November 1, 2023

November 2023 Visa Bulletin Released

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.

October 26, 2023

DHS Proposes to Amend H-1B Program

On October 23, 2023, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking (NPRM) to amend its H-1B regulations. The proposal also includes provisions that would change the H-1B cap registration and selection process.

If implemented, the NPRM would:

  • Address H-1B cap registration abuse by changing the way USCIS selects registrations. Under the proposed rule, USCIS would select registration by unique beneficiary to help ensure that each beneficiary has the same chance of being selected.
  • Allow automatic extensions of F-1 cap-gap status from the current October 1 to April 1 of the fiscal year for which H-1B status is requested.
  • Clarify the definition and qualifying criteria for what constitutes an H-1B specialty occupation.
  • Codify USCIS policy to give deference to prior petition approval where there is no material change to the underlying facts of the prior petition.
  • Provide more flexibility for nonprofit and government research organizations to sponsor cap-exempt H-1B petitions.

The Details

In advancing the rule, DHS aims to improve efficiencies, increase program benefits and flexibility, and strengthen the integrity of the H-1B program.

Modernize and Create Efficiencies

The NPRM

  • Revises the regulatory definition for an H-1B specialty occupation to codify that a range of degrees (fields of study) may qualify an individual for a specialty occupation, though there must be a direct relationship between the required degree field(s) and the position duties.
    • A general degree requirement (e.g., a degree in business administration or liberal arts degree) without specialized studies is insufficient to qualify for an H-1B.
    • A software developer position requiring a degree in any field of engineering would not generally satisfy the requirement that the position requires the application of a body of highly specialized knowledge and a degree in a specialty field.
  • Clarifies that, for purposes of establishing that a position is a specialty occupation, the qualifying criterion – a bachelor’s degree is normally required for the position – does not mean that a bachelor’s degree is “always” required.
    • This reflects current USCIS practice, but the prior administration frequently took the position that “normally” meant “always,” issuing requests for evidence and denying petitions accordingly. This provision is intended to standardize adjudications.
  • Clarifies that an amended or new petition must be filed when there is a material change to the conditions of employment, including following the filing of a new Labor Condition Application (LCA) due to a change in an H-1B worker’s place of employment. The amendment must be filed before the change takes place.
  • Codifies and clarifies the policy of giving deference to prior petition approvals if there have been no material changes in the underlying facts of the prior petition.
    • This provision would apply to petitions for all nonimmigrant classifications filed on Form I-129, including petitions filed for E, L, O and TN nonimmigrants.
  • Requires evidence of maintenance of status if the beneficiary is seeking an extension or amendment of stay.
    • This provision would apply to E–1, E–2, E–3, H–1B, H–1B1, H–2A, H–2B, H–3, L–1, O–1, O–2, P–1, P–2, P–3, Q–1, R–1, and TN nonimmigrants.
  • Eliminates the itinerary requirement if services will be performed in more than one location.
    • The requirement to obtain corresponding LCAs for worksites is unchanged.
  • Allows petitioners to amend validity periods when the requested validity period expires before adjudication is completed.

Increase Benefits and Flexibility

The NPRM

  • Modernizes the definition of employers who are exempt from the annual statutory cap on H-1B visas to create more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization.
  • Provides automatic extensions of F-1 cap-gap status from the current date of October 1 to April 1 of the fiscal year for which H-1B status is requested, to avoid disruptions in status, including OPT and STEM OPT employment.
  • Offers start date flexibility for certain H-1B cap-subject petitions as long as the start date does not exceed six months beyond the petition filing date.

Increase Program Integrity

The NPRM

  • Changes the cap registration process to select registrations based on a unique beneficiary identifier to reduce or remove the advantage of submitting multiple registrations for the same individual by different employers to increase changes of selection.
    • While a beneficiary still could have multiple, unrelated employers submit a registration on their behalf, the beneficiary would only be entered into any given lottery once, and if selected, each employer that submitted a registration for that beneficiary would be notified of selection and would be eligible to file a petition for the beneficiary.
  • Bars related entities from submitting multiple registrations for the same beneficiary.
  • Codifies USCIS’s ability to deny or revoke an approved H-1B petition where the underlying registration contained a false statement.
  • Codifies USCIS authority to request contracts and work orders from a petitioner where appropriate, requires that the petitioner have an actual (non-speculative) position for the H-1B worker as of the requested start date on the petition, and codifies the existing requirement that a petitioner have a bona fide job offer as of the requested start date.
  • Clarifies that beneficiary-owners may be eligible for H-1B status under defined conditions.
  • Codifies USCIS authority to conduct site visits, including visits to third-party worksites and home worksites.
  • Clarifies that if an H-1B worker is staffed to a third party, the requirements of the third party are most relevant to determining whether the position is a specialty occupation.

What’s Next?

The public may submit comments to the rule through December 22, 2023. Once DHS reviews and considers all comments, it intends to publish one or more final rules.  A final rule addressing cap registration and selection may be in place for next year’s cap registration process.

Gibney will closely monitor advancement of this rule and will provide updates as they become available.  For questions about the rule and the notice and comment period, please contact your designated Gibney representative or email….

October 19, 2023

U.S. Moves Closer to Resuming Stateside Visa Renewal

The U.S. Department of State is expected to launch a pilot program to resume stateside H-1B visa renewal early in 2024.

On October 17, 2023, the State Department sent the proposed Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens to the Office of Information and Regulatory Affairs for final review. Once published, eligibility criteria for participation in the pilot program will be specified.

While precise details are not yet known, we expect the pilot program will:

  • Begin in early 2024;
  • Be limited to H-1B principals only;
  • Be limited to nationals of countries that are not subject to reciprocity fees;
    • India will be one of the eligible countries to participate in the pilot program;
  • Have eligibility requirements like those for participation in the interview waiver program; and
  • Be available for 20,000 applicants.

Participation will be voluntary.

The limited pilot program is intended to test the operationality of the stateside renewal process. The program is expected to expand after any operational issues are resolved.

The return of stateside visa renewal is a welcome step forward in reducing consular delays and providing foreign citizens with greater certainty and flexibility for international travel.

Gibney will continue to monitor advancement of the program and will provide updates when available.  For additional information, please contact your designated Gibney representative or email info@gibney.com.

October 16, 2023

Modified SHOP SAFE Act Introduced to Combat Anticounterfeiting

On September 28, 2023, Senators Chris Coons (D-Del.) and Thom Tillis (R-N.C.) introduced the Stopping Harmful Offers on Platforms by Screening Against Fakes in E-Commerce (SHOP SAFE) Act. This bill is being introduced in modified form for the third time—it was introduced first in 2020, and again in 2021.

The bill, if passed, would: (1) modify the Trademark Act of 1946 to establish contributory liability for e-commerce platforms when a third party lists counterfeit goods; (2) require brand owners to provide platforms with advance notice of their trademarks so that they can proactively prevent sales; and (3) provide safe harbor for platforms that vet sellers to ensure legitimate and proactively take down counterfeit listings.

The SHOP SAFE Act would transform the current landscape of contributory liability claims against e-commerce platforms, and would undermine the landmark case Tiffany v. eBay, which established that, under certain circumstances, online marketplaces cannot be held liable for third-party listings offering counterfeit goods.

Gibney will continue to monitor developments. For questions, please contact info@gibney.com.

October 6, 2023

Diversity Visa Lottery Now Open for FY 2025

WHAT IS THE DIVERSITY VISA LOTTERY?

The Diversity Immigrant Visa Program (“DV Program” or “DV-2025 Program”) is a government lottery program that provides up to 55,000 immigrant visas (aka green cards) to persons from countries with low U.S. immigration rates.

Under this program, foreign nationals who are selected through a randomized computer drawing are granted the opportunity to apply for U.S. Lawful Permanent Resident (“green card”) status. The DV Program is administered by the U.S. Department of State, and there is no cost to register.

WHEN CAN I APPLY?

The online registration period for the DV-2025 Program is open from 12:00 pm (ET) on October 4, 2023, to 12:00 pm (ET) on November 7, 2023. The entry form will only be available for submission during this time.

WHO IS ELIGIBLE?

An individual, their spouse, or their parent, must have been born in a country with historically low immigration rates to the United States (i.e., less than 50,000 U.S. immigrants in the last five years) in order to be eligible to enter the DV Program.

For DV-2025, natives of the following countries are not eligible to apply: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), Venezuela, and Vietnam.

Natives of Macau SAR and Taiwan are eligible for DV-2025.

Eligibility is generally determined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on his/her country of birth, there are two alternative ways to qualify: First, a foreign national whose spouse was born in an eligible country may apply, provided that both the individual and spouse are named on the selected entry, are found eligible, and enter the U.S. simultaneously. Second, a foreign national who was born in a country whose natives are ineligible may be eligible to apply if neither parent was born in or legally resided in that country at the time of the foreign national’s birth.

In addition to the nationality requirement, the applicant must also have either a high school diploma or its equivalent or at least two years of work experience in an occupation requiring at least two years of training or experience. The Department of State has a list of eligible occupations on their website.

Applicants do not need to live or be physically present in the United States to apply for the DV-2025 Program.

HOW DO I APPLY?

Applicants must submit the free Electronic Diversity Visa Entry Form online at state.gov during the entry period indicated above. No late entries or paper entries will be accepted.

In past years, the last week of the registration period saw heavy demand on the application website, causing website delays. We therefore recommend submitting the Entry Form as early as possible during the entry period.

By law, an applicant may submit only ONE lottery entry. Individuals who attempt to submit more than one entry will be disqualified.

Applicants should closely follow the detailed instructions for registration on the Department of State’s website.

Upon submission, the applicant will receive a unique confirmation number that will allow for case status lookup.

HOW DOES THE SELECTION PROCESS WORK?

DV Program lottery winners are selected via a randomized electronic lottery. All DV-2025 applicants must go to the Entrant Status Check website and enter their unique confirmation number from the online registration to find out whether their entry has been selected.

Entrant Status Check will be available starting at 12:00 p.m. (ET) on May 4, 2024, through at least September 30, 2025. Lottery winners will not receive correspondence in the mail.

Selection in the DV Program does not automatically confer U.S. Lawful Permanent Resident status – only the opportunity to apply for it.

HOW DO I APPLY FOR PERMANENT RESIDENCE IF I AM SELECTED?

Applications for U.S. Lawful Permanent Resident (“LPR”) status can be completed by filing an adjustment of status application if lawfully present in the U.S. or by filing an application for an immigrant visa at a U.S. Consulate abroad. There are fees and eligibility requirements associated with the application for permanent residence, including a medical exam. If an applicant is selected in the DV-2025 Program, the actual application for permanent residence must be filed and approved by September 30, 2025.If the application is not approved by that date, the application is invalidated.

Note: more individuals are selected in the DV Program than there are immigrant visas/green cards available. As a result, some individuals who are selected in the DV Program may ultimately be unable to become U.S. LPRs if the available immigrant visas/green cards are allocated prior to approval of the individual’s application for permanent residence.

WHERE CAN I GET MORE INFORMATION?

Instructions regarding how to apply for the DV-2025 Program may be obtained from the official U.S. Department of State website at dvprogram.state.gov and at DV-2025 Program Instructions.

For more information or specific legal advice, please contact your designated Gibney representative or email info@gibney.com.

October 4, 2023

USCIS Employment Authorization Document Validity Period Updates

USCIS Increases Employment Authorization Document Validity for Select Classifications

USCIS issued  updated guidance increasing the validity period of Employment Authorization Documents (EADs) issued to certain categories of applicants.

USCIS will increase the initial validity period from a maximum of two (2) years to a maximum of up to five (5) years for the following applicants:

  • Applicants for Adjustment of Status under INA Sec. 245
  • Asylees and refugees
  • Noncitizens granted withholding of deportation or removal
  • Noncitizens with pending applications for asylum or withholding of removal

The maximum validity period of an EAD issued to a noncitizen paroled as a refugee or an individual seeking suspension of deportation or cancellation of removal will also be raised from one (1) year to five (5) years.

The increased validity period for these categories is intended to reduce the number of times individuals must apply for renewals, benefiting the applicant while reducing the administrative burden of processing applications on USCIS.

In addition, the guidance:

  • lists the categories of noncitizens who are employment authorization incident to their status, i.e., individuals who do not require an EAD for employment and who may work pursuant to a properly issued I-94 document (e.g., L-2 spouses with a valid I-94 annotated with L-2S status);
  • explains that Afghan parolees and certain Ukrainian parolees are authorized to work incident to their parole.

The new guidance is effective immediately and applies to Applications for Employment Authorization (I-765) that are pending or filed on or after September 27, 2023.

Rule Extending EAD Validity for 540 Days Upon Renewal Expires October 26, 2023

As part of an effort to reduce EAD application backlogs and prevent gaps in employment authorization (and loss of employment) for applicants filing to renew their EADs, in May 2022 USCIS implemented a temporary rule that automatically extended the validity of certain EADs for up to 540 days if the applicant timely submitted a renewal application by filing Form I-765.

This automatic 540-day extension is set to expire on October 26, 2023. As such, certain covered EAD renewal applications filed on or after October 27, 2023 will only be eligible for an automatic EAD extension period of up to 180 days.

The following categories will revert to the normal 180-day automatic EAD extension period upon the timely filing of a renewal application:

Category Description Classification
Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status (c)(26)
Adjustment of Status applicants (c)(9)
Adjustment based on Continuous Residence Since Jan. 1, 1972 (c)(16)
Section 210 Legalization (pending I-700) (c)(20)
Section 245A Legalization (pending I-687) (c)(22)
Refugee (a)(3)
N-8 or N-9 (a)(7)
Citizen of Micronesia, Marshall Islands, or Palau (a)(8)
Withholding of Deportation or Removal Granted (a)(10)
*Spouses of principal E nonimmigrant with an unexpired I-94 (a)(17)
*Spouses of principal L-1 Nonimmigrant with an unexpired I-94 (a)(18)

 

*Spouses of E and L visa holders are authorized to work incident to their status with a properly endorsed I-94 (e.g., endorsed with L-2S or E-3S status), and are not required to obtain an EAD for employment. However, these individuals may apply to renew previously issued and valid  EADs if they wish.

Applicants who submit an EAD renewal application on or before October 26, 2023 will continue to be eligible to the automatic 540-day extension provided the I-765 renewal application is filed under the same classification and provided that USCIS receives the EAD renewal application before the expiration date on the underlying EAD.

At this time, it is uncertain whether USCIS will extend the automatic 540-day extension rule as there has been some improvement in EAD application processing times and some reduction in backlogs.  Gibney will continue monitor USCIS policy around this issue and will provide updates as they become available.

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

September 29, 2023

Israel Added to Visa Waiver Program November 30, 2023

Author: Rachel Refkin

On September 27, 2023, the Department of State and Department of Homeland Security (DHS) jointly announced the designation of Israel into the Visa Waiver Program.

OVERVIEW

  • As of November 30, 2023, citizens and nationals of Israel may travel to the U.S. for business or tourism for up to 90 days without a visa if they obtain  ESTA authorization.
  • The Visa Waiver Program allows nationals from a select group of U.S. security partner countries to travel to the U.S. without a visa for up to 90 days to encourage commerce and tourism.

WHAT THIS MEANS FOR EMPLOYERS AND FOREIGN NATIONALS:

  • Effective November 30, Israeli citizens and nationals who obtain an ESTA clearance may travel to the U.S. for up to 90 days for business or tourism without first obtaining a visa.
  • ESTA authorization for travel is generally valid for up to two years.
  • Israeli citizens and nationals who hold valid B-1/B-2 visas may continue to use their valid visas for both business and tourism travel to the United States.
  • ESTA travel authorization does not guarantee admission into the United States. All non-citizens traveling through the Visa Waiver Program are still subject to grounds of inadmissibility and inspection by U.S. Customs and Border Protection to ensure their intended visit is consistent with business or personal tourism.

ADDITIONAL INFORMATION

The American-Arab Anti-Discrimination Committee has filed a lawsuit challenging Israel’s admission to the Visa Waiver Program.  As of September 26, 2023, a federal district court in Michigan has denied a motion requesting a  temporary restraining order and a preliminary injunction that would have prevented Israel’s admission.  Gibney is following the litigation and will provide updates accordingly.

Additional information about the Visa Waiver Program and ESTA clearance is available here.

If you have any questions about this alert, please contact your designated Gibney representative or email info@gibney.com.

September 29, 2023

Immigration Impact of a Government Shutdown

If Congress does not reach a budget agreement by September 30, 2023, the federal government will shut down October 1.  Below is a brief overview of the potential immigration impact based on how government agencies operated during prior shut downs.

U.S. DEPARTMENT OF LABOR (DOL)

DOL will cease accepting or processing applications for Labor Condition Applications (LCAs) needed for H-1B petitions and E-3 applications,  prevailing wage applications, and PERM labor certification applications.  DOL may issue guidance providing flexibility to employers who are unable to file PERM labor certification applications with expiring recruitment due to the shutdown.

U.S. CITIZENSHIP AND IMMIGRATION SERVICES

Because USCIS application and petition adjudications are primarily funded by user application fees, USCIS is expected to continue operations without great disruption, though processing times may slow. However, the filing of H-1B petitions and E-3 applications will be impacted, as a DOL-issued LCA is required for the filing (see above).  In the past, USCIS accepted late filings if failure to timely file an H-1B or E-3 extension was due to the  government shutdown.

In contrast, USCIS E-Verify service is appropriations-funded and will be suspended. If the government shuts down, employers will not be able to enroll in E-Verify or to access their E-Verify accounts to verify the employment eligibility of new hires and resolve tentative nonconfirmations (TNCs). E-Verify customer service, online webinars and training sessions, and the Self-Check program will also be unavailable during the shutdown. Employers must still comply with their Form I-9 obligations.

U.S. CUSTOMS AND BORDER PROTECTION

CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and are expected to work without pay during a shutdown. U.S. borders and Preflight Inspections (PFI) areas will remain open. However, there may be staffing adjustments that could result in increased wait times to clear inspection and secure admission to the U.S. Additionally, adjudication of petitions by CBP officers at the border and PFI areas, such as TN applications and L-1 petitions for Canadian citizens, is expected to continue.

U.S. DEPARTMENT OF STATE

Visa and passport services are fee-funded and should continue as long as there are sufficient fees to support operations. However, passport offices housed in government buildings otherwise closed during a shutdown may become unavailable to the public. U.S. Embassies and Consulates remain open and will continue to process visa applications as long as funding remains in place. Visa application processing times may be delayed due to staffing adjustments or slowdowns at other federal agencies responsible for processing the security clearances required for visa issuance. A prolonged shutdown could ultimately exhaust DOS appropriations and result in the suspension of visa processing functions for all but emergency cases.

The situation posed by the federal government shutdown remains fluid. If a shutdown occurs, the impact on immigration related services may change the longer any shutdown persists. Gibney will be closely monitoring the situation and will provide updates. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

August 17, 2023

September 2023 Visa Bulletin Released: What Employers Can Expect

OVERVIEW

The Department of State released the September 2023 Visa Bulletin. Most Employment-Based Categories will hold steady with the exception of EB-2 Worldwide and EB-3 China:

  • USCIS will continue to accept employment-based Adjustment of Status applications based on Final Action Dates rather than the more advanced Dates for Filing chart.
  • EB-1 cutoff dates will remain the same for all countries.
  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will advance by 3 months to July 1, 2022; all other EB-2 categories will hold steady.
  • EB-3 China will advance by 3 months to September 1, 2019; EB-3 cutoff dates for all other countries will remain the same.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR FINAL ACTION DATES

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

EB-1, First Preference Category

  • EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) cutoff dates remain at August 1, 2023.
  • EB-1 China and India maintain a Final Action cut-off date of February 1, 2022 and January 1, 2012, respectively.

EB-2, Second Preference Category

  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) advances by 3 months to July 1, 2022.
  • China: Final Action dates hold steady at July 8, 2019.
  • India:  Final Action dates hold steady at January 1, 2011.

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

  • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) maintain a cutoff date of May 1, 2020.
  • China: Final Action Dates advance by 3 months to September 1, 2019.
  • India: Final Action Dates hold steady at January 1, 2009.

Other Workers

  • All categories hold steady from last month:
    • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) maintain a cutoff date May 1, 2020
    • China: September 1, 2015
    • India: January 1, 2009

EB-5: Fifth Preference Category (Immigrant Investors)

  • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cutoff date of April 1, 2017 and September 8, 2015, 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 September Visa Bulletin, number use by USCIS and the Department of State has been steady during the fiscal year. As a result, most employment-based preference category limits and/or the overall employment-based preference limit for FY 2023 are expected to be reached during September. If at any time an annual limit is reached, the preference category would immediately be made “unavailable”, and no further requests for immigrant visas would be honored. It is likely that many individuals will be required to wait for the commencement of the new fiscal year when green card allocation resets in order to receive their green card, which will begin on October 1, 2023.

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

August 1, 2023

USCIS Completes Second FY 2024 H-1B Cap Lottery

USCIS completed the second H-1B cap lottery for fiscal year (FY) 2024 H-1B cap on July 31, 2023. All employers with selected registrations have been notified.  Employers with selected registrations from the second lottery may file an H-1B petition for the beneficiary of a selected registration during the 90-day period running from  August 2, 2023 to October 31, 2023.

As previously reported, USCIS conducted its initial  H-1B cap lottery  in March 2023, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery was conducted because the number of H-1B petitions ultimately submitted and  approved during the initial H-1B filing period  were not sufficient to meet the annual statutory H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the July lottery was conducted from this reserve.

WHAT THIS MEANS FOR EMPLOYERS AND FOREIGN NATIONALS:

  • Employers with selected registrations will see updates in their myUSCISaccounts, including a selection notice and details of when and where to file the H-1B cap petition.
  • Only employers with selected registrations may file H-1B cap-subject petitions for FY 2024 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
  • An H-1B cap-subject petition for a selected registration must be properly filed at the designated  service center and within the filing period (August 2, 2023 to October 31, 2023) specified on the relevant registration selection notice.
  • Online filing is not available for H-1B petitions. Petitioners must file by paper and must include a printed copy of the applicable registration selection notice with the FY 2024 H-1B cap-subject petition.
  • Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
  • Petitioners filing H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

ADDITIONAL INFORMATION

USCIS reports that, this year, it saw an increase in the number of registrations generally, the number beneficiaries with multiple registrations (including registrations made by different employers for the same beneficiary), and the number of registrations submitted on behalf of unique beneficiaries with only one registration. USCIS suggests that fewer petitions were filed pursuant to the first lottery because of USCIS  fraud investigations resulting in denied and revoked petitions.  Layoffs (and lack of continuing employment sponsorship opportunities for foreign nationals) also contributed to fewer  filings in the first round. If these phenomena continue, a third lottery could be needed.

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