H-1B registration opens.

Canada imposes a visa requirement on some travelers from Mexico.

And a new study from the Cato Institute shows that just 3% of immigrant applicants for green cards will receive them in 2024.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

 

PERM: Labor Certification Basics

What is a PERM Labor Certification and when is it required?

A Labor Certification is a document issued by the U.S. Department of Labor (DOL) that is required for many immigrant visa preference categories. The filing of a Labor Certification application with DOL by the sponsoring employer is an early step in the multi-step process for a foreign national to obtain permanent residence (a “Green Card”). The system that DOL uses to process employers’ applications for Labor Certifications is called Program Electronic Review Management, also known as “PERM.”

As part of the Labor Certification process, the employer is required to test the labor market and demonstrate that there are no U.S. workers in the geographic area of employment who are able, willing, qualified, and available to perform the job in question, and that the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

An employer sponsoring a foreign national for the following immigrant visa preference categories must obtain an approved Labor Certification from DOL before a Form I-140 (Immigrant Petition for Alien Workers) can be filed with U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign national:

• EB-2 Second Preference Category — This category includes individuals with Advanced Degrees and Exceptional Ability. Individuals applying for EB-2 Second Preference based on a National Interest Waiver are not required to obtain a Labor Certification.
• EB-3 Third Preference Category — This category includes individuals who are Skilled Workers, Professionals, and Unskilled Workers (Other Workers).

To qualify for a Labor Certification, the employer must demonstrate:

• There is a bona fide, full-time permanent job opening that is available to U.S. workers.
• The job requirements adhere to what is customarily required for the occupation in the United States and are not tailored to the foreign worker’s qualifications. The job opportunity must be described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
• The employer will pay at least the prevailing wage for the occupation in the area of intended employment.

What is the process to obtain a PERM Labor Certification?

Obtaining a Labor Certification is a multi-month process that requires a number of different steps, including:

Prepare a Job Description or Job Summary — The employer must identify the specific duties and the minimum education, skills, and experience required for the job opportunity.

Obtain a Prevailing Wage Determination — The employer must request and obtain a prevailing wage determination from DOL. This requires the employer to file a Form ETA 9141 (Application for Prevailing Wage Determination) that describes the job opportunity. DOL assesses this information and issues a determination of the prevailing wage for the occupation in the intended area of employment.

The employer must agree to pay the foreign national at least the prevailing wage when the foreign national receives lawful permanent residence (a “Green Card”) based on the Labor Certification.

Recruitment — The employer must conduct and document recruitment efforts for the job opportunity in order to demonstrate that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment. This involves a number of different forms of recruitment:

• Mandatory Recruitment Steps — These recruitment steps are required for all Labor Certification applications:
  • Job Order — Placement of a job order for a period of 30 days with the State Workforce Agency (SWA) serving the area of intended employment.
  • Advertisements in Newspaper or Professional Journals — Placement of a job opening advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the type of workers likely to apply for the opportunity. Under certain circumstances, employers may use a professional journal for one of the Sundays instead of a newspaper of general circulation.
• Additional Recruitment Steps for Professional Occupations — If the job opportunity is for a professional occupation, the employer must also complete three additional recruitment steps from the list below:
  • Job Fairs — Recruitment at a job fair.
  • Employer’s Website — Recruitment on the employer’s own website.
  • Job Search Website — Recruitment on a job search website other than the employer’s own website.
  • On-Campus Recruiting — On-campus recruitment through a college or university.
  • Trade or Professional Organizations — Recruitment through newsletters or trade journals for the occupation.
  • Private Employment Firms — Recruitment through a private employment firm or job placement agency.
  • Employee Referral Program — Recruitment through an employee referral program with incentives.
  • Campus Placement Offices — Recruitment through a university’s or college’s job placement office.
  • Local and Ethnic Newspapers — Recruitment through advertisements in a local or ethnic newspaper.
  • Radio and Television Advertisements — Recruitment by radio or television advertisement.

The employer must document that it received job applications through these recruitment methods, that it reviewed the applications and contacted applicants that appeared qualified for the job opportunity, and that it determined each applicant was not able, willing, qualified, or available for the job opportunity. The employer must retain this documentation for five years from the date of filing the Labor Certification application with DOL.

Application for Labor Certification (PERM) — The Labor Certification application is submitted to DOL on the online Form ETA 9098. The form requires the employer to attest to the duties and minimum qualifications for the job opportunity, the recruitment steps it undertook, and that it did not identify any able, willing, qualified, and available U.S. workers for the position during recruitment.

Potential Audit — While supporting documentation is not submitted to DOL at the time of filing the Labor Certification application, DOL has the authority to conduct an audit on a pending application. If DOL initiates an audit, the employer must submit documentation demonstrating it complied with all applicable regulations and policies.

Labor Certification Decision — DOL will notify the employer when it approves or denies the Labor Certification. An approved Labor Certification allows the employer to file a Form I-140 (Immigrant Petition for Alien Worker) with USCIS on behalf of the foreign national, which will classify the foreign national for an immigrant visa preference category. The Form I-140 petition must be filed with USCIS within 180 days of the Labor Certification approval.

For more information regarding the PERM process, check out BAL’s explainer video that describes the PERM application process, including required information/documentation, case preparation, filing with the government, and approval.

What is the timeline for obtaining a PERM Labor Certification?

The timeline for obtaining an approved Labor Certification depends on a number of factors, including:

• Timeline for Recruitment — For professional occupations, the mandatory job order with the State Workforce Agency must be posted for at least 30 days. In addition, only one of the three additional recruitment steps can take place solely during the 30-day period before filing the Application for Labor Certification.
• Timeline for Filing the Application for Labor Certification — The Labor Certification application must be filed with DOL within the 180 days from the time the recruitment began.
• DOL’s Processing Times — DOL generally processes prevailing wage determination requests and Labor Certification applications in the order it receives them. The processing time may vary depending on the number of requests and applications DOL has pending at any given time. Current processing times for prevailing wage determination requests and pending Labor Certification applications can be viewed on DOL’s website.
• Whether DOL Conducts an Audit — If DOL selects the Labor Certification application for audit, it will request additional documentation to demonstrate that the employer complied with all applicable requirements. This significantly delays the Labor Certification processing time.

Click here to access BAL’s PERM Application Process Video for what to expect during your PERM process.

IMMIGRANT PREFERENCE CATEGORIES

What is the EB-1 First Preference category?

EB-1 or First Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-1 First Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are three types of foreign nationals who may qualify for the EB-1 category:

• Individuals of Extraordinary Ability (EB-1A) — This includes those who have sustained national or international acclaim in the sciences, arts, education, business, or athletics.
• Outstanding Professors and Researchers (EB-1B) — This includes those who have received recognition for outstanding achievements in a particular academic field.
• Multinational Managers or Executives (EB-1C) — This includes those who have been employed as a manager or executive for a firm or company outside the U.S. and will be employed as a manager or executive for a related employer in the U.S.

What is the EB-2 Second Preference category?

The EB-2 or Second Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-2 Second Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

Foreign nationals may qualify for the EB-2 Second Preference category on the basis of their:

• Advanced Degree — This includes foreign nationals who possess at least an advanced degree (a master’s degree or higher); or
• Exceptional Ability — This includes foreign nationals with exceptional ability in the sciences, arts, or business.

This category typically requires a job offer from an employer and a PERM Labor Certification from the U.S. Department of Labor (DOL), but this requirement can be waived for foreign nationals who qualify for a National Interest Waiver (NIW).

What are the requirements for the EB-2 NIW category?

The EB-2 NIW category includes foreign nationals who:

• Hold an advanced degree or claim exceptional ability in the sciences, arts, or business; and
• Qualify for an exemption of the requirement of a job offer, and thus a PERM Labor Certification, on the basis of the U.S. national interest.

This category allows self-sponsorship. An employer may file Form I-140 on behalf of the foreign national, but a foreign national may also file Form I-140 on their own behalf as a “self-petitioner” without an offer of employment from a U.S. employer or a PERM Labor Certification from the DOL.

The EB-2 NIW is a highly specialized Green Card category for foreign nationals who can show that their work in their field is of “national interest” to the U.S.

In addition to demonstrating that the foreign national is a professional holding an advanced degree or of exceptional ability in the sciences, the arts, or business, to receive the EB-2 NIW approval, the foreign national must demonstrate that they meet the following three criteria:

• The employee’s proposed endeavor has both substantial merit and national importance. 
• The employee is well-positioned to advance the proposed endeavor.
• On balance, it would be beneficial to the U.S. to waive the requirements of a job offer and thus of a PERM Labor Certification for the employee. 

What is the EB-3 Third Preference category?

EB-3 or Third Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-3 Third Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are three types of circumstances that may qualify for the EB-3 Third Preference category:

• Skilled Workers — This includes foreign nationals who will be employed in a job that requires at least two years of training or work experience and is not of a temporary or seasonal nature.
• Professionals — This includes foreign nationals who will be employed in a job that requires at least a U.S. bachelor’s degree or foreign equivalent, and who are members of a “profession.”
• Unskilled Workers (Other Workers) — This includes foreign nationals who will be employed in a job that involves unskilled labor requiring less than two years of training or work experience and is not of a temporary or seasonal nature.

Click here for more info on upgrading or downgrading between EB-2 and EB-3 categories.

What is the EB-4 Fourth Preference category?

EB-4 or Fourth Preference category is an employment-based immigrant classification for “special immigrants.” Foreign nationals who qualify for the EB-4 Fourth Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are a range of “special immigrants” who may qualify for the EB-4 Fourth Preference category:

• Religious workers;
• Special immigrant juveniles;
• Broadcasters;
• G-4 International Organization or NATO-6 employees and family members;
• International employees of the U.S. Government abroad;
• Armed forces members;
• Panama Canal Zone employees;
• Certain physicians;
• Afghan and Iraqi translators; and
• Afghan and Iraqi nationals who have provided faith service in support of U.S. Operations.

What is the EB-5 Fifth Preference category?

EB-5 or Fifth Preference category is an employment-based immigrant classification for investors. Foreign nationals who qualify for the EB-5 Fifth Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are two types of requirements to qualify for the EB-5 Fifth Preference category:

• Make the necessary investment of capital in a commercial enterprise in the U.S.; and
• Plan to create or preserve the required full-time jobs for qualified U.S. workers.

Green Cards: Adjustment of Status & Consular Processing Basics

What is the difference between adjustment of status and consular processing?

After a foreign national is the beneficiary of an approved immigrant visa petition and an immigrant visa number is immediately available, there are two ways to apply for lawful permanent resident status (also known as a “Green Card”).

For example, an H-1B worker in the U.S. may pursue adjustment of status to a lawful permanent resident after being sponsored for an immigrant visa by his or her employer. The H-1B worker would file an application requesting that U.S. Citizenship and Immigration Services (USCIS) adjust his or her status to that of a lawful permanent resident.

Consular processing is the process of applying for an immigrant visa outside the U.S. in order to be admitted as a lawful permanent resident. Consular processing requires the applicant to depart the U.S. and attend an interview with the U.S. Department of State Embassy or Consulate outside the U.S. in order to obtain an immigrant visa authorizing admission to the U.S. as a lawful permanent resident.

For example, the same H-1B worker in the U.S. may pursue lawful permanent residence through consular processing. However, in order to return to the U.S. as a lawful permanent resident, the H-1B worker would file an immigrant visa application with the U.S. Department of State, attend a visa interview at a U.S. Consulate or Embassy outside the U.S., obtain an immigrant visa, and return to the U.S. to be admitted as a lawful permanent resident.

What is the process for adjustment of status?

An application for adjustment of status is submitted to USCIS on a Form I-485 (Application to Register Permanent Residence or Adjust Status). In general, foreign nationals may not apply for adjustment of status until a visa number is available for the specific immigrant visa category. The U.S. Department of State’s monthly Visa Bulletin determines when foreign nationals are eligible to file a Form I-485 application with USCIS based on their priority date.

After filing the Form I-485 application, applicants must attend a biometrics appointment at a USCIS Application Support Center to provide fingerprints, a photograph, and signature. USCIS will review the Form I-485 application and notify the applicant if additional documentation and/or an interview is required. After the additional documentation has been submitted and/or the interview has occurred, USCIS will determine whether to grant or deny the application. If USCIS grants the application, it will mail an approval notice to the foreign national and adjust the status of the individual to a lawful permanent resident. USCIS will mail the Green Card at a later date.

Check out BAL’s explainer video that describes the process of completing the USCIS interview stage of the Adjustment of Status application, including required information/documentation, questions that may be asked, and the events following the interview appointment.

What is the process for consular processing?

Consular processing requires the foreign national to wait for notification from the U.S. Department of State’s National Visa Center (NVC) that he or she is eligible to submit an immigrant visa application. When NVC determines that an immigrant visa number is about to become available, it will notify the beneficiary to submit the required fees and supporting documentation for the immigrant visa application. When the foreign national’s priority date is current according to the most recent Visa Bulletin, the U.S. Consulate or Embassy will contact the foreign national to schedule an immigrant visa interview.

After the foreign national attends the immigrant visa interview, the U.S. Department of State will determine whether to grant or deny the application. If the U.S. Department of State grants the application, it will provide the foreign national with a sealed visa packet that they must provide to U.S. Customs and Border Protection (CBP) at a U.S. port of entry. CBP will review the documentation contained in the visa packet and determine whether to admit the foreign national to the U.S. as a lawful permanent resident. If the individual is admitted to the U.S. as a lawful permanent resident, he or she will receive a Green Card in the mail within a few weeks of entering the country.

BAL can help!

Looking for expert immigration assistance to create and manage a customized and strategic immigration program for your company? Contact us now.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

After two years of travel restrictions, consulate closures and reduced operating capacity, the U.S. immigration system faces a tough climb to resume full functionality. Although U.S. Citizenship and Immigration Services (USCIS) recently announced that in anticipation of an “exceptionally high” number of employment-based visas available this fiscal year it is committed to “attempting to use all these visa numbers,” green card processing delays continue to dismay employers and foreign nationals alike. Because many unused green cards go to waste at the end of the fiscal year, without further action from USCIS, these delays will unnecessarily deprive tens of thousands of eligible immigrants of permanent legal resident status this year. With record numbers of employment based green card applications waiting in line, any wasted green card causes wait times to increase even further.

To its credit, USCIS has already taken some practical steps to improve green card processing, including waiving interviews for some employment-based green card applicants. The agency also released guidance encouraging employers to transfer eligible applicants to the first- and second-preference employment-based categories where more numbers are available.

However, given the practical realities of processing delays, budgetary shortfalls and the high number of unused green cards last year, combined with ongoing pandemic uncertainty, companies and foreign national employees remain concerned that the government will again fail to issue the full number of green cards by the end of the current fiscal year on September 30, 2022.

As immigration attorneys who formerly served at USCIS, we recognize the operational challenges to efficient green card processing, the impact of green card delays on U.S. businesses and their employees who are waiting in long queues, and the need for further changes. To improve USCIS’s chance to fully utilize available visa numbers, we suggest four actions USCIS should take.

First, USCIS should designate “tiger teams” at each Service Center that would tackle the required number of cases to reach the cap and provide proper supervisory review to ensure the integrity of each case. Originally utilized by NASA to avert disaster on the Apollo 13 mission, tiger teams consist of experienced specialists selected for their experience, energy, and imagination, who will focus on addressing institutional problems and streamlining processes to achieve their goals. USCIS has used tiger teams in the past and should reinstate this approach to create dedicated teams that will relentlessly focus on green card processing hindrances and improve performance.

Second, USCIS should reduce the volume of cases sent to its Field Offices for interview by setting up an effective waiver process for cases posing no eligibility or security concerns. Where USCIS does require interviews, it should conduct them via video whenever appropriate so that any Field Office with capacity can adjudicate the case. This would help avoid scheduling challenges associated with arranging in-person interviews at Field Offices around the country and prevent delays.

Third, the agency should extend the validity of the required medical exam for green card applicants. Last summer, USCIS temporarily extended the validity from two years to four years, but that policy expired Oct. 1, 2021. Re-implementing the longer validity period for medical exams would help alleviate additional delays by reducing the frequency of applicants having to renew their medical examinations.

Finally, USCIS should streamline its handling of case files, both by consolidating related case files early in processing and by increasing digitization efforts. An audit by the DHS Office of the Inspector General identified manual processing as a primary obstacle to USCIS processing speed and recommended USCIS fully digitize its workload. USCIS must accelerate its progress in digitization, electronic filings, and electronic adjudications to improve its processing times across the agency.

USCIS can implement some of these suggestions quickly, while others—such as full digitization—will take years to realize. However, each investment USCIS makes to improve processing speed and reduce green card backlogs will benefit the agency itself, foreign nationals, their employers, and the U.S. economy. One report estimates that wasted green cards reduce U.S. GDP by billions each year. Enabling efficient pursuit of the American dream by improved green card processes not only benefits immigrants, but also aids business productivity, inspires innovation, and provides a needed boost to U.S. economic recovery.

Kelli Duehning is a Partner with Berry Appleman & Leiden LLP. She advises clients on immigration compliance and program strategy. Kelli joined BAL after a 17-year career with USCIS and INS where she headed the agency’s legal strategies in the western U.S.

Steven Plastrik is a Senior Associate with BAL’s Government Strategies team. He advises clients on immigration compliance and H-1B regulations and policies. Steve previously served as Associate Counsel at USCIS’s Vermont Service Center where he advised officers on employment-based nonimmigrant eligibility.

This article was originally published in Law360 on Mar. 28, 2022.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.

DALLAS, March 3, 2022 /PRNewswire/ — Immigration technology provider Dunasi, in partnership with leading immigration firm BAL, has released a groundbreaking white paper, detailing their analysis of U.S. Citizenship and Immigration Services (USCIS) processing times. Leveraging 40 years of immigration experience and aggregated data from over 1.5 million cases, BAL compared its data to USCIS data to determine how accurate USCIS processing estimates are and to identify trends in processing timelines. 2021 Processing Time Trends – Dunasi (dunasitech.com)

“With the coronavirus pandemic compounding immigration delays, our clients need a trusted source to give them an accurate answer about their case processing time,” said Chanille Juneau, Chief Technology Officer at BAL. “We know BAL’s projections tend to be more accurate than USCIS estimates, so we did a deep dive into the data to help immigration applicants understand what to expect for each case type.”

The white paper analyzes the accuracy of USCIS predictions and recent processing trends, answering frequently asked questions such as: “How do USCIS processing time predictions compare with actual processing times?” and “Which application types are most delayed?”

Along with pinpointing the case types and service centers experiencing the lengthiest processing delays, the paper evaluates the role of recent immigration developments on processing times, such as the DHS Office of the Inspector General’s report criticizing USCIS’s manual processing system.

After identifying some concerning USCIS trends, the paper looks at USCIS plans to modernize its processes and speed case resolution. Drawing on BAL’s legal expertise, the paper also offers practical strategies for foreign nationals to improve their case processing times.

“We’re proud to lead the industry in innovative immigration technology, and we feel an obligation to use our wealth of tech expertise to benefit people around the world,” said BAL Managing Partner Jeremy Fudge. “That’s exactly what we’ve done in this report; Chanille and her team have discovered useful insights, identifying USCIS trends and discrepancies, to give foreign nationals more confidence in their immigration journeys.”

About Berry Appleman & Leiden LLP (BAL)
BAL, the world’s leading corporate immigration law firm, ranks #1 on the Diversity Scorecard by The American Lawyer (2020 and 2021), #1 on Law360’s Diversity Snapshot (2020 and 2021), and the #1 Law Firm for Women according to the National Law Journal (2019, 2020 and 2021). BAL’s Cobalt® digital immigration services platform won the 2020 CODiE Award for Best Legal Tech Product, the prestigious CIO100 award for Innovative Use of Intelligent Automation in Immigration Services, and Legalweek‘s Most Innovative Law Firm Operations Team of 2021. BAL is singularly focused on meeting the immigration challenges of corporate clients around the world in ways that make immigration more strategic and enable clients to be more successful. Established in 1980, BAL has consistently provided immigration expertise, top-notch information security and leading technology innovation. The firm entered into a strategic alliance with Deloitte UK to create the world’s first global immigration service delivery model. BAL and its leaders are highly ranked in every major legal publication, including Best Lawyers^®, Chambers and Partners, The Legal 500, and Who’s Who Legal. See website for details: https://www.bal.com.

SOURCE Berry Appleman & Leiden LLP

Media Contact:
Emily Albrecht
Senior Director — Marketing & Communications
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The government recently announced rapid progression of green card queues beginning Oct. 1, when the fiscal year began and quotas reset on green cards, allowing thousands more employment-based immigrants to be eligible to file their green card applications this month.

While this is great news for employees who have languished in the green card backlog for years, employers and employees should prepare for anticipated delays in processing that may complicate the green card path during the wait.

The COVID-19 situation has created some unexpected trends in the green card process in recent months. Since May, the State Department’s Visa Bulletin has shown rapid advancement of the queues for many employment-based categories, in part because so few visas are being issued due to U.S. consulate closures and multiple travel bans. With unused visas carrying over to the new fiscal year, advancements in October are even larger for purposes of green card filing eligibility. For example, Indian nationals in the employment-based third preference category, who typically wait a decade or more for a green card, saw their filing eligibility dates advance by five years. This tremendous progression in green card availability gives hope to many applicants who began the process years ago.

But will hopes for a quick result be dashed by processing delays? The flip side to the green card windfall is that lagging USCIS processing times have created additional challenges and risks, as the agency struggles with budget issues. Although USCIS scrapped plans to furlough 13,000 employees, it specifically warned of longer green card adjudication times. Adjudication delays can carry serious consequences for employers and employees, who must maintain their immigration status during the wait.

Even after an approval, successful applicants would normally receive their physical green card within a few months. But in July, the USCIS Ombudsman’s office announced that the agency faces reduced capacity to print green cards. Despite litigation, significant concerns remain that delays in green card issuance will prevent those who have finally achieved lawful permanent resident status from demonstrating proof of this approval, potentially inhibiting their ability to work or travel internationally.

In addition to the personal toll on employees, processing delays create uncertainty and the risk that their work authorization may lapse. Many green card applicants who hold a valid work visa may be ineligible to file for extensions in certain nonimmigrant categories like TN or E, or they may have reached maximum time limits. These employees may face heightened scrutiny and higher likelihood of denial for filing repeated extensions in common work-visa categories. There is also the risk that during lengthy delays, priority dates may retrogress again, requiring that the employee wait even longer for a visa to be available before USCIS adjudicates the case. Moreover, until they get their green cards, many temporary work-visa holders remain subject to the various travel bans and are effectively unable to travel internationally.

This unique time is a reminder to employees and their employers that maintaining valid immigration status, rather than relying on the quick issuance of a green card, is a critical compliance measure. While green card applicants should be encouraged by the Visa Bulletin progression since the COVID crisis began, employers and employees should be aware that obtaining the approval has become an additional hurdle, and they should explore options and strategies for extending employment authorization if their green card is delayed.

John Hamill is a Senior Associate in the New York office of Berry Appleman & Leiden LLP.

This article was originally published in the California Business Journal.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.

Employees in the green card process are seeing additional flexibility in processing as the COVID-19 national emergency continues to complicate the normal steps, and the government appears to be relaxing certain requirements.

All U.S. Citizenship and Immigration Services (USCIS) offices have been closed to the public since March 18 and are not scheduled to reopen until at least May 4, creating delays for applicants needing to attend biometrics appointments and green card interviews.

However, in recent days the agency announced flexible rules on biometrics and appears to be waiving green card interviews in some cases where interviews have been canceled because of the office closures. On March 30, USCIS announced that it will process certain requests to extend employment authorization documents without a biometrics appointment by using the applicant’s previously submitted biometrics. This temporary measure, in place for the duration of the office closures, will mitigate delays and help prevent lapses in employment authorization.

Though the agency has not announced whether it will relax the interview requirement, some green card applicants whose appointments were canceled because of the COVID-19 office closures have seen their case status updated to indicate their adjustment of status application has been approved and have received their green cards in the mail shortly thereafter.

Additionally, green card applicants who file their application without the medical exam form or with an expired medical exam form normally receive a courtesy notice indicating that they should bring their medical form to the USCIS interview. More recently, however, USCIS has been issuing Requests for Evidence instructing green card applicants to mail the medical form to USCIS directly—another signal that the agency may be adopting a policy of waiving green card interviews for the time being for some applicants.

For employees in earlier stages of the green card process, the Labor Department is also taking temporary steps to ease the PERM labor certification process. On March 25 the department began issuing labor certifications and final determinations via email and will continue to do so at least through June 30. However, applicants and employers must still sign the labor certification with an original wet signature before filing the I-140 petition with USCIS. Unlike USCIS, which is accepting electronically reproduced original signatures on USCIS forms for the duration of the national emergency, the Labor Department has yet to authorize submission of photocopies of original wet signatures on labor certifications.

What should employers and employment-based immigrants expect from these agencies in the coming weeks? DHS Acting Secretary Chad Wolf indicated this week that USCIS is considering additional options to give flexibility to petitioners and applicants, but BAL anticipates that the agency will take a piecemeal approach rather than make wholesale changes (such as automatic extensions of status).

The Labor Department is likely to release guidance in the coming days that should clarify additional procedures during the national emergency and provide greater flexibility in requirements and timelines for employees in the green card process.

Heather Oh is a Senior Associate in the New York City office of Berry Appleman & Leiden LLP.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.

Your employee’s visa priority date has become current and she has completed her medical exam, background check, fingerprints, and a visa interview. More than a year passes, and she still has not received her green card.

What is the hold up? The most likely reason is visa bulletin retrogression. Because of annual green card quotas and limits on how many visas any one country may use, the State Department regulates how many immigrant visas the government issues each month by publishing “cutoff dates” in the visa bulletin. Applicants only move through the queues if their priority date (filing date of their immigrant petition) falls before the cutoff date for their category. By advancing the cutoff dates, the government opens the door to more filings and allows more immigrant visas to be issued that month. Each employment-based category and nationality has its own queue and cutoff date.

Occasionally, the government needs to dial back the number of visas it is issuing each month to ensure that it does not exceed the annual quotas. The cutoff dates then move backward—a process called “retrogression”—and the government effectively reduces the number of green cards that will be approved that month.

For employees, this means the green card line does not move forward in a consistent manner but will actually lurch forward and backward over the course of several years. Furthermore, an employee whose priority date becomes current may only have a short time to file a green card application because the priority date for his or her category may retrogress the next month.

Sometimes the cutoff dates can retrogress for months. During periods of retrogression, employers may need to extend visas (such as H-1Bs or L-1s), green card-related employment authorization and travel permission documents for employees.

Visa retrogression frequently occurs toward the end of the government fiscal year (which ends on Sept. 30), but then the dates will jump forward beginning Oct. 1 when green card quotas are reset for the new fiscal year.

Visa bulletin movement has practical implications for employee mobility, job portability and business planning. Employers are encouraged to keep pace with changing green card wait times to better prepare for bends in the road—both when retrogression creates lengthy delays, and when rapid advancement requires quick action.

Mark T. Yelich is a Senior Associate in the McLean, Va. office of Berry Appleman & Leiden LLP.

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