JUNE 2022 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2022 Visa Bulletin.  This is the ninth Visa Bulletin of Fiscal Year 2022. 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	C	C	C	C
2nd	C	01MAR19	08JUL13	C
3rd	C	22MAR18	15JAN12	C
Other workers	08MAY19	01JUN12	15JAN12	08MAY19

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

You will notice that we have added another row, Other Workers.  These are EB-3’s for occupations that require less than two years of education or experience to perform the job.  Among healthcare occupations, there are most commonly nurse aides.  The retrogression to 08May2019 probably reflects full usage of this category in this fiscal year.

For the other categories, we saw exceptional news for India EB-2, which advanced a full year.  All EB-1, along with Worldwide and Philippine EB-3 remained current.  We do expect a retrogression of WW and Philippine EB-3 before the end of the fiscal year.  This is common, as we have explained in the past.

EB-3 India and EB-3 China will remain unchanged from May.  We do not expect forward progress in these categories for the rest of the fiscal year.

USCIS ANNOUNCES INCREASES AUTOMATIC EXTENSION PERIOD FOR CERTAIN EADS

Beginning May 4, 2022, the USCIS’s automatic extension period for certain EAD categories will temporarily increase from 180 days to up to 540 days.

This is a welcomed change in policy as many EAD extension petitions currently take more than 180 days to be adjudicated. Under the previous policy, an EAD holder was forced to stop working if the extension petition was not approved within the 180 days automatic extension period. Increasing the automatic extension period to up to 540 days will provide relief to many EAD holders and help prevent gaps in employment.

The automatic extension only applies to certain categories of EAD holders who timely file an extension petition before the expiration of their previous EAD. This includes H4 EAD holders with a valid I-94 and green card applicants. A full list of qualifying categories can be found on USCIS’s website.

Unfortunately, OPT-based EADs and applicants changing the category their EAD is authorized under are not eligible for the automatic extension.

The increased automatic extension period will end on October 26, 2023.

SEVP’S DISTANCE LEARNING GUIDANCE EXTENDED FOR 2022-23 ACADEMIC YEAR

In a Broadcast Message, the Student and Exchange Visitor Program (SEVP) has announced it will extend its guidance originally issued in March 2020 for the 2022-23 academic year.

SEVP has also extended the guidance in its FAQs for SEVP Stakeholders about COVID-19 to the 2022-23 academic year.

Thus, the following allowances for continuing and new nonimmigrant students will be extended for the 2022-23 academic year:

•     Continuing Students

o Nonimmigrant students who were in valid F-1 or M-1 nonimmigrant status on March 9, 2020 are permitted to engage in either a hybrid or fully online program of study beyond the regulatory limit for the 2022-23 academic year, provided they have not otherwise violated the terms of their nonimmigrant status. 

•       Initial Students

o  New or initial nonimmigrant students who were not enrolled in a program of study on March 9, 2020 will not be able to enter the United States as a nonimmigrant student for the 2022-23 academic year if their course of study is fully online.

o   A new student is, however, permitted to engage in a hybrid program with some requirement for in-person learning, even with online components beyond the regulatory limit, for the 2022-23 academic year.

SEVP’s current policy guidance and frequently asked questions can be found online at https://www.ice.gov/coronavirus

USCIS RECEIVES 483,927 H-1B CAP REGISTRATIONS

USCIS announced that it has received 483,927 H-1B cap registration during the March 2022 filing period, including petitions filed for the advanced degree exemption. 

This is substantially more than the 308,613 received last year (March 2021, FY 2022).  It is also far more than the 275,000 during the March 2020 (FY 2021) filing period and 201,000 H-1B petitions received during the March 2019 (Fiscal Year 2020) filing period.

USCIS has notified H-1B cap lottery winners.  H-1B winners have until June 30, 2022 to submit their full H-1B cap petition to the USCIS for adjudication. 

As has been the case since the launch of the on-line registration system in March 2020, the USCIS will continue to update the H-1B cap winners list.  Additional winners may be selected in subsequent rounds until March 2023. USCIS is not expected to notify any H-1B lottery entrants of non-selection until all 85,000 H-1B cap approval notices have been issued.

 

SEONTOSA CARE SETTLES $3M CLASS ACTION

Sentosa Care agreed to pay $3 million to settle a lengthy class action case that has endured for five years, reports Skilled Nursing News.  This $3 million settlement extinguishes all claims for the 150 class members, including their TVPA violations.

In 2021, a federal judge found that Sentosa was liable for $1.56 million, plus interest and the risk of additional damages.  The TVPA violations were novel in nurse staffing cases.  Ordinarily courts allow damage clauses to be inserted into employment contracts.  However here, the federal judge found that the clause represented a threat to continue employment because a prior court had found Sentosa’s damage clause was unenforceable, allowing the TVPA claim to continue.  Sentosa has now settled all claims associated with the case.

Sentosa’s involvement in litigation is often unusual.  In March 2022, Reuters reported that remnants of a 2006 case continue to circulate throughout the federal court system.  As MU Law discussed in 2010,

In 2006, eleven Philippine nurses employed at a Suffolk County, Long Island nursing home walked off their positions because of alleged bad working conditions. This mass resignation set off a chain of lawsuits [including one where the nurses] filed a federal civil rights lawsuit against . . . the Suffolk County District Attorney’s office.

The March 2022 Reuters report says that a 2-1 federal appeals court has now held that the Suffolk County DA’s office is immune from this lawsuit.  One wonders if this ends this 16 year litigation.

MAY 2022 VISA BULLETIN: ANALYIS AND PREDICTIONS

The Department of State has just issued the May 2022 Visa Bulletin.  This is the eighth Visa Bulletin of Fiscal Year 2022. 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	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01MAR19	08JUL13	C
3rd	C	22MAR18	15JAN12	C

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 EB dates stayed more or less static from the prior month, although India EB-2 advanced by 2 months, which should continue to allow additional long-delayed Indian nationals to apply for their green cards.  India EB-2s Dates of Filing also progressed to December 1, 2014.  All other Indian and Chinese EB-1, 2 and 3 dates remained as they were in April.

The news remained positive for Philippines and Worldwide EB-3, where dates held at Current. 

H-1B LOTTERY COMPLETE

USCIS has announced that it has received more than 85,000 registrations during the registration period to reach the fiscal year (FY) 2023 H-1B cap.  The annual H-1B limit is 85,000, which is the H-1B cap.  Accordingly, the USCIS processed the H-1B lottery.  Musillo Unkenholt has begun the process of notifying our clients who are H-1B lottery winners that they are eligible to file an H-1B cap-subject petition.

H-1B cap-subject petitions for FY 2023 may be filed with USCIS beginning April 1, 2022 through June 30, 2022. 

Please keep in mind that “winning” the lottery does not guarantee an H-1B approval.  Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still establish eligibility for petition approval at the time the petition is filed and through adjudication, based on existing statutory and regulatory requirements.

In past years, the USCIS has not received enough H-1B cap petitions during the April 1-June 30 period to meet the 85,000 H-1B annual limit.  If this happens this year, USCIS will conduct subsequent lottery selections until it has approved 85,000 H-1B petitions.

USCIS POLICY ALERT: DOCUMENTATION OF EMPLOYMENT AUTHORIZATION OF CERTAIN E AND L SPOUSES

On March 18, 2022, USCIS issued a Policy Alert, and updated its Policy Manual accordingly, to apprise certain spouses of E and L nonimmigrants how the USCIS plans to verify their employment authorization.

As of November 12, 2021, USCIS has indicated that certain E-1, E-2, E-3 and L-2 nonimmigrant dependent spouses will be granted employment authorization incident to status.  

 In its updated Policy Alert on the issue, USCIS indicates that:

• As of January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Forms I-94 with the following new Class of Admission (COA) codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S.

An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form I-9.

• For E and L spouses with Forms I-94 issued by USCIS prior to January 30, 2022 (with notations E-1, E-2, E-3, E-3D, E-3R, or L-2), USCIS will mail a notice regarding the new COA codes that, together with an unexpired Form I-94 reflecting E-1, E-2, E-3 E-3D, E-3R, or L-2 nonimmigrant status, may serve as evidence of employment authorization under List C of Form I-9.

USCIS intends to begin mailing notices on or about April 1, 2022.

USCIS ENCOURAGES ELIGIBLE INDIVIDUALS TO FILED I-485S IN THE EB-2 INDIA CATEGORY BASED ON THE APRIL VISA BULLETIN

The recently published April Visa Bulletin advanced the Date for Filing, or Chart B, for the employment-based, second preference (EB-2) category for India a whole year, to September 1, 2014. In addition, USCIS also updated its website to reflect that foreign nationals may use this Date for Filing, or Chart B, date in applying for adjustment of status.

With this publication, USCIS released a statement encouraging those eligible to apply under EB-2, to go ahead and apply. In conjunction with this recommendation, USCIS is also encouraging eligible applications to request to transfer pending adjustment of status cases to EB-1 or EB-2 categories if they meet the following criteria:

1.   A visa is unavailable to them in the EB-3 category;

2.   They have a pending or approved Form I-140; and

3.   A visa is available in the EB-1 or EB-2 category.

If you have any questions regarding your eligibility for the above benefits, please reach out to your MU attorney. The full USCIS statement on this topic is available here.

APRIL VISA BULLETIN: FUTURE EB-3 RETROGRESSION?

The Department of State has just issued the April 2022 Visa Bulletin.  This is the seventh Visa Bulletin of Fiscal Year 2022. 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	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01MAR19	08JUL13	C
3rd	C	22MAR18	15JAN12	C

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 chart stayed similar to the past month’s Visa Bulletin.  One bright spot was that India EB-2 moved ahead by 2+ months, which should allow additional long-delayed Indian nationals to apply for their green cards.  Unfortunately, China EB-2, India EB-3, and China EB-3 stayed the same. 

The news remained positive for Philippines and Worldwide EB-3, where dates held at Current.  However, there is one important note at the end of this month’s Visa Bulletin, which bears watching in future months, as it would affect both Philippines and Worldwide EB-3,

F. AVAILABILITY OF EMPLOYMENT THIRD PREFERENCE “OTHER WORKERS” (EW) NUMBERS

High number use in the Employment Third Preference “Other Workers” (EW) category may necessitate the establishment of a worldwide final action date as early as June to hold number use within the maximum allowed under the Fiscal Year 2022 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

H-1B CAP LOTTERY DEADLINE – FRIDAY, MARCH 18, 2022

The USCIS’s annual H-1B Cap lottery registration window will close on Friday, March 18, 2022 at noon Eastern. All entries into the Fiscal Year 2023 lottery must be submitted by noon Eastern on Friday, March 18, 2022 to be registered and eligible for selection.

Musillo Unkenholt encourages registering all candidates as soon as possible to avoid any technical issues or delays.

If an employer has candidates they would like to enter into the lottery, the employer should reach out to their Musillo Unkenholt attorney as soon as possible.

The USCIS intends to notify registrants selected in the first round of the lottery by March 31, 2022. The USCIS is expects to conduct multiple rounds of selection until it reaches the 85,000 H-1B quota. Registrants not selected by March 31 may still be selected during a later ro    und.

USCIS REACHES H-1B CAP FOR H-1B CAP CASES FILED IN LAST YEAR’S H-1B CAP LOTTERY (FISCAL YEAR 2022)

On February 28, 2022, USCIS announced that they received a sufficient number of petitions to reach the 65,000 H-1B regular cap and 20,000 H-1B master’s cap, for fiscal year 2022 (October 2021 to October 2022).  It is important to note, this announcement is for registrations submitted in March 2021.  New registrations for fiscal year 2023 (October 2022 to October 2023) can be submitted.

For all non-selected cases, the attorney of record and petitioner should have received a non-selection notification through the registration on the USCIS website. The status for registrations properly submitted, but not selected, will state: Not Selected: not eligible to file an H-1B cap petition based on this registration.

USCIS will continue to accept H-1B cap exempt petitions and H-1B petitions for workers that have previously been counted against the cap.

DEPARTMENT OF HOMELAND SECURITY PROPOSES NEW PUBLIC CHARGE RULE

The DHS has proposed a new “fair and humane” Public Charge rule meant to clarify its existing policy. The proposed rule is very similar to the current policy, but refines the forms of aid considered under the test.

Unlike the DHS’s 2019 attempt to enact a Public Charge rule intended to restrict immigration, the new proposal should not create additional hurdles for immigrants. Under the new proposal, only four specific forms of public assistance would be considered in a Public Charge determination:

• Supplemental Security Income (SSI);
• Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program;
• State, Tribal, territorial, and local cash assistance for income maintenance; and
• Long-term institutionalization at government expense. 

The DHS specifically excludes from the proposed rule:

• Supplemental Nutrition Assistance Program (SNAP);
• Children’s Health Insurance Program;
• Most Medicaid benefits (except for long-term institutionalization at government expense;
• Housing benefits;
• Transportation vouchers;
• Disaster assistance received under the Stafford Act;
• Pandemic assistance;
• Benefits received via a tax credit or deduction;
• Social Security, government pensions, or other earned benefits.   

Additionally, specific categories of noncitizens would be exempted from public charge ground inadmissibility under the proposed rule, including:

• Refugees and asylees;
• TPS;
• Special immigration juveniles;
• T and U nonimmigrant;, and
• Self-petitioners under the Violence Against Women Act (VAWA).

USCIS ISSUES GUIDANCE ON FILING REQUEST FOR “TRANSFER OF UNDERLYING BASIS”

Following its recent News Alert urging eligible applicants to switch employment-based categories, USCIS has issued guidance via its “Green Card for Employment-Based Immigrants” webpage on filing a request to transfer the underlying basis of an eligible Adjustment of Status application from the third preference category to the first or second. 

USCIS may, in its discretion, grant a transfer request if the following criteria are met:

• You have continuously maintained eligibility for adjustment of status;
• Your adjustment of status application based on the original Form I-140 is still pending;
• You are eligible for the new immigrant category; and
• You have a visa immediately available in the new immigrant category.

Filing Requirements

Any request to transfer underlying basis must be made in writing.

Certain requests to transfer underlying may also require a completed Supplement J to confirm the validity of the job offered.

New Filing Location

USCIS has created a new centralized location for receipt of transfer requests that are accompanied by a Supplement J.

Additional Guidance from USCIS

• Submitting a new adjustment of status application is not required to transfer the underlying basis of a pending Form I-485 and will not result in faster adjudication of the benefit request.
• If requesting a transfer of underlying basis through the new address, medical examination forms should NOT be submitted with the request. 
• If USCIS grants a request to transfer the underlying basis of your Form I-485 to a different employment-based category, the transfer request resets the 180-day clock for eligibility for the portability provisions of the American Competitiveness in the Twenty-First Century Act.

Clients are encouraged to contact their MU attorney regarding any request for Transfer of Underlying Basis to ensure that this type of filing is handled properly.

MARCH 2022 VISA BULLETIN: ANALYIS AND PREDICTIONS

The Department of State has just issued March 2022 Visa Bulletin.  This is the sixth Visa Bulletin of Fiscal Year 2022. 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	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01MAR19	01MAY13	C
3rd	C	22MAR18	15JAN12	C

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

India EB-2 moved ahead by four months, which should allow some long-delayed Indian nationals to apply for their green cards.  Unfortunately, India EB-3 did not move ahead.  There was a note at the end of this month’s bulletin that says that if EB-5 demand emerges, the surplus of extra visas that has been flowing into India EB-2 will disappear.  This may result in a retrogression of India EB-2 in future months.

The news remains positive for Philippines and Worldwide EB-3, where dates held at Current.  They are expected to stay Current for the foreseeable future.

China’s EB-2 and EB-3 numbers remain unchanged for March 2022.  We expect low to no progress in these categories for the rest of FY 2022.