October 30, 2020
November Visa Bulletin Published: Employment-Based Filing Dates Remain the Same.
As reported last month, the U.S. Department of State announced significant filing date advancements in its monthly Visa Bulletin for October. The Visa Bulletin determines an individual’s eligibly to submit an application for U.S. Lawful Permanent Residence. If an applicant is physically present in the U.S., the Visa Bulletin will determine their ability to apply for a green card through a process called ‘Adjustment of Status.’ Applications are filed with U.S. Citizenship & Immigration Services (USCIS).
The Department of State released its Visa Bulletin for November yesterday. There have been virtually no changes to the ‘Dates for Filing’ employment-based Adjustment of Status applications, aside from an advancement in the ‘Other Workers/China’ category. For all other categories, the filing dates announced in the October Visa Bulletin will remain the same, under the November Visa Bulletin.
There has also been some modest progression announced for November, regarding ‘Final Action Dates’ for employment-based cases. This may be significant in the future, if USCIS begins to accept Adjustment of Status filings based on ‘Final Action Dates’ instead of ‘Dates for Filing,’ as had been the agency’s regular practice until last month. This would be announced in a future Visa Bulletin release. For the month of November, though, employment-based Adjustment of Status cut-off dates remain unchanged.
Proposed Salary-Based Changes to the H-1B 'Cap' Process.
USCIS has proposed a new regulation to replace the random, computerized H-1B ‘Cap’ lottery with a new selection process, based on a candidate’s offered salary. The proposed regulation, announced on the Department of Homeland Security website this week, would allocate H-1B visa numbers based on wage levels, giving priority to candidates with higher offered salaries. As justification for the planned changes, the Department has claimed that the proposed system would “protect the economic interests of U.S. workers” and would be a “better way to allocate H-1Bs when demand exceeds supply.”
Ordinarily, it takes several months to introduce and finalize new federal regulations. However, USCIS intends to implement the new selection process in advance of the Fiscal Year 2022 H-1B lottery, which will take place in April of 2021. The new regulation will be subject to a 30-day public comment period, and is likely to face a legal challenge in federal court. The text of the proposed rule will soon be published in the Federal Register, once the comment period opens.
We will continue to monitor matters closely, and provide updates as they become available. Please contact me or another member of our Immigration Practice Team if you have any questions, or would otherwise like to discuss.