1. Why are our H-1B employees from China and India and their lawyers asking for so much paperwork during the past few weeks?
I work in human resources in a medium-sized company that sponsors a number of H-1B petitions, many of them for Indians and Chinese. During the past few weeks, our department has been swamped by requests from our employees and their lawyers for documentation and paperwork so that they can file for their immigration papers. Can anyone tell me what is going on – I don’t get a lot of information from the higher ups.
Mr. Lee answers,
There is a confluence of factors both political and funding related which has moved the filing date for many old cases involving employment-based immigration tremendously forward by the Department of State, and the filing dates have been accepted by USCIS for the month of October. Many Indians and Mainland Chinese started their labor certification cases or other employment-based cases years ago, but have been stuck in a long backlog and unable to move to the adjustment of status step in their immigration because their turn has not yet come up. In the month of October, major changes that the “dates of filing” chart for China born EB-3 cases (those requiring at least a baccalaureate degree or two years of experience) moved up 11 months and the Indian EB-3 category almost 5 years. These are unheard of jumps. USCIS has the authority to accept the “dates of filing” chart, or reject it and only accept the dates from an alternate chart, the “final action dates” chart. For this month, USCIS chose to take the unusual step of accepting the “dates of filing” chart. That means natives of India who filed employment- based cases before January 1, 2015, and China-born who filed before June 1, 2018, can now advance their cases by filing adjustment of status cases by the end of the month. The October situation is quite extraordinary, and those who are benefited by it realize that it is a rare opportunity and are trying to push in their papers as soon as possible. The filing of an adjustment of status benefits them greatly and expands their ability to work, travel, and even at a later stage change employment during the time that they must wait to finalize their cases. It does not, however, accelerate their date for actually finalizing their green cards.
2. Received LCA in September, but H-1B petition not filed yet – am I in big danger because of new H-1B regulation?
Because of various problems between the company and the lawyer, my H-1B petition has not yet been filed although the labor condition application part was finished in September. Now I hear that Immigration just came up with a new rule that will make it much tougher for me to get the H-1B petition approved. My job is business analyst and I have a bachelors degree in economics.
Mr. Lee answers,
You do have one of the occupations that has become more tenuous under the October 8, 2020, DHS rule, ”Strengthening the H-1B Nonimmigrant Visa Classification Program,” which is changing the standard for the degree qualification from what is normal or usual or common to a directly related degree in a specific specialty or its equivalent. The position of a business analyst is usually regarded as one that can be fulfilled by study in a number of fields. Nevertheless, your case should not be affected by the new regulation which will only apply to petitions filed on or after its implementation date of December 7, 2020 – that includes amended petitions, petition extensions, pending petitions, and previously approved petitions, either through reopening or through a notice of intent to revoke. I assume that your company’s lawyer will be able to file your H-1B petition before December 7.
3. My H-1B petition is pending – I am worried about the new regulation that would raise my wage by a lot and what the company will think about it.
My company filed for my H-1B petition in August 2020 since I was selected for the H-1B lottery. We have not heard anything from Immigration except that the company lawyer got the receipt for the filing. I read that there is a new rule by the Department of Labor that raises the wage that I am supposed to be getting by a lot if my case is approved. I have not talked this over with my boss because I’m afraid that he will cancel my case. What am I supposed to do?
Mr. Lee answers,
The Department of Labor came out with a new rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”, which took effect on October 8, 2020, and raises the wages in all cases that use the Occupational Employment Statistics (OES) wage survey to obtain the Labor Condition Application (LCA) from DOL. The hike in wages is tremendous, for example moving the level I wage from what the 17th percentile is making to what the 45th percentile is earning. However, please note that this will have no effect on your case as it only applies to cases in which applications for LCA’s were filed on October 8, 2020, or later. Your case will be governed by the old rules.
4. My final asylum hearing date in the immigration court is coming up – can I postpone it?
I came to the US by sneaking across the border in 2017, applied for political asylum, was refused at the asylum office in Lyndhurst, New Jersey, and my case is now with the Immigration Ct. in New York. After two or three hearings, my final hearing is scheduled for November 2, 2020.
Can I get an extension by moving to another state and having my case transferred there? I do not want to have the hearing now for a number of reasons.
Mr. Lee answers,
You actually do not have to do anything at this time to have an extension for your hearing. Because of the Pandemic, unless you are detained (which does not appear to be the case with you), the New York immigration court is not hearing any cases through November 20, 2020. You should be automatically rescheduled to a date in the future.