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Business Immigration in a Minute by Honigman LLP

September 20, 2021
  • The U.S. Department of State (“DOS”) recently released the October 2021 Visa Bulletin.  In addition to the final action dates and dates for filing charts for employment-based immigrant visa and adjustment of status cases, the bulletin contains notes on the estimated visa availability in various employment-based categories between now and January 2022. Notably, DOS stated that EB-3 India and China final action dates could possibly see some retrogression as early as November 2021. During his “Chats with Charlie” livestream on September 15, 2021, Charlie Oppenheim, Chief of DOS’ Visa Control and Reporting Division, indicated that he made the statement in the October Visa Bulletin about possible EB-3 retrogression to raise this as a possibility, however, he would have more facts available in October to make a determination regarding retrogression. Mr. Oppenheim stated that an EB-3 retrogression would be less dramatic if it occurred earlier in the fiscal year. All first employment-based preference countries of chargeability are current for the month of October. For October 2021, employment-based applicants must use the dates for filing chart for adjustment of status applications.

  • Following the Centers for Disease Control and Prevention announcement that U.S. government agencies will require COVID-19 vaccinations for applicants applying for lawful permanent residence and refugee status beginning on October 1, 2021, U.S. Citizenship and Immigration Services (“USCIS”) has released updated policy guidance that requires applicants subject to a medical examination to complete an approved COVID-19 vaccine series. Applicants must provide evidence of vaccination to the civil surgeon before examination.

  • Last Wednesday, the U.S. District Court for the Northern District of California vacated the Trump-era H-1B wage-based cap selection regulation that sought to replace the current H-1B cap lottery system and was set to go into effect on December 31, 2021. The court vacated the rule on the grounds that the then-Acting Homeland Security Secretary Chad Wolf was not lawfully serving in his role at the time the regulation was promulgated. Unless the decision is overturned on appeal, the current H-1B cap lottery will likely be in place for the FY2023 cap season.

  • USCIS provided a fact sheet on Form I-9 and E-Verify guidance to remind employers about compliance policies in the wake of recent natural disasters where employees’ documents may be lost or damaged. The fact sheet states that all laws, rules, and regulations related to Form I-9 compliance and E-Verify remain in effect for areas affected by natural disasters, however, the fact sheet provides guidance to employers on how to complete the Form I-9 and E-Verify processes in the event of lost or damaged documents.

  • Last week, DOS announced that U.S. consular officers now may, in their discretion, waive in-person interviews for certain F, M, and academic J visa applicants through the end of 2021. For details on country eligibility and procedures for the interview waivers, please visit the relevant embassy or consulate website.


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