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Key Takeaways from AILA DOS Liaison Committee Meeting with the National Visa Center (February 2021)

Background – After the USCIS approves an Immigrant visa petition for applicants located outside of the United States, the case is sent to the National Visa Center (NVC) for processing. Family preference cases and employment-based immigration categories have numerical limits each year, so waiting times are normally long. If your priority date is current, NVC will begin Consular Processing. If your priority date is not current, you must wait for it to become current before NVC will contact you to initiate Consular processing.

AILA’s DOS Liaison Committee has provided their key takeaways from a February 2021 meeting with the NVC. They discussed problems and delays at the NVC which have been mostly caused by the COVID-19 pandemic.

Even with many states easing their COVID-19 restrictions, the USCIS would like to remind visitors that their visitor policy for all their facilities has not changed! They would like you to review their, “USCIS Visitor Policy” first before your visit. They remind all visitors ages 2 and above must still wear a mask within the facilities.

For complete details, please review USCIS News Alert, “Update on USCIS Visitor Policy

Source of Information:

On Thursday, March 18, 2021, the Department of Homeland Security announced that they were extending and re-designating Temporary Protected Status (TPS) for the country of Syria for 18 months, from March 31, 2021 until September 30, 2022. This designation of TPS is based upon ongoing armed conflict and extraordinary conditions in Syria making return un-safe.

For further details please review the USCIS News Release, “Registration period opens for Temporary Protected Status (TPS) for Syria“.

Background:

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Systems Analyst.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because he believed it violated PERM regulation 20 CFR 656.17(f)(4). The CO denied certification because “the newspaper advertisement failed to list the correct geographical area of employment with enough specificity to apprise applicants of any travel requirements.” He pointed out the physical area of employment contained in the employer’s job ad in the San Francisco Chronicle as well as hotjobs.yahoo.com does not match the one listed on the ETA Form. The ad lists San Francisco, while Fremont is recorded on the ETA Form. The CO stated these two cities are located in different “Metropolitan Statistical Areas” (MSA).

The Employer filed an appeal to BALCA. They declared that the CO made an error in thinking Fremont and San Francisco were in different MSA’s. The Employer argued that the “advertisements complied with PERM requirements and DOL guidelines for roaming positions.” As evidence, the Employer requested BALCA to take administrative notice of a printout from the Census Bureau’s website which lists the MSA’s, among other evidence. In addition, they wanted the Board to review a “County to County” commuting chart from the San Francisco Bay area. The Employer explained that Fremont is the company’s headquarters but the locations of the job are yet unknown.

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Question #1 – Marriage-Based Green Card

Can I apply for a spousal visa, if I am getting married to a green card holder & am currently in H-1B visa status?

The Department of State has released its latest Visa Bulletin.

Click the link to view the April 2021 Visa Bulletin

The monthly Visa Bulletin has changed. The bulletin now summarizes the availability of immigrant numbers during the reported month for: “Application Final Action Dates” (consistent with prior Visa Bulletins) and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center using Consular Processing (outside of the US) or file on their own with USCIS Form I-485 (within the US).

On Friday, February 5th, USCIS announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will open Tuesday, March 9, 2021 at noon (Eastern) on March 9 and will stay open until Thursday, March 25, 2021 at noon (Eastern). This is the period that prospective petitioners and representatives will be able to fill out information and complete registration for petitioners.

*Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. *USCIS

For complete details, please review USCIS News Alert, “FY 2022 H-1B Cap Initial Registration Period Opens on March 9”.

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, March 19, 2021. Act now and submit your questions!

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Operating Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application because the Employer had placed their State Workforce Agency (SWA) job order more than 180 days prior to the filing of their ETA Form 9089.

The Employer sent a reconsideration request to the CO arguing that “the 180 day period should be calculated based on the end date of the SWA, rather than the date it commenced.” To interpret the regulations otherwise would penalize employers who wanted to run their SWA’s for longer than 180 days. The CO did reconsider but afterwards, he confirmed the denial. Not happy with the outcome, the Employer appealed the decision to BALCA and restated its argument.

On Monday, March 8, 2021, Secretary of Homeland Security, Alejandro Mayorkas announced that he has designating Temporary Protected Status (TPS) for the country of Venezuela for 18 months, from now until September 2022. *This new designation of TPS for Venezuela enables Venezuelan nationals (and individuals without nationality who last resided in Venezuela) currently residing in the United States to file initial applications for TPS, so long as they meet eligibility requirements. *USCIS

For further details please review the USCIS News Release, “Secretary Mayorkas Designates Venezuela for Temporary Protected Status for 18 Months“.

Background:

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