July 2024 – Counsel Corner

Visa Bulletin Advances for EB-3 Other Workers

Great news for those eagerly awaiting the Visa Bulletin to become “current” for filing Green Card applications! The Visa Bulletin for EB-3 Other Workers has progressed by two months to January 1, 2021. This means individuals with Priority Dates (those who filed their PERM applications) of January 1, 2021, or earlier are now eligible to submit their final Green Card applications.

Although a two-month advancement might seem modest, it represents a significant victory. The Visa Bulletin had regressed due to the impacts of government shutdowns during the COVID-19 era since May 2022. This advance, ahead of the federal government’s fiscal year end in October, brings positive anticipation that further advancements in the Visa Bulletin will occur when the visa allotment resets in October.

H-2B APPLICATION FILING FOR OCTOBER 1, 2024, START DATE
Reminder for all those who are applying for an H-2B start date of October 1, 2024, that the three-day filing period for H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) opens on July 3, 2024, at 12:00 a.m. EST and closes on July 5, 2024, at 11:59 p.m. EST.

Applications for October 2, 2024, and later start dates must be filed no more than 90 calendar days and no less than 75 calendar days before the employer’s date of need. (See 20 CFR 655.15(b).)

Applications filed before July 3, 2024, at 12:00 a.m. EST for October 1, 2024, start dates will be denied per OFLC’s regulations and procedures.

Following the closure of the filing window, OFLC will randomly assign applications for review and processing. This applies to all H-2B applications seeking an October 1, 2024, start date filed during the July 3-5, 2024 filing period.

If you plan on filing for the October 1, 2024, start date, please let my team know so we can plan your PERM, Immigrant Petition, and Green Card applications accordingly.  Also, please inform us of when your PERM-sponsored workers will be entering the country on their H-2B visas, or if your PERM-sponsored workers will not be arriving this year.

FLC DATA CENTER WEBSITE TRANSITIONS TO FLAG WEBSITE
Starting July 1, 2024, OFLC will discontinue the Foreign Labor Certification (FLC) Data Center website, which currently hosts OEWS wages at https://www.flcdatacenter.com. The FLC Data Center, home to the Online Wage Library (OWL) for prevailing wage determinations, will no longer be operational. Prevailing wage data will be migrated to the “Wage Data” tab on the FLAG website (https://www.flag.dol.gov) as part of this transition by OFLC.

CHEVRON DEFERENCE
The Supreme Court in Loper Bright Enterprises, et al. v. Raimondo overruled the Chevron Doctrine, which had required courts to give deference to government agencies in their interpretation of ambiguous statutes. Now that Chevron has been overruled, courts may not defer to an agency’s interpretation of the law simply because a statute is vague and ambiguous, the interpretation of such statutes lies solely with the courts who “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

While the Loper Bright Enterprises case had nothing to do with immigration, the impact of its ruling will be seen across many other areas of law. Applying the ruling to immigration law, overruling Chevron could potentially lead to U.S. district courts overturning USCIS and other agency denials of applications and petitions.

Elliott Mason President and General Counsel, ULSElliott S. Mason
President and General Counsel