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Business Immigration in a Minute by Honigman LLP

December 20, 2021
  • The Department of State recently released the January 2022 Visa Bulletin.  In addition to the final action dates and dates for filing charts for employment-based immigrant visa and adjustment of status cases, it contains notes on the diversity visa category and DV-2022 results. Notably, EB-2 India final action dates will advance by nine weeks in January, whereas EB-3 India final action dates will remain unchanged. Additionally, the dates for filing in January will remain unchanged from last month. As previously discussed by the recently retired Chief of the Department of State Visa Control and Reporting Division, Charlie Oppenheim, the EB-2 India movement in the January 2022 Visa Bulletin may be indicative of the movement that we should expect to see in this category for the next several months. All first employment-based preference countries of chargeability remain current for January. For January 2022, employment-based applicants must use the dates for filing chart for adjustment of status applications.

  • The Department of Homeland Security, Department of Labor, and Department of State have issued their semi-annual regulatory agendas. The agendas reveal each agency’s rulemaking priorities and timelines for the coming months. Notably, the agendas largely focus on employment-based immigration reforms and seek to initiate some of the following proposed rules in the near future: (1) modernization of the H-1B program, (2) establishment of an improved prevailing wage level methodology for the H-1B, H-1B1, E-3, and PERM programs following the vacatur of a previous rule seeking to modify the prevailing wage level methodology, (3) filing fee adjustments, (4) creation of an optional alternative to physical examination in the Form I-9 employment eligibility verification process, (5) elimination of the B in lieu of H-1B classification, and (6) proposed rulemaking on the public charge ground of inadmissibility. The details of the proposed and final rules related to these topics are confidential and will not be released until the rules are published in the Federal Register.

  • U.S. Immigration and Customs Enforcement announced an extension of the flexibilities in rules related to Form I-9 compliance that were granted last year. Due to the continued precautions related to COVID-19, the Department of Homeland Security has extended this policy until April 30, 2022.

  • This past week, the Department of State published a temporary rule allowing consular officers to discretionarily waive the personal appearance and interview requirements for certain repeat immigrant visa applicants. Under the rule, repeat immigrant visa applicants may not need to make an in-person appearance for an interview, execution of an application, or oath if (1) the applicant’s existing immigrant visa was issued on or after August 4, 2019, (2) the applicant did not travel to the United States on the immigrant visa, and (3) the applicant is seeking and remains qualified for an immigrant visa in the same classification as the expired immigrant visa or in certain automatic category conversions pursuant to the same approved petition. Applicants who meet the criteria listed above should contact the embassy or consulate that issued their prior visa to ask about their eligibility. This temporary rule is effective from December 13, 2021 to December 13, 2023.

  • The Department of Labor published its final rule implementing the vacatur of the final rule that would have modified the prevailing wage methodology for H-1Bs and permanent labor certifications. The vacated rule was set to take effect on November 14, 2022, but was vacated by U.S. District Court for the Northern District of California on June 23, 2021. As described above, the Department of Labor is set to publish a new prevailing wage methodology proposal in March 2022, taking into account the feedback that it received from its recent request for public comment.

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