March 2021 Visa Bulletin Updates/Analysis

China and India EB-1 jumped ahead from January 1, 2020 to August 1, 2020, which means essentially no added wait for regular processing cases and just a slight one for premium processing ones.

Rest-of-world EB-3 remains current for professionals and other workers (less skilled positions).

EB-2/3 for China and India both advanced a few months across the board.

China EB-5 did not move and Vietnam advanced three weeks. This is the interesting one. Because there seems to be little to no movement at the consular stage abroad right now due to COVID, it appears these are being advanced slowly or not at all to avoid a flood of applicants at any one time. For the time being, it means most of those able to file will be AOS applicants - either students or those already in employment-based statuses, which is obviously a vast minority of those awaiting availability.

The Rules are the Rules

Linked here, you will find a Decision that defies all common sense and logic, but highlights the lengths to which the DOL and the Board will go to demand strict compliance with the letter of the law.

In the Weck case, the Board upheld a denial based on a discrepancy where the offered job paid 80 cents per year than the prevailing wage determination would have required. On its face, this is crazy. While I understand the interest in holding to the precise language of the law and the Board’s general unwillingness to create a test to determine what is or is not “substantial compliance” with the legal requirement, we’re talking about about less than 4 pennies per pay period.

With that said, a couple comments:

  • In many positions, it behooves the employer to request an hourly determination and make the offer on that basis. This helps in making sure the prevailing wage is complied with because these are always issued down to the penny.

  • If you’re doing simultaneous recruitment while awaiting the wage determination, it is usually best to make sure the offer is not at the bare minimum, if at all possible, because the DOL wage data can flip over to the next year while you’re awaiting the determination and then mess up the recruitment (ie. too low a wage listed on the Notice of Filing posted at the worksite).

  • There have been past decisions at odds with how this one came out, for whatever that’s worth (not much to the employer and employee here, of course).

November Visa Bulletin - No added waits for less-skilled workers

The November 2020 visa bulletin was (finally) issued today and can be found by clicking here.

The good news is that the EB-3 Other Workers category for less-skilled positions remains current for all but two countries. This means U.S. employers no longer will face the additional waiting times we have seen in the past two years when hiring through this program. While no one would confuse this multi-step process with being “fast,” the lack of additional wait times for visa availability is a big benefit. In particular, the influx of unused family visas at the start of the government’s fiscal year eradicated backlogs for people born in Philippines, which has historically been a big source for U.S. employers in industries like home health, facilities services, trucking, etc.

In other categories, EB-1 and EB-2 both advanced for China and India (they are current for all other countries) and EB-5 did not move, after some recent activity.

Overall, the carryover of unused family-based immigration visas from last year really pushed things forward in several categories.