Category: Alerts

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.

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

U.S. Citizenship and Immigration Services (USCIS) announced a new version of Form I-9, Employment Eligibility Verification. Employers must use Form I‑9 to verify the identity and employment authorization of their employees.

Changes to the I-9 Form

Features of the revised I-9 form include:

• Reduced to a one-page form and is fillable on tablets and mobile devices
• Section 1 Preparer/Translator Certification is now is a standalone supplement that employers can use when necessary
• Section 3, Reverification and Rehire is a now a standalone supplement for employers to use if a rehire occurs or reverification is required
• List of Acceptable Documents was revised to include some acceptable receipts and additional guidance on automatic extensions of employment authorization documentation

Most notably, the form now includes a checkbox allowing E-Verify registered employers to indicate they examined Form I-9 documentation via live video interaction under a DHS-authorized alternative procedure rather than via physical examination.

When Should Employers Begin Using the New Form?

Employers may begin using the new form on Aug. 1, 2023, but may continue to use the 2019 version through Oct. 31, 2023. Starting November 1, 2023 all employers must use the new version.

Changes to Remote Verification Beginning August 1^st

DHS previously announced the end of temporary COVID-19 flexibilities as of July 31. However, beginning August 1^st, DHS is providing an alternative for E-Verify registered employers to examine Form I-9 documents via live video interaction, instead of the current requirement to examine documents in-person. To participate, employers must:

• Be an E-Verify participant in good standing
• Retain clear and legible copies of all documents
• Conduct a live video interaction with the employee
• Create an E-Verify case if the employee is a new hire

Employers Required to Cure Past Virtual Inspections (March 20, 2020 to July 31, 2023)

Again, DHS previously announced the end of temporary COVID-19 flexibilities as of July 31. Virtual inspections that were conducted during the COVID-19 pandemic (March 20, 2020 to July 31, 2023) must be cured via a physical inspection or, for E-Verify employers, a live video interaction, by August 30.

Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by Aug. 30, 2023.

Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023.

Gibney will continue to monitor for developments. For questions, please contact your Gibney representative or email info@gibney.com.

On July 27, USCIS announced that it will conduct a second lottery for the fiscal year (FY) 2024 H-1B cap. USCIS has not yet indicated when the second lottery will occur.

USCIS previously concluded its initial FY 2024 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 is being conducted because the number of H-1B petitions ultimately submitted during the initial H-1B filing period (April 1, 2023 to June 30, 2023) were not sufficient to meet the annual H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the second lottery will be conducted from this reserve. USCIS has not yet announced how many additional registrations will be selected from the reserve.

WHAT SHOULD EMPLOYERS EXPECT NEXT?

• Employers or their designated counsel should check their registration accounts for new selection notices.
• Selected registrations are expected to have a notice indicating the selection is from a reserve registration.
• The notice will specify the 90-day filing period  during which the employer must submit the H-1B cap petition for the selected registration.
• The H-1B cap petition for the selected registration must be submitted to USCIS  within the filing period specified on the notice.
• The notice must be included with the H-1B petition submitted to USCIS during the specified filing period.
• The H-1B cap petition may only be submitted for the beneficiary named in the selected registration; employers may not substitute another beneficiary.

ADDITIONAL INFORMATION

The running of a second lottery is welcome news to employers and foreign nationals who were shut out of the initial lottery.  Last year, only one lottery was conducted, and a sufficient number of petitions were submitted and approved to meet the H-1B cap. This year, USCIS received a record 758,994 eligible H-1B cap registrations. Nonetheless, the petitions submitted pursuant to the first  lottery conducted in March were not sufficient to meet the cap.  Widespread layoffs in the technology sector may have resulted in fewer submissions pursuant to the initial round of selected registrations.  Additionally, USCIS is investigating allegations of fraud and duplicate/improper submissions in the registration process, and this, too, may have contributed to the submission of fewer petitions and the need to run a second lottery.

For additional information, you may visit the USCIS FY 2024 H-1B Cap Season site or contact your designated Gibney representative.

The August 2023 Visa Bulletin has been released. Sustained demand for too few immigrant visas continues to have an adverse impact on foreign nationals and their U.S. employers.

Highlights from the August 2023 Bulletin include:

• Establishment of a cut-off date for EB-1 Worldwide, Mexico and the Philippines
• Retrogression of more than a decade for EB-1 India
• Further retrogression for EB-3 Worldwide, Mexico and the Philippines.
• USCIS confirmedthat it will follow the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application.

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

The Final Action Dates are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) now has a cut-off date of August 1, 2023.
• EB-1 China’s cut-off date held steady at February 1, 2022
• EB-1 India retrogressed more than 10 years, to January 1, 2012.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) Final Action Date advanced to April 1, 2022.
• EB-2 China: Final Action Date holds steady at June 8, 2019.
• EB-2 India:  Final Action Date holds 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) retrogressed further to May 1, 2020.
• EB-3 China:  Final Action Date advanced one month to June 1, 2019.
• EB-3 India: Final Action Date held steady at 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?  

Retrogression is unlikely to improve for the remainder of the fiscal year as the limited annual supply of immigrant visa dwindles.

Due to continued use and high demand, the Department of State established a cut-off date for EB-1 Worldwide. While further adjustments may be made in September, the State Department predicts that EB-1 Worldwide will return to “Current” with the start of the new fiscal year in October.

Because the EB-1 Worldwide demand for FY 2023 is now greater than the number of visas remaining and available, EB-1 India can no longer received unused numbers from the Worldwide category. Due to per country quotas, India has reached the FY 2023 limit. The EB-1 India cut-off date of January 1, 2012 reflects the oldest priority date of an EB-1 applicant.  The State Department expects that with the new fiscal year in October, the EB-1 India final action date should advance to at least the final action date in the July Visa Bulletin (February 1, 2022). However, this will depend in part on demand for EB-1 visas by Indian applicants.

Further retrogression this month for EB-3 Worldwide reflects sustained demand since cut-off dates were put in place in May 2023.

As demand keeps pace with predictions, the ability to file Adjustment of Status applications for employees will continue to be more difficult through the end of the fiscal year. Employers should contact immigration counsel to identify foreign nationals who are eligible to file Adjustment of Status applications in August, as further retrogression is possible for September.

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

On July 12, 2023, the U.S. Department of Homeland Security (DHS) added eight fields of study to the Designated Degree Program List qualifying F-1 students to secure a STEM OPT (science, technology, engineering, mathematics Optional Practical Training) extension of  employment authorization.

The change provides more international students with the opportunity to gain additional practical experience by temporarily working in the U.S. These updates are part of the Biden Administration’s ongoing efforts to provide additional pathways for STEM students and researchers to continue ongoing research efforts in the U.S. In its 2016 STEM OPT Final Rule, DHS indicated it would continue to make ongoing updates to this list, in keeping with changes to STEM fields, academic programs and/or technological trends.

STEM OPT Program

OPT allows certain F-1 students to undertake 12 months of practical work experience related to their area of study either during or following the completion of their degree program. Typically, the program allows students to work for 12 months. Students who have earned a degree in a designated STEM field are eligible to apply for a 24-month extension of OPT, allowing them to work for a total of 36 months

New STEM Fields of Study

The newly designated fields of study include:

• Landscape Architecture
• Institutional Research
• Mechatronics, Robotics, and Automation Engineering Technology/Technician
• Composite Materials Technology/Technician
• Linguistics and Computer Science
• Developmental and Adolescent Psychology
• Geospatial Intelligence
• Demography and Population Studies

What Employers and Students Need to Know

The notice impacts qualifying F–1 nonimmigrant students seeking a 24-month extension of post-completion OPT. Employers and students should review DHS’s STEM Designated Degree Program List for the complete list of fields that qualify and confer with immigration  counsel regarding associated compliance requirements.

Students seeking an OPT  STEM extension with an E-Verify employer must work with their employer to complete Form I–983, “Training Plan for STEM OPT Students” and must apply to renew their initially granted OPT Employment Authorization Document (EAD) during its validity period by filing  Form I–765, “Application for Employment Authorization” with USCIS.

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

The Department of State released the July 2023 Visa Bulletin.  Most Employment-Based Categories will hold steady with the exception of EB-3 Worldwide, EB-3 India, and Other Workers India:

• 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 and EB-2 cutoff dates will remain the same for all countries.
• EB-3 cutoff dates will remain the same for all counties with the exception of:

• • EB-3 Worldwide will retrogress by four months to February 1, 2022; and
  • EB-3 India and Other Workers India will retrogress significantly by more than three years to January 1, 2009.

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) remain current
• EB-1 India and China maintain a Final Action cut-off date of February 1, 2022.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) hold steady at February 15, 2022.
• China: Final Action dates hold steady at June 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) will retrogress by four months to February 1, 2022.
• China’s Final Action Dates hold steady at April 1, 2019.
• India will retrogress significantly by more than three years to January 1, 2009.

Other Workers

• All categories will hold steady except for Other Workers India, which will retrogress to the same date as EB-3 India to 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 predicted in the May 2023 Visa Bulletin, due to higher than expected demand, the State Department has implemented a further cutoff date for EB-3 Worldwide to keep immigrant visa number allocation within the FY 2023 annual limit. As noted in the June 2023 Visa Bulletin, consistently robust number usage and high demand in the EB-3 India category necessitated significant retrogression for this category in July. Substantial retrogression was also implemented for Other Workers India emulating the same date as EB-3 India. As the July 2023 Visa Bulletin estimates that applicants chargeable to India will use all EB-3 numbers by the end of June, employers may wish to proceed in particular with eligible Adjustment of Status applications for EB-3 India applicants in June.

With higher than expected demand and continued retrogression, the ability to file Adjustment of Status applications for employees will continue to be more difficult through the end of the Fiscal Year. Employers should contact immigration counsel to identify foreign nationals who are eligible to file Adjustment of Status applications in June. This is particularly important for EB-3 India and Other Workers India applicants given the significant retrogression observed in these categories for July.

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