Episode 28: Premium processing, TPS extensions, PERM denials

It’s June 15, and this is your BAL Immigration Report.

• USCIS extends premium processing to additional visa categories.
• The Biden administration moves to preserve Temporary Protected Status for four nationalities.
• What an uptick in PERM denials means for employers.

“A PERM denial does not mean you cannot file another application again in the future. It doesn’t mean you’re sort of dead in the water, but administratively it layers in years potentially of additional delay, which can have a huge consequence on an employer’s business and, of course, on the person’s ability to maintain their immigration status.”

—Josiah Curtis, BAL Partner

U.S. news

USCIS expands premium processing

U.S. Citizenship and Immigration Services has expanded premium processing to certain individuals who are changing their nonimmigrant visa status. As of this week, applicants who have a pending application for a change of status to F-1, F-2, M-1, M-2, J-1 or J-2 visas may request premium processing services. Beginning June 26, the agency will accept premium processing requests filed concurrently with a change of status request for these visa classifications. USCIS is expected to continue expanding premium processing in the coming months but has yet to provide a detailed timeline.

DHS move to preserve TPS for four countries

The Department of Homeland Security moved to preserve Temporary Protected Status, or TPS, for nationals of El Salvador, Honduras, Nepal and Nicaragua. The Trump administration attempted to rescind TPS for nationals of these countries, but the Biden administration has now reversed course, extending the designations for 18 months. Eligible beneficiaries can re-register for TPS and renew their employment authorization documents. The decisions to rescind the terminations are active immediately. DHS will publish a Federal Register notice detailing the eligibility criteria, timelines and procedures

U.S. news roundup

• The Department of Labor posted updated PERM and prevailing wage processing times.
• The State Department released the July Visa Bulletin showing retrogression in some key employment-based categories.
• USCIS announced it would use Final Action Dates to determine employment-based filing eligibility.

Spotlight

Conversation with BAL Partner Josiah Curtis: an update on PERM adjudication trends.

BAL Immigration Report: Permanent labor certification, or PERM, is required for most employment-based green cards. In January, BAL Partner Josiah Curtis joined us to discuss a trend he’d identified — an uptick in PERM audits by the Department of Labor. This has complicated and slowed down the green card process for many applicants.

Forbes magazine recently reported on another trend — an increase in PERM denials. The rate of denials more than doubled, from 3% between October and December of 2021, to 6.2% in the same three-month span in 2022. The rates rose again to 8.5% in the first three months of 2023. Curtis rejoined the BAL Immigration Report this week.

Curtis: The initial or most significant consequence to an employer of a PERM denial is an impact on the time it will take to complete the process, and it’s significant. It can be a year or two years of additional government processing. When you have an employee who’s coming up on potentially a ceiling on their work authorization, that can have a huge impact both to the individual who may need to depart the U.S. and the employer who may need to plan for backfilling that role. A PERM denial does not mean you cannot file another application again in the future. It doesn’t mean you’re sort of dead in the water, but administratively it layers in years potentially of additional delay, which can have a huge consequence on an employer’s business and, of course, on the person’s ability to maintain their immigration status.

BAL: Much of the increase in late 2022 and early 2023 is attributable to denials based on how employers answered a single question on the PERM form, question H.10-B. This question asked whether “experience in an alternate occupation” would be acceptable for the job opening. After pushback from stakeholders, DOL acknowledged that it had not been consistent in assessing answers to the question. The department said it would overturn denials that were based solely on the H.10-B issue and change how it adjudicates applications going forward. This was good news for employers. And, to some extent, the problem is moot because the Department of Labor switched to a new PERM form on June 1. But Curtis says the denials are tied to a broader trend.

Curtis: The H.10-B question was a specific question on the form. And the agency, late last year into early this year, had begun to issue denials based on an idiosyncrasy in how they interpreted that question should be answered on the form. It is, in my view, connected to a broader trend at the agency where they’re tightening the belt with respect to adjudications, and we’ve seen, as you’d mentioned, a significant spike in the denial rates across the spectrum with the Department of Labor. The two things are tethered to one another in a sense in that the agency is being more restrictive and will continue to be more restrictive in how they interpret questions and answers on the form. That said, the H.10-B question specifically is resolved and put to bed, both because the form no longer exists and also because the agency has confirmed that it is no longer interpreting answers to that question the way that they were when those denials spiked.

BAL: These new form and application procedures were designed to streamline PERM; however, technical challenges and delays in the transition period should be expected.

Curtis: The metaphor I’ve always used is that folks have learned to weave around the potholes of the existing form because the prior form was not perfect, and the new form is not perfect. There are questions that are ambiguous or are going to lend themselves to different and varied interpretations. The biggest change is going to be wrestling with how we think the agency is going to interpret those new questions. They’re entirely new, as I mentioned before, framed completely differently. Sometimes they even drive at entirely different regulatory provisions. And the biggest challenge is going to be, this is a space where there’s quite a bit of interpretation on the government side. Though PERM is, of course, an exacting and detail-oriented process, the government has the flexibility to adjust the way it thinks about certain language on the form, and we haven’t yet seen any adjudications on the new form, and we won’t for months and months — the muddying of the waters, of sorts. We will of course be implementing best practices and making sure that we’re answering the form questions in a way that’s responsive to what the agency intends them to be. But we won’t know probably for a year or two how the agency is going to interpret its own new form when those adjudications begin.

BAL: As Curtis said in January, it is important for employers to prepare as much as possible and communicate with stakeholders.

Curtis: I would say planning and preparing for potential disruption absolutely is paramount, not to be too alliterative here. The way that the agency is going to interpret form, as I mentioned a moment ago, is going to result in some disruption in certain adjudications. We can be certain of that. It’s also a lot to ask of the federal government to roll out an entirely new technology across thousands and thousands of applications that it’s going to adjudicate. So the agency itself will be adjusting, and I’m sure we’ll see a lack of efficiency over the course of the next year.

And as I mentioned in in the earliest part of the discussion here, the biggest consequence of these issues is the delay in the administrative process, which can have an impact. It can result in somebody losing work authorization. It can result in somebody having other disruptions to their sponsorship here in the U.S., sometimes to the tune of a couple years. And it’s very important to start now, making sure that your stakeholders are prepared for that, so they’re not surprised a year from now if what takes six months now takes 10 months then.

Global news

Student mobility agreement

The Australian and Indian governments have signed a mobility agreement for students, graduates and academic professionals to live and work in each other’s countries. Beginning July 1, Indian nationals who graduate from higher education institutions in Australia will be eligible for post-study work visa options valid for up to eight years. Indian nationals working in certain STEM professions will also be able to apply for a new pilot program allowing them to live and work in Australia. Indian officials are expected to announce reciprocal program details in the coming weeks.

UAE ends overstay grace period

In the United Arab Emirates, the government has ended its grace period policy for foreign nationals who overstay their visitor visa in Dubai. Previously, visitors were given a 10-day grace period if they stayed past their visa’s expiration date. Now, those who overstay will be fined 50 dirhams, or about US$13. Visitor visa holders can apply for a 30-day extension through authorized travel or tourism companies to avoid the fine.

South Africa extends Zimbabwe Exemption Permits

In an update to a story we covered last week, South African authorities have extended the validity of Zimbabwe Exemption Permits through the end of 2023. Zimbabwean nationals who hold these permits can now stay in South Africa until Dec. 31. They will need to secure a different visa or leave South Africa after that date. The permits had been set to expire on June 30, but the government extended the deadline to give permit holders more time to obtain another visa or waiver. South Africa originally granted “special dispensation” in 2009 for Zimbabweans who were in the country illegally after fleeing violence and instability.

Global news roundup

• The Australian government exemptedK. nationals from labor market testing.
• Malaysia will introduce a new online platform for Employment Pass applicants.
• Mozambique introduced visa-free entry for 29 countries.

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