Employment-Based Immigration Updates: The October Visa Bulletin and Public Charge Rule

October Visa Bulletin Released

On September 24, 2020, the U.S. Department of State (DOS) issued the highly anticipated October Visa Bulletin. October 1, 2020, marks the beginning of the U.S. government’s new fiscal year. Each year, there is a fixed number of immigrant visas available for employment-based and family-based categories. When the new fiscal year starts on October 1, a new supply of immigrant visas becomes available. Any unused family-based numbers from the prior fiscal year can be added to the employment-based visa allocations (and vice versa). This past year, family-based numbers were exceptionally low. The pandemic constrained consular operations and Presidential Proclamation 10014 suspended the issuance of immigrant visas, with limited exceptions. The DOS announced that it anticipates the FY 2021 employment-based visa numbers will hit an all-time high of 261,500.

USCIS Will Follow October ‘Dates of Filing’ Chart

For October, U.S. Citizenship and Immigration Services (USCIS) confirmed that it will accept Forms I-485, Applications to Register Permanent Residence or Adjust Status, based on the “Dates for Filing” chart. The “Dates for Filing” chart marks significant advancements in most employment-based categories. Many individuals with approved I-140 petitions will be able to submit their Form I-485 applications in October, even though their applications may not be adjudicated for several years – when their priority date becomes current under the “Final Action Dates” chart. While their Form I-485 applications are pending, applicants are able to obtain additional immigration benefits, such as employment authorization and advance parole travel authorization, much sooner in the overall permanent residence process than previously could be obtained.

Notable advancements in the employment-based categories include the following:

• The EB-1 category is current for all countries except India and China. EB-1 India and China cutoff dates advance to September 1, 2020.
• The EB-2 and EB-3 categories are current for all countries except India and China.
• There is significant movement for EB-3 India, as the cutoff date in the "Dates for Filing" chart advances by five years.
• The EB-3 India cutoff date (January 1, 2015) jumps ahead of EB-2 India (May 15, 2011).

Advancements in many employment-based categories are expected to continue through January 2021. Because of the advancement in the EB-3 India category in October, some EB-2 India applicants may decide to “downgrade” to EB-3 to benefit from the earlier priority date. EB-2 India applicants must have their employer file a new I-140 petition in the EB-3 category, which may be filed concurrently with their Form I-485 application. This presents an opportunity for these individuals to obtain interim benefits and employment flexibility after the Form I-485 application has been pending for at least six months. Ultimately, we expect EB-2 India numbers to advance ahead of EB-3. Employers considering the “downgrade” strategy for their foreign national workers should consult with their immigration counsel.

Public Charge Rule Back in Effect – And Form I-944 Required Beginning October 13, 2020

The U.S. Department of Homeland Security’s (DHS) public charge rule, which went into effect in February 2020, changed the standard by which USCIS would determine whether an individual is “likely at any time to become a public charge” and therefore inadmissible to the United States as a lawful permanent resident. To implement and evaluate applicants against this standard, USCIS created Form I-944, Declaration of Self-Sufficiency. Form I-944 is quite extensive, requiring that applicants provide substantial information and supporting documentation regarding their age, health insurance, family status, assets, resources, financial status, education and English literacy, among other skills.

There has been litigation over the enforcement of the public charge rule in light of the pandemic. On July 29, 2020, the U.S. District Court for the Southern District of New York enjoined the DHS and DOS from “enforcing, applying, implementing, or treating as effective” DHS’ October 2019 interim final rule and accompanying Foreign Affairs Manual guidance related to the public charge ground of visa ineligibility.

Later, on September 11, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows DHS to resume implementing the Public Charge Ground of Inadmissibility final rule nationwide. The decision stays the July 29, 2020, injunction issued during the COVID-19 pandemic that prevented DHS from enforcing the public charge final rule during the national health emergency.

In practical terms, this means individuals applying for U.S. permanent residence will now be required to submit Form I-944, Declaration of Self-Sufficiency, along with their Form I-485 applications. USCIS confirmed that beginning October 13, 2020, the agency will reject Form I-485 if Form I-944 and supporting evidence are not included.

Please stay tuned for further developments on U.S. immigration changes and challenges in the wake of the government’s response to COVID-19. We will continue to provide updates on these important immigration issues.

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