Wednesday, March 22, 2023

APRIL 2023 VISA BULLETIN: ANALYSIS AND PREDICTION

The Department of State recently issued the April 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. 

 

EB 

All Other 

CHINA 

INDIA 

PHILIPPINES 

1st 

01FEB22

01FEB22

2nd 

01JUL22

 08JUN19

01JAN11

01JUL22

3rd 

 01NOV18

15JUN12

Other workers

01JAN20

01OCT14

15JUN12

01JAN20

Table B: Dates of Filing

The USCIS will be using Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications. See: USCIS Visa Bulletin Dates   

MU Law Analysis 

This month again there was good news and bad news for the retrogressed EB-2 and EB-3 categories. 

There was a retrogression in all categories of EB-2 except China due to high demand. Philippine and ROW retrogressed by four months whereas India unexpectedly retrogressed by nine months.  

The news remains positive for Philippine and Worldwide EB-3, where dates held at Current. China EB-3 progressed three months, which was unexpected, good news. 

 

Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months. This means that all EB-3 categories are expected to retrogress by the end of the fiscal year.


EB-3 Other Workers, which is the category for occupations such as Nurse Aides, remains retrogressed but held steady to January 2020 for Philippine and ROW.  

Thursday, March 16, 2023

USCIS UPDATES GUIDANCE ON EMPLOYERS’ ABILITY TO PAY REQUIREMENTS FOR GREEN CARD CASES

To obtain an I-140 approval, the sponsoring employer must be able to demonstrate that the employer has the ability to pay the required wage to the sponsored employee. 

The USCIS updated its policy manual, regarding ability to pay, on March 15, 2023. In order to establish the ability to pay for a green card case, the employer/sponsor must include one of the following:

(1) employer’s annual report,

(2) employer’s federal tax returns, or

(3) employer’s audited financial statement, with the I-140 filing.

However, if the employer has more than 100 workers, a financial officer statement can be included in lieu of one of these three documents.  The USCIS may accept the financial officer’s statement. 

If a financial officer statement is included, the statement should detail the employer’s finances and ability to pay based on having 100+ employees. Examples of financial officer statements USCIS will NOT accept can be found in the policy manual as well.

In addition to the required ability to pay evidence, USCIS will consider all evidence relevant to the employer’s financial strength that is submitted with the I-140 petition. USCIS may even request additional evidence of ability to pay from an employer. Examples of additional evidence are: employer’s bank account statements, personnel records, income and assets of others, credit limits, bank lines and lines of credit.

Friday, March 10, 2023

PREMIUM PROCESSING WILL EXPAND TO INCLUDE OPT/STEM OPT APPLICATIONS

Continuing its initiative to expand premium processing eligibility, on March 6, 2023, USCIS issued a News Release  that its premium processing program will be expanded again to include applications for OPT and STEM OPT applications.

Pending OPT and STEM OPT Applications

Beginning March 6, 2023, USCIS will accept Form I-907 (filed via paper or online) requests to upgrade to premium processing for pending EAD applications under the following categories:

·         (c)(3)(A) – Pre-Completion OPT;

·         (c)(3)(B) – Post-Completion OPT; and

·         (c)(3)(C) – 24-Month Extension of OPT for STEM students.

The Form I-907 filing fee for these classifications is $1,500.

USCIS has 30 calendar days to issue an RFE, approval, or denial on premium processing upgrade requests under these classifications.

Initial OPT and STEM OPT Applications

Beginning April 3, 2023, USCIS will accept premium processing requests (filed via paper or online) for applications in the categories above when filed together with initial OPT and STEM OPT applications.

 

 

Friday, March 3, 2023

STUDENT VISAS CAN NOW BE ISSUED UP TO 365 DAYS IN ADVANCE OF THE PROGRAM START DATE

The Department of State has updated its webpage on Student Visas to reflect that it will now issue new students their F or M visas up to 365 days in advance of the start date for a course of study as listed on the I-20.

However, students may not enter the United States on the issued student visa more than 30 days before their program start date.

Previously, visa interviews could be scheduled only up to 120 days before the program start date.

Wednesday, March 1, 2023

H-1B CAP LOTTERY DEADLINE – FRIDAY, MARCH 17, 2023

The USCIS’s annual H-1B Cap lottery registration window is now open and will close on Friday, March 17, 2023 at noon Eastern. All entries into the Fiscal Year 2024 lottery must be submitted by noon to be considered timely 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, 2023. The USCIS may conduct multiple rounds of selection until it reaches the 85,000 H-1B quota, although they did not last year.

Tuesday, February 21, 2023

UPDATES TO CHILD STATUS PROTECTION ACT (CSPA) CALCULATION

On February 14, 2023 USCIS updated its policy on the CSPA age calculation for certain adjustment of status application.  USCIS will now use the Department of State’s Visa Bulletin “Dates For Filing” chart to determine both the “CSPA age” of an adjustment applicant and the start date of the 1-year period during which a noncitizen must seek to acquire lawful permanent residence to preserve their green card case from aging out.  This policy change is effective immediately and applies to pending adjustment of status applications adjudicated on or after Feb. 14, 2023.

This USCIS policy update affects cases of noncitizens who were near the age of 21 when they started their green card process in a preference category, but their respective visas only became available after they reached age 21 or older.

Under the previous guidance, USCIS only considered a visa immediately available for CSPA purposes when the immigrant petition priority date became current under the “Final Action Dates chart” of the Department of State’s Visa bulletin.  Now, under the new policy, USCIS will consider the “Dates of Filing chart” in the Visa Bulletin to accept an adjustment of status application and to calculate the CSPA age. 

More information on the new USCIS policy on the Child Status Protection Act (CSPA) Age Calculation for Certain Adjustment of Status Applicants is available at the USCIS Policy Alert (PDF, 345 KB) and on the USCIS Child Status Protection Act page.  The USCIS news alert on this topic can be found here.

Friday, February 17, 2023

MARCH 2023 VISA BULLETIN: ANALYSIS AND RETROGRESSION PREDICTION

The Department of State has recently issued the March 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.

EB

Worldwide

CHINA

INDIA

PHILIPPINES

1st

C

01FEB22

01FEB22

C

2nd

01NOV22

08JUN19

08OCT11

01NOV22

3rd

C

01AUG18

15JUN12

C

Other workers

01JAN20

22DEC13

15JUN12

01JAN20

Table B: Dates of Filing

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

 

MU Law Analysis

This was an uneventful Visa Bulletin.  All dates remain the same as in the February Visa Bulletin.

Having said this, the Visa Bulletin included a foreboding Note,

E.  VISA AVAILABILITY IN THE EMPLOYMENT-BASED THIRD (EB-3) PREFERENCE CATEGORY

Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

This means that retrogression is coming for all EB-3 categories, including the Philippines and Worldwide.

As we have mentioned in our last few blogs, the FY 2023 employment-based immigrant visa limit is 197,000, as compared with 281,507 in FY 2022.  These quotas are greater than the usual 140,000 employment-based limit because of spillovers of unused family-based immigrant visas in the prior fiscal year. Slowdowns related to COVID caused the allocation of family-based visas to be short of the limit.    It is expected that the employment-based quota will return to 140,000 in FY 2024, which starts October 1, 2023.

Monday, February 6, 2023

H-1B 2023 CAP WEBINAR

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, February 7, 2023 at 2PM Eastern (1PM Central).

 

Join us for this FREE webinar to learn more about:

  • H-1B Cap Basics, Registration Process, and Projections
  • What is a Specialty Occupation?
  • H-1B Dependency
  • Special Issues for Staffing Companies, Third Party Placements
  • Employer-Employee relationships, end-client documentation
  • Cap-gap for F-1s as well as CPT/OPT maintenance
  • Alternatives to an H-1B
  • Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US!

Thursday, February 2, 2023

USCIS TO RESUME PROCESSING OF H-4 AND L-2 DEPENDENT APPLICATIONS WITH A PRINCIPAL’S FORM I-129

As of January 25, 2023, The U.S. Citizenship and Immigration Services (USCIS) has reverted to its original practice of bundling the adjudication of  Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization for H-4 and L-2 Derivatives when accompanied by the Principal Beneficiary’s properly filed Form I-129, Petition for a Nonimmigrant Worker.

As a result, a dependent’s filing will be processed within the same timeframe as the Principal Beneficiary’s properly and concurrently filed Form I-129, regardless of whether the forms are filed under standard or premium processing. The policy will remain in place for at least two years. 

The welcomed change in policy is due to the settlement agreement reached by the USCIS and spouses of H-1B and L-1 Visa Holders in the Lawsuit, Edakunni v. Mayorkas. Prior to this change, spouses of H-1B and L-1 Visa holders experienced lengthy processing times in the adjudication of Form I-539, Application to Extend/Change Nonimmigrant Status and Form I-765, Application for Employment Authorization due to the “decoupling” of these forms from the Principal’s H-1B or L-1 application. These lengthy processing times often led to delays in obtaining proper status and employment authorization documents. 

The USCIS is expected to make an announcement addressing the settlement agreement soon. Our office will be monitoring any further developments and provide updates.

Tuesday, January 31, 2023

FY 2024 CAP REGISTRATION BEGINS MARCH 1

U.S. Citizenship and Immigration Services (USCIS) announced the registration period for FY 2024 H-1B Cap will open on Wednesday, March 1, 2023, at noon Eastern and will end on Friday, March 17, 2023, at noon Eastern. USCIS intends to notify selected registrants by March 31, 2023.

During the registration window, employers must register prospective H-1B beneficiaries online for the beneficiaries to be considered in the selection process. Registration requires minimal biographical information about each beneficiary and whether the beneficiary is eligible for the U.S. advanced degree cap.

Employers new to the H-1B Cap electronic registration process can create an H-1B Registrant account on myUSCIS beginning at noon Eastern on February 21. Employers who have an account for previous H-1B Cap electronic registration periods may use their existing account for the upcoming registration period. Each beneficiary registered will incur a nominal $10 fee due to USCIS.

Under U.S. immigration law, USCIS must select 65,000 H-1B workers for the regular cap and 20,000 H-1B workers for the advanced degree exemption (the master’s cap).

MU Law will be hosting a FREE webinar all about the H-1B Cap for our clients and friends on Tuesday, February 7, 2023, at 2PM Eastern. Learn more here.

Thursday, January 26, 2023

H-1B 2023 CAP WEBINAR

 

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, February 7, 2023 at 2PM Eastern (1PM Central).

 

Join us for this FREE webinar to learn more about:

·         H-1B Cap Basics, Registration Process, and Projections

·         What is a Specialty Occupation?

·         H-1B Dependency

·         Special Issues for Staffing Companies, Third Party Placements

·         Employer-Employee relationships, end-client documentation

·         Cap-gap for F-1s as well as CPT/OPT maintenance

·         Alternatives to an H-1B

·         Top 10 things H-1B employers can do to stay compliant

 

PLEASE JOIN US!

Monday, January 23, 2023

PREMIUM PROCESSING WILL EXPAND TO INCLUDE INITIAL EB-1 AND EB-2 I-140 PETITIONS AND OPT/STEM OPT APPLICATIONS

Continuing its initiative to expand premium processing eligibility, on January 12, 2023, USCIS issued a news alert that its premium processing program will be expanded again to include initial I-140 petitions filed under the EB-1 and EB-2 categories, as well as applications for OPT and STEM OPT applications.

EB-1 and EB-2 I-140 Petitions

MU previously published blogs on the first phase, second phase, third phase of the initiative.

Beginning Jan. 30, 2023, USCIS will accept Form I-907 requests for:

        All pending E13 multinational executive and manager petitions and E21 NIW petitions; and

        All initial E13 multinational executive and manager petitions and E21 NIW petitions.

USCIS has 45 days to issue an RFE, approval, or denial on cases that request premium processing for these newly included Form I-140 classifications. USCIS will reject any premium processing requests for the classifications above that are filed before the appropriate start date.  

OPT and STEM OPT Applications

In March 2023, USCIS will accept Premium Processing upgrade requests for pending OPT and STEM OPT applications.

In April 2023, USCIS will accept Premium Processing requests for initial OPT and STEM OPT applications.

USCIS will announce the specific dates for each category in February 2023. 

USCIS also anticipates expanding Premium Processing for certain student and exchange visitors who have filed Forms I-539 in May 2023 and June 2023; an announcement from USCIS on this expansion is forthcoming.

USCIS has 30 days to issue an RFE, approval, or denial on cases that request premium processing for Form I-765 and I-539 classifications.


Tuesday, January 17, 2023

FEBRUARY 2023 VISA BULLETIN: ANALYSIS

The Department of State has recently issued the February 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.

 

EB

Worldwide

CHINA

INDIA

PHILIPPINES

1st

C

01FEB22

01FEB22

C

2nd

01NOV22

08JUN19

08OCT11

01NOV22

3rd

C

01AUG18

15JUN12

C

Other workers

01JAN20

22DEC13

15JUN12

01JAN20

Table B: Dates of Filing

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

MU Law Analysis

This was an uneventful Visa Bulletin.  Most dates remained the same as in the January 2022 Visa Bulletin. 

The WW and Philippine EB-3 remain current. We expect these categories to be current through much of the current fiscal year. 

EB-3 Other Workers, which is the category for occupations such as Nurse Aides, remains retrogressed.  It reverted to January 2020 because of continued higher usage than expected by the State Department. 

We remind all readers that the FY 2023 employment-based immigrant visa limit is 197,000, as compared with 281,507 in FY 2022.  These quotas are greater than the usual 140,000 employment-based limit because of spillovers of unused family-based immigrant visas in the prior fiscal year. Slowdowns related to COVID caused the allocation of family-based visas to be short of the limit.  It is expected that the employment-based quota will return to 140,000 in FY 2024, which starts October 1, 2023.