Updates for Week of September 28th: Floodgate Opens for I-485 Filings, Filing Fee Increase Halted, New H1B & PERM Regulations on the Horizon

02. Oct. 2020

AOS Floodgate Opens

The most significant development this week was the historic forward movement of the October 2020 Visa Bulletin, which opened up a floodgate for I-485 filings by applicants, many of whom have waited years to file.

In our Sept. 25th Alert, we covered who benefits.  Now, let us explore why it happened and whether this situation will continue.

  • Q: Why did the cut-off dates advance so rapid?

A: As a result of consular services being reduced due to the pandemic, Presidential Proclamation 10014, which suspends the entry of would-be permanent residents, and other country-specific travel bans, an unprecedented low number of family-based green cards were issued in FY2020 (ending Sept. 30, 2020).  Per regulations, unused family-based green cards in FY2020 are added to the FY2021 employment-based immigrant visa allocation, which is resulting in an all-time high employment-based allocation of approximately 261,500 immigrant visas (green cards). To put that into perspective, the highest employment-based allocation was 158,000 a few years ago and then 156,000 in FY2020.

  • Q: How long will the filing window remain open?

A: As covered in our Sept. 25th Alert, USCIS’s decision to use the “Dates for Filing” chart in October was a major reason the floodgate opened.  Naturally, one question on the minds of many is whether USCIS will continue to honor the “Dates for Filing” beyond October 2020. Unfortunately, DOS and USCIS cannot definitively predict that because their next move will be based on the volume of I-485 filings in October. If USCIS receives significantly more demand than anticipated, it is possible for DOL to do a correction in the form of retrogressing the “Final Action Dates” and/or the “Dates for Filing.” Another possibility is USCIS may announce it will use the less favorable “Final Action Dates” to determine I-485 filing eligibility in November.  One major unknown is the number of I-140 downgrade filings (i.e., how many EB2 India/China applicants will file a second I-140 for EB3 in order to file their I-485 in October). The November 2020 Visa Bulletin will likely be issued around the 19th of October, but may be later (the October 2020 Visa Bulletin was the latest release on record—the 24th). USCIS does not announce which chart it will be using for accepting I-485s until after DOS issues the Visa Bulletin. If the November VB dates do not retrogress and USCIS again allow the use of the “Dates for Filing” chart, then the gates will remain open through at least November.

Filing Fee Increase Halted

On Aug. 7th, we announced a USCIS filing fee increase that was supposed to take effect today, October 2nd.  This week, on Sept. 29, 2020, the U.S. District Court for the Northern District of California issued a preliminary injunction that stopped the Dept. of Homeland Security from implementing any part of the USCIS filing fee changes.  As a result, USCIS will continue to accept USCIS forms with the current editions and current fees, for a to-be-determined amount of time.

New H1B & PERM Regulations on the Horizon

New proposed rules for restructuring of H-1B and PERM wage levels was submitted to the Office of Management and Budget (OMB) for review on Sept. 16, 2020.  Although OMB had up to 90 days to review before publishing the rule, OMB this week waived its review, paving the way for the changes to be published and take effect soon.

Details of the proposed rules are not available, but the rule is expected to increase the wages required for H-1B and PERM applications.