Tag: Immigration

Effective January 25, 2023, USCIS resumed concurrent processing of  I-539 applications to extend/change nonimmigrant status  and I-765 applications for employment authorization filed by H-4 and L-2 spouses and minor children when the applications are filed with the principal H or L visa holder’s I-129 petition for nonimmigrant worker.

To benefit from the policy, the I-129, I-539, and I-765 applications must be properly filed at the same USCIS Service Center at the same time.  If filed concurrently, all of the applications will be adjudicated together, regardless of whether filed under regular or premium processing service.

This reversal in USCIS policy is the result of a settlement agreement with the Department of Homeland Security in Edakunni v. Mayorkas,  a class action law suit that challenged H-4 and L-2 adjudication delays. These delays left many L-2 and H-4 spouses and minor children in status limbo and spouses without work authorization, even after the principal visa holder’s petition was approved.

Prior to 2019,  L-2 and H-4 dependent applications were  generally adjudicated concurrently with the principal visa holder’s  petition, but policies implemented by the Trump Administration, hostile to spousal work authorization, derailed adjudications, resulting in significant processing delays and loss of work authorization for many H-4 and L-2 spouses.

The commitment  to once again bundle the adjudication of the applications essentially returns USCIS to its pre-2019 adjudication practice.  The Edakunni settlement agreement is valid for two years.

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

U.S. Citizenship and Immigration Services (USCIS) further expanded  premium processing for Form I-140, Immigrant Petitions for Alien Workers, marking the final phase of implementing premium processing for employment-based immigrant petitions.

Effective January 30, 2023, premium processing will be available for the following petitions:

• All I-140 petitions filed on behalf of multinational executives and managers (EB-1(3) classification), including pending petitions and initial filings.
• All I-140 petitions for persons seeking a National Interest Waiver (EB-2(1) NIW classification), including all pending petitions and initial filings.

HOW TO APPLY

Petitioners who wish to request premium processing must file the 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.

WHAT’s NEXT?

USCIS will expand premium processing service offerings to additional benefits, as follows:

• March 2023: F-1 students seeking OPT and F-1 students seeking STEM OPT extensions who have a pending Form I-765, Application for Employment Authorization.
• April 2023: F-1 students seeking OPT and F-1 students seeking STEM OPT extensions who are filing an initial Form I-765, Application for Employment Authorization.

USCIS expects to announce the specific effective date for the above-referenced categories in February.

LOOKING AHEAD

USCIS intends to expand premium processing service to the following applications:

• May 2023: Certain F-1 students and J-1 exchange visitors with pending Form I-539, Application to Extend/Change Nonimmigrant Status.
• June 2023: F-1 students and J-1 exchange visitors filing initial Form I-539 applications.

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

Gibney will continue to provide premium processing service updates as USCIS expands its offerings. If you have any questions, please contact your designated Gibney representative or email info@gibney.com.

U. S. Citizenship and Immigration Services (USCIS) will conduct its annual electronic registration process for the Fiscal Year (FY) 2024 H-1B cap in March 2023. Employers should start planning for cap registration now by identifying foreign nationals they intend to register for the H-1B cap lottery.

OVERVIEW

• Cap-subject U.S. employers intending to sponsor foreign nationals for H-1B status must first register each intended beneficiary electronically with USCIS during the cap registration period held in March.
• The current cap registration fee is $10 for each individual registered. The fee is solely for registration of the intended beneficiary.
  • The fee is not refunded if the registration is not selected, and it is not applied to the H-1B petition filing fee if a petition is ultimately filed for a selected beneficiary.
  • Note: USCIS has issued a proposed rule that, if implemented, will increase the registration fee substantially. However, the rule is not expected to be finalized and implemented before this year’s registration period.
• The number of registrations submitted are expected to exceed the number of H-1B visas available under the annual statutory quota.
• As in previous years, there will be a random selection process once the initial registration period closes in March.
• After USCIS conducts the random selection process, it will notify employers of selected beneficiaries. Employers may only sponsor H-1B cap petitions for individuals selected through the registration process; no substitution of beneficiaries is permitted.
• After registration selection, employers will have a 90-day period during which they may file H-1B cap petitions for selected beneficiaries.
• The 90-day H-1B cap petition filing period is expected to start no later than April 1, 2023.
• If by the end of the first filing window (June 30, 2023) USCIS has not received enough H-1B petitions to reach the annual quota, USCIS may conduct a second lottery from the pool of previously unselected registrations. USCIS will then designate subsequent filing periods until all H-1B visas are allocated to reach the annual statutory quota.

HIGHLIGHTS

• In completing the registration, employers must identify whether the intended beneficiary qualifies for the H-1B visa pursuant to either the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher in a field of study related to the offered position) or the standard H-1B cap (reserved for individuals holding a Bachelor’s degree or higher in a field of study related to the offered position).
• Employers may register multiple individuals at once, using a single online “batch” submission.
• Employers may only submit one registration per intended beneficiary in any fiscal year. If an employer registers an individual more than once in the same fiscal year, all registrations submitted by that employer for that individual will be invalidated.
• The employer’s authorized legal representative may prepare and submit cap registrations for the employer.

WHAT SHOULD EMPLOYERS DO NOW?

Employers should work with legal counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S., and to take appropriate steps to ensure timely online registration of identified candidates.

Potential beneficiaries for H-1B cap registration include, but are not limited to:

• New hires or candidates outside the U.S. who do not currently hold a valid U.S. work visa
• F-1 students completing a qualifying course of study or F-1 students currently working in the U.S. pursuant to Optional Practical Training (OPT) or STEM OPT
• J-1 interns/trainees who are currently working in the U.S. pursuant to a DS-2019 exchange visitor program
• L-1, TN, E-1, E-2, E-3, O-1, and/or other nonimmigrant visa holders who wish to change to H-1B status in the future
• Dependent spouses of current nonimmigrant visa holders who may lack work authorization

ADDITIONAL INFORMATION

Not All H-1B Petitions are Subject to the Cap
Certain individuals and employers are not subject to the annual H-1B cap or cap registration, including:

• Individuals who currently hold H-1B status and who were previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not again subject to the annual cap. This may include petitions:
  • to extend status for current H-1B visa holders;
  • to amend H-1B status due to changes role or location changes for current H-1B workers;
  • to change H-1B employers; and,
  • for concurrent H-1B employment with an additional employer.
• Individuals who are citizens/nationals of Singapore and Chile may instead be eligible for the H-1B1 visa.
• Cap exempt organizations. H-1B cap petitions filed for employment at institutions of higher education or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations, are cap-exempt. H-1B petitions for employment at these institutions are not subject to an annual quota and may be filed any time throughout the year.

H-1B Categories and Annual Quotas

Cap-subject H-1B petitions generally fall within two categories:

• “Standard” petitions. The minimum educational requirement for a standard H-1B petition is a Bachelor’s degree or professionally evaluated experience equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
• “Advanced degree” or “Master’s cap” petitions. The minimum educational requirement for an advanced degree H-1B petition is a Master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

Historical H-1B Cap Statistics

In FY 2023

• USCIS received 483,927 H-1B cap registrations.
• Approximately 31% of registrations were submitted under the advanced degree cap.
• Over 48,000 prospective U.S. employers submitted an H-1B cap registration on behalf of an intended beneficiary.
• USCIS conducted only one random selection process after the March registration period, initially selecting 127,600 registrations, which proved enough to reach the annual quota.

In FY 2022

• USCIS received 308,613 H-1B cap registrations.
• Approximately 48% of registrations were submitted under the advanced degree cap.
• Over 37,000 prospective U.S. employers submitted an H-1B cap registration on behalf of an intended beneficiary.
• USCIS conducted three rounds of selections (in April, August, and November 2021) to reach the annual quota.

USCIS will announce specific dates for the March registration period  in the weeks ahead.     Gibney will also provide updates as they are announced. In the interim, additional information is available here.

If you have questions about H-1B cap or if you require assistance with cap registration, please contact your Gibney representative or email info@gibney.com.

U.S. Citizenship and Immigration Services (USCIS) continues to extend certain COVID-19-related flexibilities through Jan. 24, 2023.

What This Means for Employers and Foreign Nationals

Under this policy, petitioners and applicants have 60 additional calendar days after the due date to respond to USCIS requests and notices issued between March 1, 2020 and Jan. 24, 2023, including:

• 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

For USCIS decisions issued between Nov. 1, 2021, and Jan. 24, 2023, applicants will have 90 additional calendar days from the date of decision notice to file a Form I-290B appeal or motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings.

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.

The U.S. Centers for Disease Control (CDC)  announced it will  reinstate COVID testing requirements for all travelers from the People’s Republic of China (PRC) effective January 5, 2023 at 12:01 AM ET. Impacted travelers must present a negative COVID -19 test result to the airlines to board flights to the U.S.. as of the effective date.

Who is Impacted?

• Air travelers  2 years of age and older traveling to the U.S. with flights originating in the PRC and the Special Administrative Regions of Hong Kong and Macau
• Travelers with flights to the U.S.  originating  from  Seoul’s Incheon International Airport, Toronto’s Pearson International Airport, and Vancouver International Airport who have been in the PRC, Hong Kong or Macau in the 10 day period prior to traveling  to the U.S.
• Individuals who are traveling to the U.S.  from the PRC via third country transit and passengers connecting through the U.S. onward to further destinations
• The testing requirement applies regardless of nationality,  citizenship status, or vaccination status.

What is Required?

• Travelers must present a negative COVID -19 test result such as a PCR test or an antigen self-test to the airlines to board flights to the U.S.
• The test must be taken no more than two days before the flight departs for the U.S.
• Travelers who had COVID-19 in the 90 days before their travel to the U.S. can instead show documentation of recovery from COVID-19.
• Airlines must either confirm the negative COVID-19 test result or documentation of recovery for all passengers before the passenger boards or deny boarding to the passenger.
• For a list of authorized tests, check here.

Background:

The reinstatement of the testing requirement for travelers from China comes as something of a surprise. Earlier this year, the  U.S. generally replaced testing requirements with vaccination requirements for international travelers. In reinstating the testing requirement for travelers from China, the CDC indicates it is taking this step to slow the spread of COVID-19 stemming from a  surge in COVID cases in the PRC along with concerns over the lack of adequate epidemiological data being reported from the PRC, and the potential emergence of novel variants. The CDC will continue to monitor the situation and adjust its approach as necessary.

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

 

The U.S. Department of Homeland Security (DHS) has extended a policy providing employers with flexibility in meeting certain Form I-9 Employment Verification requirements through July 31, 2023.  The policy relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person”.

Who Does the Policy Affect?

Form I-9 in-person inspection rules continue to be relaxed for any U.S. employer who converted to a total remote working schedule for all employees due to COVID-19. If there are employees physically present at a work location, there are no exceptions to the in-person verification of identity and employment eligibility documentation for Form I-9.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.

As a general matter for remote workers, a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person within three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

The relaxed rules for qualifying employers with a total remote workforce will remain in place until July 31, 2023.

Gibney is closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.

The Department of State released the January 2023 Visa Bulletin.

• As predicted, the EB-1 category for China and India has retrogressed.
• The Final Action dates and Dates for Filing for Worldwide, Indian and Chinese nationals in the EB-2 and EB-3 categories held steady.
• USCIS confirmed that it will follow the Dates for Filingchart published on the January 2023 Visa Bulletin for purposes of eligibility to file adjustment of status applications.

EMPLOYMENT-BASED DATES FOR FILING FOR ADJUSTMENT OF STATUS APPLICATIONS

The January 2023 Dates for Filing for the employment-based preference categories are as follows:

EB-1, First Preference Category

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current for all countries except for China and India.
• China: The cut-off Date for Filing is June 1, 2022.
• India: The cut-off Date for Filing is June 1, 2022.

EB-2, Second Preference Category

• The Worldwide cut-off Date for Filing of December 1, 2022 held steady.
• China: The cut-off Date for Filingremains July 8, 2019.
• India:  The cut-off Date for Filingremains May 1, 2012.

EB-3, Third Preference Category (Skilled Workers)

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current in January.
• China’s cut-off Date for Filing held steady at September 1, 2018.
• India’s cut-off Date for Filing held steady at August 1, 2012.

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.

EMPLOYMENT-BASED FINAL ACTION DATES

While an individual may file an adjustment of status application in January using the dates for filing summarized above, an individual’s green card application may not be approved until the priority date is available under the Final Action Dates, also posted on the January 2023 Visa Bulletin. The final action dates may differ significantly from the dates for filing, depending on the preference category and country of birth. The January 2023 Final Action Dates are as follows:

EB-1, First Preference Category

• Worldwide (all countries except China and India): Current
• China: February 1, 2022
• India: February 1, 2022

EB-2, Second Preference Category

• Worldwide (all countries except China and India): steady at November 1, 2022
• China: steady at June 8, 2019
• India:  steady at October 8, 2011

EB-3 Third Preference Category (Skilled Workers)

• Worldwide (all countries except China and India): Current
• China: steady at August 1, 2018
• India: stead at June 15, 2012

EXPECTATIONS FOR THE NEW YEAR

As forecasted in our Fiscal Year 2023 visa availability analysis, we are now seeing the retrogression for Indian and Chinese nationals in the EB-1 category. To date, there has not been further retrogression for Chinese and Indian nationals in the EB-2 and EB-3 categories, as the Dates for Filing and Final Action Dates remain the same.  However, the Department of State will continue to monitor the demand for visas in these categories, and make adjustments accordingly in the  months ahead.

For additional information about the Visa Bulletin or immigration matter generally, 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.

The U.S. Department of Homeland Security (DHS) has extended a policy providing employers with flexibility in meeting certain Form I-9 Employment Verification requirements through July 31, 2023.  The policy relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person”.

Who Does the Policy Affect?

Form I-9 in-person inspection rules continue to be relaxed for any U.S. employer who converted to a total remote working schedule for all employees due to COVID-19. If there are employees physically present at a work location, there are no exceptions to the in-person verification of identity and employment eligibility documentation for Form I-9.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.

As a general matter for remote workers, a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person within three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

The relaxed rules for qualifying employers with a total remote workforce will remain in place until July 31, 2023.

Gibney is closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.

The Department of State has extending the authority of consular officers to waive in-person interviews for certain nonimmigrant visa categories through December 31, 2023. In its announcement the  State Department highlighted its commitment to further reducing visa wait times in order to facilitate travel o the U.S.

Who is Eligible for the Visa Interview Waiver?

Consular officers are authorized to continue to waive in-person interviews on a case-by-case basis for certain first-time applicants and/or renewing applicants in the following visa categories:

• Temporary Agricultural and Non-Agricultural Workers (H-2 visas)
• Students (F and M visas)
• Academic Exchange Visitors (academic J visas)
• Certain beneficiaries of approved petitions for nonimmigrant temporary worker status including  H-1B, H-3, L-1, O, P and Q visas, and qualifying dependent beneficiaries.

Authorization to waive in-person interviews for applicants renewing a visa in the same classification within 48 months of the prior visa’s expiration will also remain in place until further notice.

Applicants must have been previously issued any type of visa, must never have been refused a visa unless such refusal was overcome or waived, and must have no apparent or potential ineligibility for the visa.

What Employers and Foreign Nationals Can Expect

• Interview waiver policies help to reduce backlogs and visa appointment wait times  by freeing up consular staff to conduct in-person interview appointments for applicants who require an interview. The State Department noted that nearly half of nonimmigrant visas  issued in Fiscal Year 2022 were adjudicated without an in-person interview.
• Embassies and consulates may still require an in-person interview on a case-by-case basis, and dependent upon local conditions.

Applicants are encouraged to check embassy and consulate websites frequently for developments and visa application protocols, as well as current operating status and services, by visiting the Bureau of Consular affairs travel site.