Category: Alerts

The Department of State released the June 2023 Visa Bulletin.  Most employment-based categories will hold steady with the exception of EB-5 India and China Other Workers:

• USCIS will continue to accept employment-based Adjustment of Status applications based on Final Action Dates rather than the more generous Dates for Filing chart.
• EB-1 and EB-2 cutoff dates will remain the same for all countries.
• EB-3 cutoff dates will remain the same for all counties with the exception of China Other Workers, which will advance by about 5 months to September 1, 2015.
• EB-5 India will retrogress by more than one year to April 1, 2017.

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, Honduras, Mexico, and Philippines) hold steady at February 15, 2022.
• China: Final Action dated holds steady at June 8, 2019.
• India:  Final Action date holds steady at January 1, 2011.

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

• EB-3 Worldwide (including El Salvador, Guatemala, Honduras, Mexico, and Philippines) maintain a Final Action cut-off date of June 1, 2022. EB-3 for all countries except China remain ahead of EB-2.
• China’s Final Action Date holds steady at April 1, 2019.
• India’s Final Action date holds steady at June 15, 2012.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India will retrogress to April 1, 2017. China will maintain a cutoff date of September 8, 2015. 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 May 2023 Visa Bulletin, due to increased demand, the State Department has implemented a cutoff date for EB-5 India to keep immigrant visa number allocation within the FY 2023 annual limit. Given the significant retrogression of more than one year noted for this category, employers should  proceed with eligible Adjustment of Status applications for EB-5 India applicants in May.

The June 2023 Visa Bulletin notes that steady number allocation and high demand in the EB-3 India category will most likely necessitate further retrogression for this category as early as July.

The ability to file Adjustment of Status applications will continue to be more challenging as we approach the end of the Fiscal Year. Employers should work with immigration counsel to identify foreign nationals who are eligible to file Adjustment of Status applications as soon as priority dates are available. This is particularly important for EB-3 India applicants given further anticipated retrogression in this category for next month.

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

Summer travel is expected to reach record high this year as pandemic-era restrictions are lifted.  International travelers should expect busy consulates and U.S. Ports of Entry.   Although U.S. consulates have reduced visa wait times in recent months, foreign nationals may still encounter delays when applying for a visa.  We encourage all travelers to plan ahead when traveling abroad and entering the U.S.

Our travel checklist is designed to help foreign nationals schedule appointments and gather required documentation in advance.

REQUIRMENTS FOR INTERNATIONAL TRAVELERS

Effective May 12, 2023, the U.S. will no longer require COVID-19 vaccinations for international travelers entering the U.S.

U.S. ENTRY: STATUS AND DOCUMENTATION CHECKLIST

• Confirm the validity of passports for all travelers. Valid passports are required for all international travelers and accompanying family members, including U.S. and Canadian citizens. Renew passports in advance to ensure at least six months’ validity at the time of any visa application or entry to the U.S. Many countries allow renewal of passports by mail through their consulates or embassies in the U.S.
• Carry all documents required for admission to the U.S. Upon arrival in the U.S., some entrants may need to show additional evidence of work or status authorization in addition to a passport and valid visa stamp. Documents vary by visa classification but may include an original I-797, Approval Notice; endorsed Form I-129S; Advance Parole Document; Employment Authorization Document (EAD); Form DS-2019 with travel authorization; and/or travel endorsed Form I-20.
• Verify the U.S. admission classification/expiration date. Upon entry to the U.S., foreign nationals should expect a U.S. Customs and Border Protection (CBP) officer to create an electronic I-94 record of their admission.At many Ports of Entry, CBP has stopped issuing a passport stamp. If a stamp is issued, ensure that the classification is correct and immediately alert CBP to any errors.
• Review your I-94 record. After each entry to the U.S., foreign nationals should access and review the electronic I-94 record available on the CBP website. This is more important than ever, as CBP has stopped stamping passports at entry.   Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date on the visa in the passport or on the passport stamp, if issued. Send Immigration Counsel a copy of your I-94 once you have retrieved it.

CHECKLIST FOR FOREIGN NATIONAL EMPLOYEES (AND EMPLOYERS) WHO DO NOT HAVE A VALID VISA IN THEIR CURRENT PASSPORT

• Consult with Immigration Counsel in advance of travel. Immigration counsel can help to prepare for enhanced vetting and for the consular interview before you apply for a visa. Schedule consultations 60-90 days in advance whenever possible. Keep in mind that appointment wait times at U.S. consulates can range from a few days to a few months.
• Check the Consulate’s website prior to travel. If you require visa issuance at a consulate abroad, review information on specific procedures regarding booking visa appointments and documentation required for visa interviews. Consular procedures vary widely and are subject to change with little notice.
• Complete Form DS-160.This form is required for all temporary visa applicants including dependent spouses and children of principal visa holders. Retain a copy of the final form at the time of submission. Many consulates require that the visa application be completed prior to scheduling a visa appointment.
• Review your visa application/petition. Review the petition prepared by Immigration Counsel on your behalf prior to traveling, to ensure the accuracy of the information reported and consistency with applications.
• Review your online profiles. This includes information in online employee profiles and company pages as well as social media profiles. Government officials at USCIS, U.S. consulates, and U.S. Ports of Entry review online profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S.
• Update company information. Employers should update company pages and sites such as Dunn & Bradstreet that may be referenced by immigration officers to verify employment or business information.
• Gather employment verification. If you are applying for a temporary work visa, most consulates require current employment verification letters from employers. Request these letters in advance of travel to allow adequate time for Human Resources to prepare them. Maintain copies of recent paystubs as evidence of current employment. Ensure that that the employment verification letter is consistent with any immigration petition underlying the visa application, if applicable.
• Disclose any arrests/detainment to Immigration Counsel. Consult with Immigration Counsel if you have been arrested or detained by law enforcement, even if not charged/convicted. Consult with counsel before departing the U.S. or applying for a visa or any other immigration benefit. Citations, arrests or detentions may require disclosure on applications and may impact immigration status and/or eligibility for immigration benefits.
• Check consulate wait times. Review the consulate website for visa appointments and processing times and alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
• Confirm consulate holiday hours. Consulates abroad observe both U.S. and local country holidays and some offices may be short-staffed due to vacations.
• TIP for visa appointments: If the consulate has long wait times, book an appointment at the earliest date possible and check the website regularly for newly released appointment times that are more desirable.

TRAVEL DOCUMENTS IF YOU DON’T NEED A VISA FROM THE CONSULATE

• Visa Waiver Program travelers must have a valid ESTA approval. The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries who wish to enter the U.S. for B-1 business/B-2 tourism purposes. VWP travelers must obtain a valid ESTA approval prior to travel. The ESTA clearance may be valid for up to two years. Note that a new ESTA approval is needed when a VWP traveler obtains a new passport and/or changes their name or country of citizenship, and when answers to any of the VWP eligibility questions (e.g., regarding an arrest or visa denial) change.
• Adjustment of Status applicants and Advance Parole travel documents. With the exception of some H and L visa holders, individuals with pending I-485, Adjustment of Status applications must have a valid original Advance Parole travel document issued prior to departing the U.S. Departing the U.S. without an Advance Parole may result in denial of the I-485 application. Note that the Advance Parole document must be valid when you depart the U.S. and valid when you return.

HELPFUL LINKS

• To find the nearest foreign consulate in the U.S. visit Foreign Embassies and Consulates in the U.S.
• Check U.S. consulate wait times at S. Consulate Visa Wait Times
• Find links to U.S. consular posts around the world at S. Consular Posts
• For information on the Visa Waiver Program and current VWP countries visit Visa Waiver Program
• Obtain and review your electronic I-94 record at CBP I-94s
• Complete the DS-160 Online Nonimmigrant Visa Application at DS-160

For specific travel-related questions, please contact your Gibney representative or email info@gibney.com.

The Biden Administration ended the COVID-19 vaccine requirement for international air travelers on May 11, 2023, the same day that the COVID-19 public health emergency ended. Effective May 12, noncitizen nonimmigrant air passengers will no longer be required to show proof of being fully vaccinated with an accepted COVID-19 vaccine to board a flight to the United States.

The Department of Homeland Security (DHS) also confirmed that starting May 12, it will no longer require non-U.S. travelers entering the United States via land ports of entry and ferries to be vaccinated against COVID-19.

Background

In 2021, the Biden-Harris Administration announced COVID-19 vaccination requirements for certain international travelers to slow the spread of new variants entering the country. Last June, the Administration dropped its requirement that people arriving in the U.S. by air must test negative for COVID but kept in place Centers for Disease Control and Prevention (CDC) vaccination requirements for most foreign travelers. The termination of the COVID-19 public health emergency has now brought an end to the traveler vaccination requirement.

COVID Vaccine Requirements for Green Card Applicants Remain in Effect

The new guidelines eliminating COVID-19 vaccination requirements are  applicable to noncitizens seeking temporary admission to the U.S. Foreign nationals applying for  U.S. permanent resident status  (green cards) are still required to show proof of COVID-19 vaccination (or proof of eligibility for an exemption) in connection with completing the medical  exam required for the adjustment of status or immigrant visa application.

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

 

 

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.