Tag: immigration updates and faqs

The U.S. Department of Labor (DOL) will solicit public input on expanding its list of Schedule A occupations eligible for streamlined immigration processing to include designated jobs in Science, Technology, Engineering, and Mathematics (STEM) fields. The action comes pursuant to the Biden Administration’s Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence, which charges federal agencies to use existing legal authority to expand the ability of highly skilled immigrants with expertise in critical areas to study, stay, and work in the U.S. by modernizing and streamlining visa criteria.

WHAT IS SCHEDULE A?

Most employment-based sponsorship for U.S. permanent resident status requires a U.S. employer to conduct a labor market test and request DOL certification that there are no qualified U.S. workers available for the offered position. Obtaining DOL labor certification entails a costly recruitment campaign, and the process currently takes at least 1.5 years to complete, often longer.   For certain occupations, described in 20 CFR § 656.5 – Schedule A, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available to fill jobs.  Sponsoring employers seeking to fill a Schedule A position may by-pass the labor market test because DOL has pre-certified the labor shortage. Employers may petition directly to U.S. Citizenship and Immigration Services (USCIS) to sponsor an employee for permanent resident status.

Current Schedule A occupations include registered nurses and physical therapists.  The Schedule A list has not been updated in more than 30 years. Updating the Schedule A list does not require Congressional action or legislation.

WHAT DO EMPLOYERS NEED TO KNOW?

DOL is expected to publish additional information seeking comments about the proposed expansion of Schedule A by next month.  U.S. employers and other interested stakeholders will then have an opportunity to comment on the proposed expansion, identifying hard-to-fill, shortage occupations that should be pre-certified. Commentors may suggest any occupation that is hard to fill, and need not limit proposals to technology or STEM positions.  The expectation is that DOL could publish a revised Schedule A list of occupations in the first half of 2024.

Once implemented, employers seeking to sponsor a foreign national for a designated Schedule A occupation will not be required to undertake an extensive recruitment campaign to test the U.S. labor market. However, employers will still be required to obtain a Prevailing Wage Determination from DOL to ensure that hiring a foreign national into the position does not adversely impact wages and working conditions for U.S. workers.  Ideally, employers will be able to more quickly staff hard-to-fill jobs. Foreign nationals employed in STEM occupations will also benefit from getting permanent resident petitions on file with USCIS more quickly.

Gibney will continue to monitor expansion of Schedule A and will provide updates when they become available.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

OVERVIEW

The Department of State released the November 2023 Visa Bulletin. All employment-based categories will hold steady in November under Final Action Dates and Dates for Filing with the exception of a small advancement for EB-2 Final Action Dates:

• USCIS will continue to accept employment-based Adjustment of Status applications based on the more advanced Dates for Filing chart in November.
• EB-2 Final Action Dates for all countries aside from China and India will advance by a week to July 15, 2022.
• Final Action Dates and Dates for Filing for all other employment-based categories will remain the same as October.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR DATES for FILING

USCIS confirmed that it will follow the Dates for Filing chart for purposes of eligibility to file an Adjustment of Status application. The Dates for Filing are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
• EB-1 China and India maintain a Dates for Filing cutoff date of August 1, 2022 and July 1, 2019, respectively.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) maintains a cut-off date of January 1, 2023.
• China: Dates for Filing hold steady at January 1, 2020.
• India:  Dates for Filing hold steady at May 15, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, and Mexico) maintains a cut-off date of February 1, 2023.
• Philippines: Dates for Filing hold steady at January 1, 2023.
• China: Dates for Filing hold steady at September 1, 2020.
• India: Dates for Filing hold steady at August 1, 2012.

Other Workers

• All categories hold steady from last month:
  • Other Workers (including El Salvador, Guatemala and Honduras and Mexico) maintain a cut-off date of December 15, 2020.
  • Philippines: May 15, 2020
  • China: June 1, 2017
  • India: August 1, 2012

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of January 1, 2017 and April 1, 2022, respectively. All other countries will remain current.
• The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is either “current” or before the published cut-off date may file an adjustment of status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As noted in the October Visa Bulletin, Final Action Dates across most employment-based visa categories have advanced. Date advancement will continue to be reviewed with an intention to keep visa issuance within quarterly limits. While further potential date advancements throughout the year may occur, actual date movements will depend on visa demand and issuance through FY 2024. With high demand across all employment-based categories, employers should consider commencing the green card process for foreign national employees earlier to avoid a potential disruption in work authorization as extensive processing delays and visa retrogression continue to persist.

For additional information, please contact your designated Gibney representative or email info@gibney.com.