Tag: Immigration Updates & FAQs

Petitions filed as Change of Status

Fiscal year 2023 H-1B cap petitions filed as “change of status” and approved by USCIS automatically took effect on October 1, 2022 if the beneficiary:

• was physically present in the U.S. for the entire period from the date the petition was received through the date the application was approved; and,
• was physically present in the U.S. on October 1, 2022 for the change of status to take effect.

With the exception of Canadian citizens, beneficiaries of approved H-1B cap petitions who depart the U.S. will need a valid H-1B visa to return to the U.S. in H-1B status. Many consulates have a wait period of several months to schedule a visa appointment. Actual visa processing times vary by consulate and can be found at the U.S. Department of State website. All intending visa applicants are advised to check the website of the consulate where they intend to apply for information on scheduling the interview and the visa application process.

Petitions filed for Consular Notification

Approved H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status for an approved consular notification petition, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Canadian citizens do not require a visa, but do need to activate a “consular notification” petition through a Port of Entry into the U.S.

Next Steps for Employers

• Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9for H-1B cap beneficiaries whose I-9 documents are expiring.
• Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
• Pending H-1B Petitions: For H-1B cap petitions still pending, employers need to be aware of foreign nationals who have work authorization ending prior to H-1B approval, and must specifically monitor the employment of F-1 “cap gap” students, as these individuals may need to come off payroll and/or take additional steps to maintain their valid immigration status as of October 1, 2022.

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

 

 

U.S. Citizenship and Immigration Services (USCIS) has further expanded  premium processing eligibility to include more Form I-140, Immigrant Petitions for Alien Workers, under the EB-1 and EB-2 classifications, consistent with its initiative to expand premium processing service for certain long-pending, employment-based permanent resident petitions.

As of September15, 2022, premium processing service is now available for:

• I-140 petitions filed on behalf of multinational executives and managers (EB-1(3) classification) with receipt dates on or before January 1, 2022.
• I-140 petitions for persons seeking a National Interest Waiver (EB-2(1) NIW classification) with receipt dates on or before February 1, 2022.

How to Apply
Petitioners who wish to request a premium processing upgrade must file the new Form I-907, Request for Premium Processing Service and pay a supplemental fee of $2,500. USCIS will have 45 days from receipt of the premium processing request and fee to adjudicate the petition.

USCIS will reject premium processing requests if the initial petition receipt date is after the eligibility date, nor will USCIS accept  premium processing requests for newly filed I-140 petitions in the above-referenced categories  at this time.

What’s Next?

USCIS intends  to expand premium processing to additional form types in the months ahead including additional Form I-140 petitions, Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization as part of its mission to improve efficiencies and reduce burdens in accessing immigration benefits.

Gibney will continue to monitor these developments and provide updates as they become available. If you have questions, please contact your designated Gibney representative or email info@gibney.com.

October 1, 2022 marked the start of the federal government’s fiscal year 2023 (FY 2023), with the Department of State (DOS) October Visa Bulletin taking effect the same day.

What is sure to be disappointing to many is the significant retrogression in the availability of immigrant visas (“green cards”) for Indian nationals in the employment-based second preference (EB-2) category.  Moreover, the availability of immigrant visas for all employment-based applicants will be fewer this fiscal year than last.

Annual Immigrant Visa Quotas and Retrogression – Some Background

Each year, by statute, 140,000 employment-based immigrant visas (green cards) may be issued to qualified applicants, plus any unused visas from the family-based categories in the preceding year. The visas are distributed among five employment-based (EB) preference categories and then allocated by country of birth according to Congressionally-mandated per country quotas. The employment-based preference categories are summarized in the monthly Visa Bulletin. Visa retrogression occurs when the number of individuals seeking a green card exceeds the number of visas available in the applicable employment-based preference category.  A “cut-off date” is then set and published in the Visa Bulletin. A queue to apply for the green card ensues and a foreign national is assigned a place in line based on their priority date, preference category, and country of birth.

For employment-based immigrants, the priority date is determined by the date that a PERM labor certification application is filed with the U.S. Department of Labor (DOL) for the sponsored foreign national employee.  In instances where a PERM labor certification is not required (e.g., for EB-1 petitions and EB-2 National Interest Waiver petitions), the priority date is determined by the date that an I-140 immigrant petition is filed with U.S. Citizenship and Immigration Services (USCIS).  In order for a foreign national to apply for a green card, their priority date must be available or “current” on the monthly Visa Bulletin.  An immigrant visa number is only available when the priority date is earlier than the cut-off date shown on the Visa Bulletin for the applicable preference category and country of birth.

Historically visa retrogression has been most severe for foreign nationals born in India and to a lesser extent, China, as the demand from nationals from these countries often exceeds statutory quotas. The result has been a multi-year wait for green card issuance for these individuals.

Immigrant Visa Availability in FY 2023 v. FY 2022

Retrogression for Indian nationals in the EB-2 category in October comes on the heels of a record numbers of immigrant visas being issued in FY 2022.  In FY 2022, DOS was able to allocate 281,507 immigrant visas for the employment-based categories, more than twice the annual statutory quota of 140,000, due to unused visas in the family-based categories from the prior year spilling over to the employment-based categories.  Family-based visas went unused largely due to the pandemic and the Trump administration bans on the issuance of immigrant visas abroad during the pandemic.

According to USCIS FAQs, the employment-based annual limit for FY 2023 will be higher than it was pre-pandemic, but lower than it was in FY 2021 and FY 2022.  DOS estimates that the FY 2023 employment-based annual limit will be approximately 200,000 immigrant visas, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023.

With the projected reduction in the number of employment-based immigrant visas available in FY 2023, USCIS and DOS collaborate to control the allocation on a monthly basis through the Visa Bulletin, taking into consideration numerous factors including, but not limited to, the inventory of adjustment of status applications already pending with USCIS and whether they can be advanced to approval in the fiscal year, the projected percentage of applications that will not be approved, and the number of applications for the same individual but in different categories, with the stated aim of issuing as many of the available visas as possible within the fiscal year.

With these factors in mind, DOS sets cut-off dates for each preference category as needed, and USCIS determines whether applicants must follow the monthly “Dates for Filing” chart or the “Final Action Date” chart on the Visa Bulletin.

October 2022 Visa Bulletin Dates

With the publication of the October 2022 Visa Bulletin, USCIS determined that applicants may use the “Dates for Filing” chart to determine eligibility to file adjustment of status applications.  The “Dates for Filing” chart allows applicants to file their green card applications, but the applications cannot be approved until an immigrant visa is available based on the “Final Action Date” chart.

The October “Dates for Filing” for the most commonly used employment-based categories are:

EB-1 Priority Workers: 

All countries are “current.”  Individuals from all countries seeking an immigrant visa pursuant to a permanent resident petition (I-140) filed in the EB-1 category may apply.

EB-2 Members of the Professions Holding Advanced Degrees/Persons of Exceptional Ability:  

All countries except China and India are current.

China’s cut-off date is July 8, 2019.

India retrogresses by more than two years, to May 1, 2012.

EB-3 Professional and Skilled Workers:

All countries except China and India are current.

China advances to July 15, 2018.

India advances to July 1, 2012.

The UPSOT

According to DOS, the forward movement of the India priority dates experienced during FY 2022 was due to the unprecedented high number of immigrant visas available in FY 2022.  With the advancement of priority dates in FY 2022, a heavy applicant demand ensued.  This persistent demand (in the form of pending applications – those that were not approved before the annual quota was reached) coupled with significantly lower visa number availability forecasted for  FY 2023 as compared to FY 2022, required DOS to take corrective action to keep  immigrant visa issuance within the maximum allowed under the FY 2023 annual limits.  The retrogression of priority dates is the “corrective action.”

Unfortunately, this means that many Indian nationals who were able to apply for adjustment of status in FY 2021 and FY 2022 now find themselves with pending applications that cannot be approved for the foreseeable future.  While these individuals and their dependent family members (spouse and children under age 21) are eligible for work and travel authorization while their adjustment of status applications are pending, and in some instances have flexibility to change jobs,  they remain in a status limbo, and may face the prospect of their dependent children turning 21 and “aging out” of eligibility for a green card.

Looking Ahead

DOS will soon release the November Visa Bulletin. Dramatic changes from October’s Visa Bulletin are not expected. DOS will continue to monitor the inventory of pending green card applications with USCIS and  the number of immigrant visas issued  to date, and will adjust the Visa Bulletin cut-off dates as appropriate in the months ahead.

Gibney will continue to watch these developments and will provide updates as they become available.  For additional information, please contact your designated Gibney representative, or email info@gibney.com.

The author wishes to thank Law Clerk Jesse Wang for his contributions to this alert.

United States Citizenship and Immigration Services (USCIS) confirmed that the Fiscal Year (FY) 2023 H-1B cap has been reached.

USCIS conducted its initial  H-1B cap lottery  in March 2022, and employers with selected registrations had a 90-day window during which to file H-1B cap petitions for designated beneficiaries.  This year, the number of H-1B petitions submitted by employers during the initial 90-day filing window was sufficient to meet the FY 2023 statutory cap of 20,000 visas for U.S. advanced degree holders, and 65,000 visas for  “regular” cap beneficiaries.  Last year, USCIS conducted additional lotteries in August and November from reserve registrations because the number of H-1B petitions ultimately submitted and  approved during the initial 90-day filing period running from April 1, 2021 to June 30, 2021 was not sufficient to meet the annual statutory H-1B cap.

This year, there will be no additional lotteries.  USCIS has updated registrants’ online accounts to change the status of pending FY 2023 registrations from “Submitted”  to “Not Selected.”

PETITIONS NOT SUBJECT TO THE H-1B CAP

USCIS will continue to accept and process H-1B petitions that are not subject to the cap. These include filings for extensions of status, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

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

International travelers to the U.S. are no longer required to provide proof of a negative COVID-19 test prior to boarding a flight to the U.S. The change took effect at 12:01 AM ET on Sunday, June 12, 2022. The Centers for Disease Control and Prevention (CDC) will reassess the decision to eliminate the testing requirement in 90 days and may reinstate a testing requirement if a new variant of concern emerges. Non-U.S. citizens are still required to be vaccinated against COVID-19 to enter the country, with limited exceptions.

Under the prior policy, all international air travelers were required to take a COVID-19 test, regardless of vaccination status or citizenship, no more than 1 day before travel into the U.S. and show a negative result to the airline before boarding their flight or proof of recovery from the virus within the last 90 days. Individuals entering the U.S. from Canada or Mexico  through land border crossings were not subject to the testing requirement.

Elimination of the testing requirement is a welcome development for the tourism industry as well as  business travelers who may now travel without the suspense of being stranded abroad due to testing availability and outcomes.

Further details regarding CDC travel guidance and testing requirements are available here. Due to frequently changing country conditions and global entry requirements, all travelers should check with airlines and  investigate restrictions imposed by their destination country when making travel plans and immediately prior to departure.

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

U.S. Citizenship and Immigration Services (USCIS) has started to offer premium processing service for certain long-pending, employment-based permanent resident petitions. Consistent with its previous announcement, USCIS is taking an incremental approach to expanding premium processing service, as follows:

• Effective June 1, 2022, premium processing service is available for I-140 petitions filed on behalf of multinational executives and managers (EB-1(3) classification) with receipt dates on or before January 1, 2021.
• Effective July 1, 2022, premium processing service will be available for I-140 petitions for persons seeking a National Interest Waiver (EB-2(1) NIW classification) with receipt dates on or before June 1, 2021.
• Effective July 1, 2022, premium processing service will be available for I-140 petitions for multinational managers and executives (EB-1(3)) with receipt dates on or before March 1, 2021.

Petitioners may interfile a request for premium processing service for covered petitions by filing Form I-907, Request for Premium Processing Service in accordance with the timelines above, and paying a supplemental fee of $2,500.00 . USCIS will have 45 days from receipt of the premium processing request and fee to adjudicate the petition.

USCIS will continue to expand premium processing service to other benefits in the months and years ahead. As previously reported, USCIS is expected to introduce premium processing service for Form I-539, Applications to Extend/Change Nonimmigrant status for F, J and M nonimmigrants and I-765, Applications for Employment Authorization Documents, for F-1 Optional Practical Training and Exchange Visitors before September 30, 2022.

Gibney will continue to monitor these developments and provide updates as they become available. If you have questions, please contact your designated Gibney representative or email info@gibney.com.

Today USCIS announced that it has received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2023 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted from March 1, 2022 through March 18, 2022 . H-1B petitions may be filed for selected registrations starting April 1, 2022.

WHAT EMPLOYERS CAN EXPECT

USCIS has notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration. Registrants’ online accounts will now be updated to show one of the following statuses for each beneficiary registered:

• Submitted: A registration status may continue to show “Submitted” after the initial selection process. These registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will either be Selected, Not Selected, or Denied. If petitions are not filed for selected beneficiaries with the designated 90-day filing window, USCIS may conduct another lottery from the reserve “submitted’ registrations until the FY 2023 cap is reached. This was the case last year, when numerous “submitted” registrations were later selected for a second and third round of filings, after the initial 90-day filing period concluded.
• Selected: Indicates that the employer may file an FY 2023 H-1B cap-subject petition for the beneficiary in the designated 90-day filing period.
• Denied: A duplicate registration was submitted by the same registrant for the same beneficiary; all registrations submitted for this beneficiary for FY 2023 are invalid. There are reports that USCIS has erroneously denied some registrations as duplicate submissions. If you receive such a denial, closely check your submission records to verify whether there were, in fact, duplicate submissions.
• Invalidated-Failed Payment: A registration payment method was declined and not reconciled, invalidating the registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2023 and only for the beneficiary in the applicable selected registration notice. Employers have a 90-day window during which to file the complete H-1B petition, commencing April 1, 2022. All petitions must be filed with the correct USCIS service center and within the filing period indicated on the selection notice.

Gibney will continue to monitor the FY 2023 H-1B cap process and provide updates, and will work with employers to file H-1B petitions for selected beneficiaries during the designated filing window. For additional information, please contact your Gibney representative or email info@gibney.com.

The Biden-Harris Administration announced an expansion of immigration policies to benefit Science, Technology, Engineering, and Mathematics (STEM) degree students and graduates, in a stated effort to strengthen the U.S. economy and competitiveness. The new policies affect the F-1 student, J-1 exchange visitor, and O-1 extraordinary ability nonimmigrant visa categories, as well as the EB-2 National Interest Waiver immigrant visa category.

F-1 STUDENTS

F-1 students are typically eligible for up to one year of post-graduate Optional Practical Training (OPT), which allows the F-1 student to gain practical work experience related to their degree.  F-1 students who graduate with a STEM degree are eligible for an additional two years of OPT (STEM OPT). The Biden-Harris Administration has now expanded the list of academic fields that qualify as STEM degrees with 22 new fields of study added, and thus, a greater number of F-1 students will be eligible for STEM OPT.

J-1 EXCHANGE VISITORS

• New initiative for J-1 scholars, specialists, students, interns, trainees, teachers, and professors: The Biden-Harris Administration announced its Early Career STEM Research Initiative, in partnership with BridgeUSA to facilitate the matching of organizations with STEM Exchange Visitors. The initiative aims to increase the number of STEM-focused educational and cultural exchanges.
• Extension of academic training for J-1 students: J-1 undergraduate and pre-doctoral students are a typically eligible for up to 18 months of post-graduate academic training, which allows the J-1 student to gain practical experience related to their degree.  The Biden-Harris Administration announced it will now allow academic sponsors to request STEM-related academic training for up to 36 months for college and university students pursuing STEM undergraduate or pre-doctoral degrees and recent graduates who seek to commence academic training no later than 30 days after completion of their STEM-related studies. The extension of academic training applies to the current (2021-22) and subsequent (2022-23) academic years.

O-1 EXTRAORDINARY ABILITY

USCIS updated its Policy Manual to clarify eligibility determinations and provide examples of evidence that petitioners may submit on behalf of foreign nationals seeking O-1 extraordinary ability visa classification.  The policy update:

• Expands the circumstances in which petitioners may submit comparable evidence to the listed regulatory criteria, and allows adjudicating officers to consider any potentially relevant evidence in making the final adjudication. Examples include: journal impact factors, total rate of citations relative to others in the field, research experience with leading institutions, and unsolicited invitations for the beneficiary to present at nationally or internationally recognized conferences.
• Provides for a broader interpretation of the field of expertise and area of extraordinary ability, allowing adjudicating officers to consider accomplishments in related occupations involving shared knowledge and skillsets.

EB-2 NATIONAL INTEREST WAIVER

In an update to its Policy Manual, USCIS:

• Provides an overview of the three-prong analysis used to adjudicate requests for a national interest waiver of the job offer and the permanent labor certification requirement – and accompanying test of the labor market.  Although the policy does not change the analysis prongs used in prior adjudications, the expanded overview addresses how officers should review evidence under each prong.
• Elaborates on specific evidentiary considerations for STEM fields.  Of note, USCIS will consider an advanced degree in a related STEM field, particularly Ph.D., as an “especially positive factor”.
• Directs officers to recognize the importance of critical and emerging technology fields, including those published by the National Science and Technology Council or the National Security Council.
• Provides that officers should consider letters from interested US government agencies or federally funded research centers of particular weight for substantiating benefit to the national interest.

WHAT EMPLOYERS AND FOREIGN NATIONALS SHOULD KNOW

The expansion of STEM initiatives across the F-1, J-1, and O-1 visa categories, as well as National Interest Waiver petitions, is a welcome development that provides additional pathways for STEM students and researchers to continue ongoing research efforts in the U.S. As emphasized by the White House, the revisions to the policy manual relating to O-1 and National Interest Waiver petitions are expected to facilitate clarity and predictability in adjudications.

Gibney will continue to provide updates on these new changes. For questions, please contact your Gibney representative, or email info@gibney.com.

The White House indicates that it intends to lift the regional travel ban restricting travel from eight southern African countries effective December 31, 2021 at 12:01 am ET.

The regional travel ban restricting travel from Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa and Zimbabwe was short-lived. It was initially imposed on November 29, 2021 in response to the emergence of the COVID-19 Omicron variant, and was met with widespread criticism as the variant spread in non-restricted countries. According to the White House, lifting of the ban comes at the recommendation of the Centers for Disease Control and Prevention (CDC) and is based on a greater understanding of how vaccines work against the Omicron variant.

Individuals traveling into the U.S. by air remain subject to the COVID-19 vaccination requirements under Proclamation 10294, as well as related CDC travel requirements, including updated COVID-19 testing requirements.

A Caution Regarding Testing

Travelers who are in the U.S. and who require a negative COVID-19 test to return to their country of origin are cautioned that the demand for testing in some areas of the U.S. has surged with the Omicron variant.  Once a test is secured, it may take 5-7 days to obtain test results, particularly in connection with PCR testing, making compliance with travel testing requirements difficult.  Individuals in the U.S. requiring a negative COVID-19 test to return abroad should plan accordingly.

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

Effective December 6, 2021, all international travelers must take a COVID-19 viral test, regardless of vaccination status or citizenship, no more than 1 day before travel by air into the United States. Travelers must show a negative result to the airline before boarding their flight.  For those who have recently recovered from COVID-19, they may instead travel with documentation of recovery from COVID-19.

Required documentation of recovery includes a positive COVID-19 viral test result on a sample taken no more than 90 days before the flight’s departure from a foreign country and a letter from a licensed healthcare provider or a public health official stating that individual is cleared to travel.  Further details regarding CDC travel guidance and testing requirements are available here.

Due to frequently changing country conditions and global entry requirements, all travelers should check with airlines and  investigate restrictions imposed by their destination country when making travel plans and  immediately prior to departure.

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