USCIS INCREASES EMPLOYMENT AUTHORIZATION VALIDITY PERIOD FOR CERTAIN CATEGORIES

The USCIS updated its policy manual, regarding employment authorization documents (EADs), on September 27, 2023. The USCIS has increased the maximum validity period for EADs issued in many categories.

USCIS updated the maximum validity period for initial and renewed EADs to five years for the following categories: pending employment-based applications for adjustment of status (green card), refugees, granted asylum, granted withholding of deportation or removal, pending application for asylum or withholding of removal, and pending application for suspension of deportation or cancellation of removal.

USCIS updated the maximum validity period for initial and renewed EADs from one year to the end date of the authorized parole period, not to exceed 5 years, for those paroled as refugees.

USCIS also updated its policy manual to clarify that the Form I-94 can be used as both evidence of status and employment authorization incident to status for the following: Asylees, spouses of US citizens or children of such spouses (K-3 and K-4), victims of severe forms of trafficking in persons (T-1), spouses of E nonimmigrants (E-1S, E-2S, E-3S) with limited exceptions, spouses of L nonimmigrants (L-2S), and victims of qualifying criminal activity (U-1) and certain qualifying family members (U-2, U-3, U-4, and U-5).

This guidance is effective immediately and applies to EAD applications pending or filed on or after September 27, 2023.

POTENTIAL GOVERNMENT SHUTDOWN: HOW IT AFFECTS YOUR IMMIGRATION CASE

Unless Congress passes a spending bill in the coming week, the US government will shut down at midnight on Sunday, Oct. 1. However, not all immigration processes will halt immediately in light of a shutdown.

Immigration cases proceed through several different government agencies. A shutdown will affect certain agencies (and thus their processes) differently than others. 

What will Halt as of an Oct. 1 Shutdown 

DOL

Most significant to employment-based immigration cases, the Department of Labor (DOL) will not operate during a government shutdown.

Labor Condition Applications (LCAs), required for H-1B and E-3 filings, and Permanent Labor Certifications (PERMs), required for I-140 filings, cannot be drafted or filed during a government shutdown, and pending LCAs and PERMs will not be issued during a shutdown.

Further, the DOL confirmed to the American Immigration Lawyers Association (AILA) that the full FLAG online filing system will be disabled during a government shutdown. LCA and PERM records cannot be accessed online or printed from the FLAG system during a shutdown.

The DOL and MU recommend that all LCA and PERM filings be filed this week, prior to the potential shutdown. While LCAs typically take at least 7 days to be adjudicated by the DOL, the DOL indicated that it will attempt to adjudicate LCAs that are received this week prior to the potential shutdown.

Finally, the DOL may allow flexibility for employers who miss filing deadlines due to the government shutdown; if such guidance is issued, MU will update its blog accordingly.

What May Proceed after an Oct. 1 Shutdown?

USCIS

Cases that will be filed with or are currently pending with US Citizenship and Immigration Services (USCIS) will likely proceed without issue during a shutdown. In past shutdowns, USCIS has accepted late immigration filings that could not be timely filed due to the government shutdown.

DOS

Embassy services, such as visa appointments, are run by the Department of State and are also unlikely to be affected during a shutdown.

CBP

Entries to the US, including Canadian TN appointments, are handled by Customs and Border Patrol and are also unlikely to be affected by a shutdown.

If you are unclear how the shutdown will affect your case, clients are encouraged to contact their MU attorney for best strategies in the week ahead and during the potential government shutdown.

OCTOBER 2023 VISA BULLETIN

The Department of State has just issued the October 2023 Visa Bulletin, which is the first of the 2024 US fiscal year  This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

 

Employment- based	All Chargeability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	15FEB22	01JAN17	C	C
2nd	08JUL22	01OCT19	01JAN12	08JUL22	08JUL22
3rd	01DEC21	01JAN20	01MAY12	01DEC21	01DEC21

Table B: Dates of Filing

The USCIS is expected to use the Table B Dates of Filing chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

The most notable dates in the Visa Bulletin were the -1DEC21 dates for Philippine and All Other EB-3.  While these dates moved forward from last month’s May 2020 dates, many were hoping for progression at least in 2022.  MU Law believes that the State Department is acting conservatively, which while frustrating, may prove to ratchet down the anxiety around the monthly chart, and provide a better measure of processing times for those involved.  While no one likes a ~20 month retrogression, it may be wise.  We do expect these categories to steadily progress throughout the fiscal year pushing through 2022, and perhaps getting into 2023 before the end of the fiscal year.

India EB-3 and China EB-3 advanced by more than three years to May 1, 2012 (India), and by four months to January 1, 2020 (China), reflecting the slow but steady movement in those categories. 

India EB-2 progressed to January 1, 2012.  China EB-2 is now October 1, 2019.  The ROW EB-2 held basically even, advancing by just one week, to July 8, 2022.

USCIS UPDATES POLICY GUIDANCE FOR THE “SOUGHT TO ACQUIRE REQUIREMENT” UNDER THE CHILD STATUS PROTECTION ACT

As mentioned in a prior blog post, on February 14, 2023 USCIS updated its policy on the Child Protection Act (CSPA) age calculation for certain dependents nearing age 21 and filing for adjustment of status (I-485 or green card application).  The CSPA provides a method to calculate the dependent’s age based on the date an immigrant visa becomes available and to benefit from the calculation, the dependent must also take certain steps toward applying for the green card within one year of immigrant visa availability.  These required steps are known as the “sought to acquire requirement.” 

The USCIS has updated its Policy Manual to consider the February 14^th USCIS policy change as an extraordinary circumstance.  This is important because as an extraordinary circumstance, the February USCIS policy change may excuse an applicant’s failure to meet the “sought to acquire requirement.” 

The February 14^th policy change aims to benefit applicants who failed to meet the sought to acquire requirement and did not apply to adjust their status because their CSPA age was over the age of 21 under the old policy.  USCIS also clarified that it will consider dependents to have met the “sought to acquire requirement” if their respective applications to adjust status were pending on February 14, 2023 and submitted within 1 year of a visa becoming available based on the Final Action Dates chart and in accordance to the policy in effect at the time of the application.

For more information on this update, here are the links to the USCIS press release and respective policy alert.  If you think your dependent may benefit from this new policy, please reach out to your MU attorney.

AUTOMATIC 540-DAY EXTENSION OF CERTAIN EAD RENEWALS TO EXPIRE ON OCTOBER 26TH

The Temporary Final Rule (TFR) which USCIS issued on May 4, 2022 allowing for certain EAD renewals to qualify for an automatic extension of employment authorization of up to 540 days is set to expire on October 26, 2023.

Under current USCIS regulations, individuals who file a renewal application for their EAD qualify for an automatic extension of employment authorization of 180-days past their EAD expiration if the following requirements are met:

• A Form I-765 was properly filed to renew the current EAD prior to the expiration of the EAD;
• The renewal application is for a category eligible for automatic extension. For a list of all eligible EAD categories please refer to USCIS’s website.
• The category of the EAD matches the status indicated on the Receipt Notice of the pending I-765 renewal application.
• The Form I-765 has not been denied. Denial of the renewal application terminates the employment authorization provided by the automatic extension.

The TFR has provided a temporary benefit to individuals who meet the above requirements, expanding the automatic extension period for qualifying applicants whose Form I-765 is received on or before October 26, 2023.

Under the TFR, any qualifying renewal application filed on or before October 26, 2023, will gain the full benefit of the 540-day extension. Even applications received on October 26, 2023, will be provided with an additional 540-days of employment authorization beyond their EAD expiration.

From October 27, 2023, onward, any qualifying EAD renewals received by USCIS will be granted the typical 180-day extension.

USCIS LAUNCHES ONLINE APPOINTMENT REQUEST FORM

The U.S. Citizenship and Immigration Services (USCIS) has introduced a new online appointment request form, which allows individuals, attorneys, and accredited representatives to request an in-person appointment at a field office for ADIT stamps, Emergency Advance Parole, Immigration Judge Grants without having to call the USCIS Contact Center.

The newly launched online form is not a self-scheduling tool. Individuals may request a specific date and time for an in-person appointment, but the USCIS cannot guarantee that the requested appointment date will be scheduled.  The USCIS Contact Center will review submissions and the availability of in-person appointments at a specific field office. The USCIS will then confirm and schedule the individual for an available in-person appointment.

According to the USCIS, the online appointment request form aims to enhance the customer experience by collecting required information upfront and potentially scheduling the requested appointment without any further engagement with the USCIS Contact Center. However, the USCIS does state that the Contact Center may contact an individual either by phone or email depending on the appointment reason and urgency, using the information provided on the submitted request.

Webinar - H1Bs for Registered Nurses

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, August 22, 2023 from 2:00-3:00 pm Eastern (1:00-2:00 pm Central).

Join us for this FREE webinar to learn more about:

• H1Bs for Registered Nurses – Schedule A vs. H1B Timeline
• Registered Nurse Beneficiary Requirements
• Registered Nurse Position Requirements (BS in Nursing)
• H1Bs for Registered Nurses at Cap Exempt Institutions
• Staffing Companies vs. Direct Placement

PLEASE JOIN US!

Webinar - H1Bs for Registered Nurses

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, August 22, 2023 from 2:00-3:00 pm Eastern (1:00-2:00 pm Central).

 

Join us for this FREE webinar to learn more about:

• H1Bs for Registered Nurses – Schedule A vs. H1B Timeline
• Registered Nurse Beneficiary Requirements
• Registered Nurse Position Requirements (BS in Nursing)
• H1Bs for Registered Nurses at Cap Exempt Institutions
• Staffing Companies vs. Direct Placement

 

PLEASE JOIN US!

SEPTEMBER 2023 VISA BULLETIN

The Department of State has just issued the September 2023 Visa Bulletin.  This is the final Visa Bulletin of Fiscal Year 2023. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB	Worldwide	CHINA	INDIA	PHILIPPINES
1st	01AUG23	01FEB22	01JAN12	01AUG23
2nd	01JUL22	08JUL19	01JAN11	01JUL22
3rd	01MAY20	01SEP19	01JAN09	01MAY20
Other workers	01MAY20	01SEP15	01JAN09	01MAY20

Table B: Dates of Filing

The USCIS is expected to use the Table B Dates of Filing chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

As is often the case toward the end of the fiscal year, there was not much movement as the USCIS and DOS seek to use the remaining visas in the fiscal year.

EB-3 Other Workers, which is the category for occupations for most occupations, remains retrogressed to 01May2020.  This date, along with all categories, will not advance until October 1, 2023, with the start of the new fiscal year.  Our sense is that when the October 2023 visa bulletin is published, it will show an EB-3 (non-India and non-China) with a mid-2022 priority date.  However, because the Department of State is not forthcoming with their demand and usage data, please assume large error bars around our projection.

EB-2 advanced for all countries, except India and China, which may be good news for EB-2 in the next fiscal year.

Sometime during September, the DOS may announce that all immigrant visas have been used for FY 2023.  Rest assured that this is expected and will not have any bearing on the FY 2024 Visa Bulletin dates.

DOS PROPOSES RULE ON THIRD-PARTY ATTENDANCE AT CERTAIN APPOINTMENTS OVERSEAS

On July 26, 2023, the Department of State published in the Federal Register new rulemaking that would allow U.S. citizens abroad to be accompanied by an attorney, interpreter, and/or other third party when attending certain appointments at an Embassy or Consulate overseas, such as an appointment for a US passport, to Report of Birth Abroad, to request assistance in locating or assisting U.S. citizens, to request emergency medical assistance, crime victim assistance, amongst other selected services. 

The new rule makes it clear that individuals will bear any costs associated with the attendance of an attorney, interpreter, and that the representation or assistance by a third party or attorney does not excuse the applicant’s in-person appearance. 

The proposed rule affects 20 CFR parts 50, 51, and 71.  Public comments should be submitted by September 24, 2023.

Webinar - H1Bs for Registered Nurses

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, August 22, 2023 from 2:00-3:00 pm Eastern (1:00-2:00 pm Central).

 

Join us for this FREE webinar to learn more about:

• H1Bs for Registered Nurses – Schedule A vs. H1B Timeline
• Registered Nurse Beneficiary Requirements
• Registered Nurse Position Requirements (BS in Nursing)
• H1Bs for Registered Nurses at Cap Exempt Institutions
• Staffing Companies vs. Direct Placement

 

PLEASE JOIN US!

USCIS WILL SELECT A SECOND ROUND OF H-1B CAP REGISTRATIONS

The USCIS has announced in a News Alert that it will select a second round of H-1B registrations in the Fiscal Year 2024 H-1B Cap lottery (FY 2024 refers to CAP registrations filed in March 2023).

 

While there are only 85,000 H-1B cap-subject visas available each year, a staggering 758,994 registrations were entered into the H-1B lottery for FY2024. MU previously released a blog post on this announcement here.

 

The second round of selections indicates that not enough H-1B filings were submitted between April 1, 2023 and June 30, 2023 to meet the 85,000 H-1B CAP.

 

USCIS noted in its News Alert that it will announce once the second-round selection process is completed. Those with selected second-round registrations will have their or their attorney’s myUSCIS accounts updated to include a selection notice, which includes details of when and where to file.

Webinar - H1Bs for Registered Nurses

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, August 22, 2023 from 2:00-3:00 pm Eastern (1:00-2:00 pm Central).

 

Join us for this FREE webinar to learn more about:

• H1Bs for Registered Nurses – Schedule A vs. H1B Timeline
• Registered Nurse Beneficiary Requirements
• Registered Nurse Position Requirements (BS in Nursing)
• H1Bs for Registered Nurses at Cap Exempt Institutions
• Staffing Companies vs. Direct Placement

 

PLEASE JOIN US!

USCIS EXPANDS MYPROGRESS TO FORM I-765 AND FORM I-131

U.S. Citizenship and Immigration Services recently announced they will be expanding myProgress (formerly known as personalized processing times) to Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document. myProgress was previously available to applicants with an online USCIS account who had filed Form N-400, Application for Naturalization; Form I-90, Application to Replace Permanent Resident Card; or Form I-130, Petition for Alien Relative.

myProgress is a tool created by the USCIS to provide personalized estimates of wait times for “major milestones” on an applicant’s case. According to the USCIS, the estimated wait times are based on historical patterns of cases with similar facts. However, the USCIS did note that these wait times are not guaranteed, as the USCIS cannot take into consideration all possible processing delays.

To view estimated wait times via myProgress, applicants must first create a USCIS online account or log into their existing account and select their pending application. Applicants should see a myProgress tab, which displays the estimated wait time until their case has a decision. This tab will also display a check mark beside three milestones as they are completed:

• Confirmation that the application was received;
• Biometric services appointment (if required) has been completed; and
• The decision on the pending case.

myProgress will not provide information about the applicant’s eligibility to file an Outside of Normal Processing Time service request. To determine their eligibility, Applicants will still be required to visit the public Check Case Processing Times webpage.

WHAT DOES THE AUGUST RETROGRESSION MEAN FOR FUTURE PRIORITY DATES?

The retrogression cut-off in the EB3 category pushed back priority dates to 2020.  While a retrogression is never great news, this retrogression is not as dramatic as it might seem at first look.  Our sense is that when the October 2023 visa bulletin is published, it will show an EB-3 (non-India and non-China) with a mid-2022 priority date.  However, because the Department of State is not forthcoming with their demand and usage data, please assume large error bars around our projection.

A significant retrogression of priority dates is common nearly every summer.  Visa numbers began to run out toward September 30, which is the end of the fiscal year.  The DOS is trying to use the last of the 140,000 annual employment-based visas in September.  (Note- in some years the employment-based visa quota is greater than 140,000).  While the DOS could theoretically release all 140,000 immigrant visas on October 1 every year, they do not do this so that there is a steady stream of immigrant visas throughout the year.

In October an additional 140,000 EB visas will be allocated, which is why we expect the dates to progress again.  Again, it is difficult to be too precise with an October 2023 EB-3 projection because we do not know too much about the DOS’ demand and usage data.

AUGUST 2023 VISA BULLETIN: NO MORE VISAS

The Department of State just issued the August 2023 Visa Bulletin. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	01AUG23	01FEB22	01JAN12	01AUG23	01AUG23
2nd	01APR22	08JUL19	01JAN11	01APR22	01APR22
3rd	01MAY20	01JUN19	01JAN09	01MAY20	01MAY20

USCIS

The USCIS is expected to use Table A: Final Action Dates chart for I-485 employment-based filings. A Beneficiary must be current on the above Table A chart to file their I-485, Adjustment of Status applications. See: USCIS Visa Bulletin Dates

MU Law Analysis

As we explained last month, the DOS has almost exhausted all employment-based visas for FY 2023.  As a result, almost all categories retrogressed will retrogress even further in August, essentially ending visa issuance until the start of the next fiscal year on October 1, 2023.  There were some slight improvements in the Chinese dates probably reflecting strained US-Chinese relations and decreased demand related to COVID in the 2019-2022 time frame.

These EB-3 retrogressions mean that the USCIS and DOS overextended priority dates earlier in the year and did not see the demand for the visa numbers that were there.

The Visa Bulletin includes a Note about EB-3s, indicating that the demand exceeded the expectation.  Accordingly, MU does not expect any progression in EB-3 for the rest of the fiscal year.

Even the EB-1 dates were retrogressed, including the Indian date by 10 years.  The Visa Bulletin does say that the Indian EB-1 dates should return to at least February 2022 at the start of the next fiscal year.

USCIS EXPANDS PREMIUM PROCESSING FOR CHANGE OF STATUS APPLICATIONS TO F, M, OR J NONIMMIGRANT STATUS

USCIS announced that applicants filing Form I-539 seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status can now request premium processing on Form I-907 based on the following schedule:

• Effective June 13, USCIS now accepts I-907 requests filed via paper form or online for F, M, or J applicants with a pending I-539;
• Starting June 26, USCIS will accept I-907 requests filed together with I-539 applications seeking F, M, or J status;

This expanded premium processing is only available for change of status requests.  The I-907 request must be submitted in the same manner as the I-539 application, either online or snail mail.  The premium processing clock will start only once all I-539 applicants have completed biometrics.

The premium processing fee for F, M, and J change of status applicants is $1,750 and the processing time is 30 days.