Tag: Immigration

The Department of State released the May 2023 Visa Bulletin.  There are a few notable developments for employment-based applicants, including further retrogression and expected retrogression for several categories:

• 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 India and China will hold steady with a cutoff date of February 1, 2022.
• EB-2 will retrogress further to February 15, 2022 for all countries except India and China.
• EB-3 China will advance to April 1, 2019 and EB-3 India will hold steady at June 15, 2012.
• EB-3 for all countries except China will advance ahead of EB-2.

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) will retrogress by four and a half months to February 15, 2022. Foreign nationals with a priority date before February 15, 2022 are eligible to file adjustment of status applications.
• 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 to June 1, 2022. EB-3 for all countries except China will advance ahead of EB-2.
• China’s Final Action Dates advanced by five months to April 1, 2019.
• India’s Final Action dates hold steady at June 15, 2012.

 EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), China will advance by two months to September 8, 2015 and India cutoff dates will remain at June 1, 2018. 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 March 2023 Visa Bulletin, due to increased demand, the State Department has established an EB-3 Professional/Skilled Workers Worldwide Final Action cutoff date and has further retrogressed the EB-2 Worldwide category. Given the advancement of EB-3 over EB-2 by at least four months for all countries except China, employers may consider downgrading EB-2 petitions to EB-3 petitions if it will allow the sponsored foreign national to file an Adjustment of Status application in May.

The May 2023 Visa Bulletin notes that employers may expect further retrogression for EB-1 India and China in the coming months, as well as further retrogression for EB-2 and EB-5 India as early as June to keep immigrant visa number allocation within the FY 2023 annual limit. If further retrogression occurs, it is anticipated that once the new fiscal year commences on October 1, 2023, Final Action Dates for EB-2 and EB-5 India will return to the dates reflected in the April Visa Bulletin. Further retrogression may also occur in the EB-3 Other Worker category for all countries except China and India due to ongoing demand.

The ability to file Adjustment of Status applications for employees will continue to be more challenging as the year moves on. Employers should work with immigration counsel to identify foreign nationals who are eligible to file Adjustment of Status applications in May. Additionally, it will be particularly important to file Adjustment of Status applications for Chinese and Indian nationals qualifying in the EB-1 category given the possibility of further retrogression in the coming months.

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

OVERVIEW

The Department of State released the April 2023 Visa Bulletin.  There are a few notable developments for employment-based applicants:

• USCIS will accept employment-based adjustment of status applications based on Final Action Dates rather than the more favorable Dates for Filing chart that has been used over the past few months.
• EB-1 India retrogresses further to February 1, 2022.
• EB-2 retrogresses for all countries except China.
• EB-3 China advances to November 1, 2018 and EB-3 India advances ahead of EB-2 India.

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) remains current.
• EB-1 India and China maintain a cut-off date of February 1, 2022. USCIS use of Final Action Dates in April (instead of Dates for Filing) results in retrogression of approximately four months from last month for purpose of eligibility to file an adjustment of status application.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) retrogresses by four months to July 1, 2022. Foreign nationals with a priority date before July 1, 2022 are eligible to file adjustment of status applications.
• China: Final Action dates held steady at June 8, 2019.
• India:  Final Action date retrogress by eight months, to January 1, 2011.

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

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current
• China’s Final Action date advanced by three months to November 1, 2018.
• India’s Final Action date holds steady at June 15, 2012. The EB-3 India Final Action date advance ahead of EB-2 India by seventeen months.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), the China and India cutoff dates will remain at July 8, 2015 and June 1, 2018 respectively. All other countries remain current.
• The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) 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 March Visa Bulletin, due to increased demand, EB-2 final action dates will retrogress for all countries except China to keep immigrant visa number use within the FY 2023 statutory quota. With increased demand and fewer immigrant visas available, further cut-off dates may be implemented for EB-2 and EB-3.

While EB-3 worldwide remains current, retrogression may occur in this category based on predictions made in the March visa bulletin. Given the improvement of EB-2 India Final Action Dates over E-2 India, employers may consider filing downgrades or initial I-140 petitions under EB-3 category to position employees to file adjustment of status applications sooner.

The ability to file adjustment of status applications for employees will continue to be more challenging as the demand for immigrant visas exceeds a dwindling supply. Employers should work with immigration counsel to identify foreign nationals who are eligible to file adjustment of status applications in April, as further retrogression is expected in the months ahead.

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

On March 27, 2023, USCIS announced that it received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2024 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted from March 1, 2023 through March 20, 2023. H-1B petitions may be filed for selected registrations starting April 1, 2023.

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 during the 90-day period designated on the selection notice. 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 a sufficient number of petitions are not filed and approved for selected beneficiaries with the initial 90-day filing window, USCIS may conduct another lottery from the reserve of “submitted’ registrations until the FY 2024 cap is reached.  Notably, last year, the H-1B cap was reached after the first round of selections; USCIS did not make any additional selections.
• Selected: Indicates that the employer may file an FY 2024 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 2024 are invalid.
• 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 2024 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, 2023. All petitions must be filed with the correct USCIS service center and within the filing period indicated on the selection notice.  Online filing is not available for H-1B petitions.

Gibney will continue to monitor the FY 2024 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.

On March 10, 2023, the U.S. Centers for Disease Control (CDC) rescinded its December 2022 order imposing a COVID testing requirement on air travelers to the U.S.  from the People’s Republic of China (PRC), and the Special Administrative Regions of Hong Kong and Macau.

The December 2022 order (effective on January 5, 2023) required a negative COVID-19 test or documentation of recovery from COVID  for air passengers boarding flights to the U.S. originating from the PRC, Hong Kong and Macau, and for travelers with flights to the U.S. originating  from  Seoul’s Incheon International Airport, Toronto’s Pearson International Airport, and Vancouver International Airport who had been in the PRC, Hong Kong or Macau in the 10 day period prior to traveling to the U.S.

Termination of the testing requirement for air travelers from these regions took effect on flights departing to the U.S. starting on March 10, 2023 at 3 pm ET.

BACKGROUND:

In 2022, the U.S. generally replaced testing requirements with vaccination requirements for international travelers.  The reintroduction of the testing requirement for travelers from China, Hong Kong, and Macau appears to have been a brief aberration.  As the U.S. continues to move toward lifting the COVID-19 Public Health Emergency, it remains to be seen whether vaccine requirements will remain in place for international air travelers. To date, the Biden administration as not signaled any change to the vaccination requirement.

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

On March 23, 2023, U.S. Citizenship and Immigration Services (USCIS) terminated its COVID-19-related policy extending deadlines to respond to USCIS notices.

WHAT THIS MEANS FOR EMPLOYERS AND FOREIGN NATIONALS

Starting in  March 2020, USCIS allowed petitioners and applicants 60 additional calendar days after the stated due date to respond to USCIS requests and notices.  That pandemic-driven flexibility ended on March 23, 2023, as previously signaled by USCIS.

Going forward, petitioners and applicants must respond to any notices or requests issued by USCIS after March 23, 2023 by the deadline listed on the notice or request. This includes:

• Requests for Evidence
• Notices of Intent to Deny, Revoke or Rescind
• Notices of Intent to Terminate EB-5 regional centers
• Notices of Intent to Withdraw Temporary Protected Status
• Motion to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

Additionally, parties wishing to file Form I-290B, Notice of Appeal or Motion,  or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), related to a decision dated after March 23, 2023 must comply with the deadlines set forth in the form instructions.

USCIS SIGNATURE FLEXIBILITY POLICY

As a reminder, reproduced signature flexibility on forms and documents is now permanent USCIS policy. Under the policy, USCIS will accept all benefit forms and documents bearing an electronically reproduced signature. Note that this is different than an electronic signature. The USCIS policy requires that  the document may be scanned, faxed, photocopied or similarly produced, provided that the copy is of an original document containing an original handwritten (or “wet”) signature.   The original signed form or document bearing the wet signature should be retained, as USCIS may request the original document at any time.

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

As previously forecasted, USCIS has now expanded  premium processing service to I-765, Applications for Employment Authorization, filed by certain F-1 students seeing work authorization in connection with Optional Practical Training (OPT).

Effective March 6, USCIS will accept Form I-907, Request for Premium Processing, filed by F-1 students who currently have an I-765,  Application for Employment Authorization pending with USCIS, provided the I-765 was filed in one of the following categories:

• (c)(3)(A): Pre-Completion OPT;
• (c)(3)(B):  Post-Completion OPT; or
• (c)(3)(C):  STEM OPT Extension (24 months).

The I-907 premium processing upgrade may be filed via paper submission or online.  Applicants wishing to submit an I-907 online must first create a USCIS online account. There is no fee to create the USCIS online account. The I-907 application fee is $1,500. The I-765 application will be adjudicated within 30 calendar days of receipt of the premium processing request or the premium processing fee will be refunded.

LOOKING AHEAD

Beginning April 3, USCIS will accept Form I-907, Request for Premium Processing, when submitted concurrently with the initial filing of the I-765 if the application is filed in one of  the above-referenced categories.

In May, USCIS expects to expand premium processing to certain F-1 students and J-1 exchange visitors with pending Form I-539, Applications to Extend/Change Nonimmigrant Status.

In June, USCIS expects to expand premium processing to F-1 students and J-1 exchange visitors filing initial Form I-539 applications.

Additional information from USCIS about premium processing upgrades and online filing is available here.

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

Bloomberg Law has reported that the U.S. Department of State intends to implement a pilot program this year that will allow certain nonimmigrants to renew their visas in the U.S., obviating the need to travel internationally to renew the visa at a U.S. consulate abroad.

A spokesperson for the State Department was quoted as indicating that stateside visa renewal will initially be offered to H and L visa holders, and may be expanded to other visa categories later.  A specific timeline for implementation of the pilot program has not yet been announced.

Background

The State Department previously offered stateside visa renewal, but stopped the practice in 2004 when  additional biometrics requirements were introduced.

In 2022, the American Immigration Lawyers Association advocated for re-introducing a domestic visa renewal program to address inefficiencies and delays in visa issuance.  Pandemic-related consular closures brought visa processing to a grinding halt, and significant backlogs ensued.  The subsequent easing of travel restrictions led to an uptick in travel and increased demand for visa appointments, further compounding  backlogs at the consulates.

Benefit to U.S.  Employers and  Nonimmigrant Workforce

Implementation of the stateside visa renewal pilot program will ease the demand for services at the U.S. consulates abroad, allowing consulates to allocate resources to  other visa issuing priorities.  But U.S. employers and their nonimmigrant workforce also stand to gain.

Domestic visa renewal will provide foreign nationals and their U.S. employers with  greater predictability around international travel and workforce planning.

Currently foreign nationals must renew expired visas while abroad in order to gain readmission to the U.S.  These individuals may be subject to significant delays in obtaining an appointment to secure a visa to return to the U.S.  Additionally,  after the application is lodged, the visa applicant may also be subject to significant processing delays at the consulates, including administrative processing, which can delay visa issuance by months.  The result is that employees become stranded abroad, unable to resume their employment in the U.S.   In some instances this results  in loss of employment in the U.S. and significant workforce disruption for the U.S. employer.

With the re-introduction of stateside visa renewals, nonimmigrant workers can more readily maintain a valid visa in their passport.  When urgent business or personal matters arise requiring unanticipated international travel, these individuals will be “travel ready” without the need to secure and attend a visa appointment while abroad, and their employers can be assured of their ability to return and resume their responsibilities in the U.S. without delay.

Gibney will continue monitor the implementation of the stateside visa renewal pilot program and will provide updates on the timing and protocols when available. For additional information, please contact your designated Gibney representative or email info@gibney.com.