chinese companies.  After the release of the EO, the stock prices of some large Chinese public companies dropped. 

 (Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Rules to Change the H-1B CAP Selection Process and Prevailing Wages

Right before the 2020 Presidential Election, the Trump Administration published a proposed rule on 11/02/2020 to revamp the current H-1B CAP selection process.  The central idea of the rule is to change the H-1B visa selection process based on the actual salaries offered by the employers.   

Under the current system, petitioners submit a registration for beneficiaries electronically during a designated period. If the number of registrations received exceed the applicable numerical allocation, USCIS will run a lottery to randomly select registrations for further processing.  Selected registrants will be notified to submit H-1B cap-subject petitions during a required filing period. 

Under the rule published by the Department of Homeland Security (DHS), USICS would have to rank and select registrations based on the proffered salary offered to H-1B beneficiaries for the CAP applications. Whenever the annual cap is reached, USCIS would start picking registrations that are filed by petitioners who are offering the highest salaries with their positions. The selection process will continue in descending order to registrations that have been filed for beneficiaries with lower salaries.

Currently, there are 4 wage levels, set by the Department of Labor, for H-1B applications as well as employment-based green card applications. These "prevailing wage" levels will be used as a standard of the ranking.  By law, employers must offer a salary that is higher than the prevailing wage for a particular level of employment.  

Prevailing wages are the wage requirements set by the DOL based on their salary surveys in each employment location. A new rule published on 10/8/2020 by DOL substantially increased the wage requirements, and it took effect almost instantly upon publication. This is another way for the Trump Administration to increase the wage requirements for employers to hire foreign workers.  

Working together, the new rules on H-1B selection and the wage requirements will set the bar very high for H-1B applications.  In fact, these new rules work as a de facto bar for certain employers including small and medium-sized businesses as well as non-exempt universities to hire foreign workers, as it would be very difficult for them to compete with the likes of Google and Microsoft when it comes to offers of salaries.  

Lawsuits have already been filed by employers and other parties to stop the enforcement of these rules.  Given the manner and speed that these rules were pushed out, the courts are very likely to agree with the employers.  Further, the new Biden Administration may also choose not to defend these Trump regulations or to cancel them directly.  Hence, the actual impact of these new rules may be short-lived. Still, employers must plan carefully during the interim to minimize the impact of these remnants of the Trump Administration. 

 (Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Diversity Visa Program ("Green Card Lottery") 2022 - Deadline is 11/10/2020

 

The Diversity Immigrant Visa Program 2022 is a visa lottery program created by U.S. Congress. It is also known as the Green Card Lottery. It is an annual program which opens to all individuals worldwide with approximately 55,000 visas available. For the fiscal year 2022, applicants must submit applications online between 10/7/2020 and 11/10/2020. 

Where to apply and what are the costs?

The lottery is free of charge! It is an official government immigration program and the U.S. Department of State supervises the program. The department has set up an official website where all applications have to be submitted. Official Application Website of the U.S. Government: www.dvlottery.state.gov.

Eligibility 

For DV-2022, natives of the following countries are not eligible to apply because these there were more than 50,000 natives immigrated to the United States from these countries in the previous five years:

Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican

Republic, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan,

Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent

territories, and Vietnam.

Despite the fact that people born in mainland China and Hong Kong are not eligible for DV-2022, those who born in Macau SAR and Taiwan are eligible to apply.

If one was not born in an eligible country, there are two other ways the person may have a chance to be a qualified applicant:

(1) If the person's spouse was born in an eligible country, then the person can claim the spouse's country of birth as his/her birth country, and apply visa lottery based on the spouse's native country.  

(2) As long as neither of the applicant's parents was born in ineligible countries, and they were not residents of the ineligible country at the time when the applicant was born, the applicant would be able to apply for DV-2022 by claiming one of his/her parents' country of birth. For example, if an applicant was born in China mainland, but her parents were born in Taiwan and they were not residents in China mainland at the time of applicant's birth, then the applicant is eligible to apply.

Education and Work Experience Requirement

An applicant must either have a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

When and how to submit an entry

Entries for the DV-2022 program must be submitted electronically. Applicants may access the electronic DV Entry Form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. DV-2022 registration began at 12:00 pm (ET) on October 7, 2020, and will continue until 12:00 pm (ET) on November 10, 2020.

Information Required

Principal entrants are required to provide their biographic information including their name, date of birth, city and country of birth, mailing address, country of residence, marital status, country of eligibility, spouse and children's information, highest level of education, information about their passport, etc.  They must also submit a digital photo that meets the program technical requirements.

Selection process

Lucky winners will be randomly selected by a computer system.  There is no way to improve the odds of getting selected.  As stated before, all eligible members within a family may apply individually, thus increasing the chance of winning.

How to find out the results

Beginning May 8, 2021, through September 30, 2022, applicants will be able to check the status of their DV-2022 entries online.  Visit www.dvlottery.state.gov, click on Entrant Status Check, and enter the unique confirmation number and personal information. Entrant Status Check will be the only way that applicants may check the status of their applications.  It will also provide instructions to the winners of the visa lottery how to proceed with the application process, and also notify them of their appointments for their immigrant visa interview.

Tips:

The DV program has very strict technical requirements for submission. Entries not following the official instructions and requirements will be rejected and disqualified. Furthermore, DHS is technologically capable of identifying fraudulent entries, illegal entries or multiple entries. Also, do not wait until the last week of the registration period to enter. Heavy demand may result in website delays. When in doubt, don't hesitate to seek advice from a qualified immigration attorney.

TPS for South Sudanese Extended for 18 Months; EAD also extended

DHS has extended the TPS designation for South Sudan for 18 months until  May 2, 2022.  Extension registration must be filed between 11/02/2020 and 01/04/2021.

USCIS has also automatically extended the related EAD validity under TPS designation for South Sudan through 05/01/2021.  Employers can complete the I-94 form by using the new expiration date of 05/01/2021.  Reverification is required after 05/01/2021. 

November Visa Bulletin - No Changes with EB Filing Dates

The November Visa Bulletin was finally published today (10/29/2020).   There Filing Date Chart for employment visa categories is almost identical with October's chart.  Hence, downgrading from EB-2 to EB-3 for Indian and Chinese nationals will still be possible. They can also file the I-485 and I-765 applications concurrently.

The Final Action dates have advanced for India and China:

EB1 India: 12/01/18
EB2 India: 09/22/09
EB3 India: 03/01/10

EB1 China: 12/01/18
EB2 China: 04/22/16
EB3 China: 10/01/17

USCIS has decided the following:  

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.

AD: Dates for Final Action (Green Card Approval)              FD: Dates for Filing Applications Only

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	09/15/2014	09/15/2014	09/15/2014	01/08/1998	12/15/2011
	FD	07/22/2015	07/22/2015	07/22/2015	02/22/2000	10/08/2012
F2A	AD	C	C	C	C	C
	FD	08/01/2020	08/01/2020	08/01/2020	08/01/2020	08/01/2020
F2B	AD	07/08/2015	07/08/2015	07/08/2015	04/08/1999	08/01/2011
	FD	05/01/2016	05/01/2016	05/01/2016	12/01/1999	04/01/2012
F3	AD	06/15/2008	06/15/2008	06/15/2008	08/01/1996	02/15/2002
	FD	06/01/2009	06/01/2009	06/01/2009	08/15/2000	12/22/2002
F4	AD	09/22/2006	09/22/2006	03/08/2005	06/22/1998	01/01/2002
	FD	09/15/2007	09/15/2007	11/22/2005	04/22/1999	09/01/2002

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)
4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)

Employment		Other Countries	China	El Salvador Guatemala Honduras	India	Mexico	Philippines	Vietnam
EB1	AD	C	12/01/2018	C	12/01/2018	C	C	C
	FD	C	09/01/2020	C	09/01/2020	C	C	C
EB2	AD	C	04/22/2016	C	09/22/2009	C	C	C
	FD	C	10/01/2016	C	05/15/2011	C	C	C
EB3	AD	C	10/01/2017	C	03/01/2010	C	C	C
	FD	C	06/01/2018	C	01/01/2015	C	C	C
Other Workers	AD	C	01/01/2009	C	03/01/2010	C	C	C
	FD	C	05/01/2009	C	01/01/2015	C	C	C
EB4	AD	C	C	11/01/2017	C	10/15/2018	C	C
	FD	C	C	02/01/2018	C	C	C	C
EB5	AD	C	08/15/2015	C	C	C	C	08/15/2017
	FD	C	12/15/2015	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding 

prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)    

5th: Employment Creation (Investors)

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.)