October 6, 2023

Diversity Visa Lottery Now Open for FY 2025

WHAT IS THE DIVERSITY VISA LOTTERY?

The Diversity Immigrant Visa Program (“DV Program” or “DV-2025 Program”) is a government lottery program that provides up to 55,000 immigrant visas (aka green cards) to persons from countries with low U.S. immigration rates.

Under this program, foreign nationals who are selected through a randomized computer drawing are granted the opportunity to apply for U.S. Lawful Permanent Resident (“green card”) status. The DV Program is administered by the U.S. Department of State, and there is no cost to register.

WHEN CAN I APPLY?

The online registration period for the DV-2025 Program is open from 12:00 pm (ET) on October 4, 2023, to 12:00 pm (ET) on November 7, 2023. The entry form will only be available for submission during this time.

WHO IS ELIGIBLE?

An individual, their spouse, or their parent, must have been born in a country with historically low immigration rates to the United States (i.e., less than 50,000 U.S. immigrants in the last five years) in order to be eligible to enter the DV Program.

For DV-2025, natives of the following countries are not eligible to apply: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), Venezuela, and Vietnam.

Natives of Macau SAR and Taiwan are eligible for DV-2025.

Eligibility is generally determined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on his/her country of birth, there are two alternative ways to qualify: First, a foreign national whose spouse was born in an eligible country may apply, provided that both the individual and spouse are named on the selected entry, are found eligible, and enter the U.S. simultaneously. Second, a foreign national who was born in a country whose natives are ineligible may be eligible to apply if neither parent was born in or legally resided in that country at the time of the foreign national’s birth.

In addition to the nationality requirement, the applicant must also have either a high school diploma or its equivalent or at least two years of work experience in an occupation requiring at least two years of training or experience. The Department of State has a list of eligible occupations on their website.

Applicants do not need to live or be physically present in the United States to apply for the DV-2025 Program.

HOW DO I APPLY?

Applicants must submit the free Electronic Diversity Visa Entry Form online at state.gov during the entry period indicated above. No late entries or paper entries will be accepted.

In past years, the last week of the registration period saw heavy demand on the application website, causing website delays. We therefore recommend submitting the Entry Form as early as possible during the entry period.

By law, an applicant may submit only ONE lottery entry. Individuals who attempt to submit more than one entry will be disqualified.

Applicants should closely follow the detailed instructions for registration on the Department of State’s website.

Upon submission, the applicant will receive a unique confirmation number that will allow for case status lookup.

HOW DOES THE SELECTION PROCESS WORK?

DV Program lottery winners are selected via a randomized electronic lottery. All DV-2025 applicants must go to the Entrant Status Check website and enter their unique confirmation number from the online registration to find out whether their entry has been selected.

Entrant Status Check will be available starting at 12:00 p.m. (ET) on May 4, 2024, through at least September 30, 2025. Lottery winners will not receive correspondence in the mail.

Selection in the DV Program does not automatically confer U.S. Lawful Permanent Resident status – only the opportunity to apply for it.

HOW DO I APPLY FOR PERMANENT RESIDENCE IF I AM SELECTED?

Applications for U.S. Lawful Permanent Resident (“LPR”) status can be completed by filing an adjustment of status application if lawfully present in the U.S. or by filing an application for an immigrant visa at a U.S. Consulate abroad. There are fees and eligibility requirements associated with the application for permanent residence, including a medical exam. If an applicant is selected in the DV-2025 Program, the actual application for permanent residence must be filed and approved by September 30, 2025.If the application is not approved by that date, the application is invalidated.

Note: more individuals are selected in the DV Program than there are immigrant visas/green cards available. As a result, some individuals who are selected in the DV Program may ultimately be unable to become U.S. LPRs if the available immigrant visas/green cards are allocated prior to approval of the individual’s application for permanent residence.

WHERE CAN I GET MORE INFORMATION?

Instructions regarding how to apply for the DV-2025 Program may be obtained from the official U.S. Department of State website at dvprogram.state.gov and at DV-2025 Program Instructions.

For more information or specific legal advice, please contact your designated Gibney representative or email info@gibney.com.

October 4, 2023

USCIS Employment Authorization Document Validity Period Updates

USCIS Increases Employment Authorization Document Validity for Select Classifications

USCIS issued  updated guidance increasing the validity period of Employment Authorization Documents (EADs) issued to certain categories of applicants.

USCIS will increase the initial validity period from a maximum of two (2) years to a maximum of up to five (5) years for the following applicants:

  • Applicants for Adjustment of Status under INA Sec. 245
  • Asylees and refugees
  • Noncitizens granted withholding of deportation or removal
  • Noncitizens with pending applications for asylum or withholding of removal

The maximum validity period of an EAD issued to a noncitizen paroled as a refugee or an individual seeking suspension of deportation or cancellation of removal will also be raised from one (1) year to five (5) years.

The increased validity period for these categories is intended to reduce the number of times individuals must apply for renewals, benefiting the applicant while reducing the administrative burden of processing applications on USCIS.

In addition, the guidance:

  • lists the categories of noncitizens who are employment authorization incident to their status, i.e., individuals who do not require an EAD for employment and who may work pursuant to a properly issued I-94 document (e.g., L-2 spouses with a valid I-94 annotated with L-2S status);
  • explains that Afghan parolees and certain Ukrainian parolees are authorized to work incident to their parole.

The new guidance is effective immediately and applies to Applications for Employment Authorization (I-765) that are pending or filed on or after September 27, 2023.

Rule Extending EAD Validity for 540 Days Upon Renewal Expires October 26, 2023

As part of an effort to reduce EAD application backlogs and prevent gaps in employment authorization (and loss of employment) for applicants filing to renew their EADs, in May 2022 USCIS implemented a temporary rule that automatically extended the validity of certain EADs for up to 540 days if the applicant timely submitted a renewal application by filing Form I-765.

This automatic 540-day extension is set to expire on October 26, 2023. As such, certain covered EAD renewal applications filed on or after October 27, 2023 will only be eligible for an automatic EAD extension period of up to 180 days.

The following categories will revert to the normal 180-day automatic EAD extension period upon the timely filing of a renewal application:

Category Description Classification
Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status (c)(26)
Adjustment of Status applicants (c)(9)
Adjustment based on Continuous Residence Since Jan. 1, 1972 (c)(16)
Section 210 Legalization (pending I-700) (c)(20)
Section 245A Legalization (pending I-687) (c)(22)
Refugee (a)(3)
N-8 or N-9 (a)(7)
Citizen of Micronesia, Marshall Islands, or Palau (a)(8)
Withholding of Deportation or Removal Granted (a)(10)
*Spouses of principal E nonimmigrant with an unexpired I-94 (a)(17)
*Spouses of principal L-1 Nonimmigrant with an unexpired I-94 (a)(18)

 

*Spouses of E and L visa holders are authorized to work incident to their status with a properly endorsed I-94 (e.g., endorsed with L-2S or E-3S status), and are not required to obtain an EAD for employment. However, these individuals may apply to renew previously issued and valid  EADs if they wish.

Applicants who submit an EAD renewal application on or before October 26, 2023 will continue to be eligible to the automatic 540-day extension provided the I-765 renewal application is filed under the same classification and provided that USCIS receives the EAD renewal application before the expiration date on the underlying EAD.

At this time, it is uncertain whether USCIS will extend the automatic 540-day extension rule as there has been some improvement in EAD application processing times and some reduction in backlogs.  Gibney will continue monitor USCIS policy around this issue and will provide updates as they become available.

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

September 29, 2023

Israel Added to Visa Waiver Program November 30, 2023

Author: Rachel Refkin

On September 27, 2023, the Department of State and Department of Homeland Security (DHS) jointly announced the designation of Israel into the Visa Waiver Program.

OVERVIEW

  • As of November 30, 2023, citizens and nationals of Israel may travel to the U.S. for business or tourism for up to 90 days without a visa if they obtain  ESTA authorization.
  • The Visa Waiver Program allows nationals from a select group of U.S. security partner countries to travel to the U.S. without a visa for up to 90 days to encourage commerce and tourism.

WHAT THIS MEANS FOR EMPLOYERS AND FOREIGN NATIONALS:

  • Effective November 30, Israeli citizens and nationals who obtain an ESTA clearance may travel to the U.S. for up to 90 days for business or tourism without first obtaining a visa.
  • ESTA authorization for travel is generally valid for up to two years.
  • Israeli citizens and nationals who hold valid B-1/B-2 visas may continue to use their valid visas for both business and tourism travel to the United States.
  • ESTA travel authorization does not guarantee admission into the United States. All non-citizens traveling through the Visa Waiver Program are still subject to grounds of inadmissibility and inspection by U.S. Customs and Border Protection to ensure their intended visit is consistent with business or personal tourism.

ADDITIONAL INFORMATION

The American-Arab Anti-Discrimination Committee has filed a lawsuit challenging Israel’s admission to the Visa Waiver Program.  As of September 26, 2023, a federal district court in Michigan has denied a motion requesting a  temporary restraining order and a preliminary injunction that would have prevented Israel’s admission.  Gibney is following the litigation and will provide updates accordingly.

Additional information about the Visa Waiver Program and ESTA clearance is available here.

If you have any questions about this alert, please contact your designated Gibney representative or email info@gibney.com.

September 29, 2023

Immigration Impact of a Government Shutdown

If Congress does not reach a budget agreement by September 30, 2023, the federal government will shut down October 1.  Below is a brief overview of the potential immigration impact based on how government agencies operated during prior shut downs.

U.S. DEPARTMENT OF LABOR (DOL)

DOL will cease accepting or processing applications for Labor Condition Applications (LCAs) needed for H-1B petitions and E-3 applications,  prevailing wage applications, and PERM labor certification applications.  DOL may issue guidance providing flexibility to employers who are unable to file PERM labor certification applications with expiring recruitment due to the shutdown.

U.S. CITIZENSHIP AND IMMIGRATION SERVICES

Because USCIS application and petition adjudications are primarily funded by user application fees, USCIS is expected to continue operations without great disruption, though processing times may slow. However, the filing of H-1B petitions and E-3 applications will be impacted, as a DOL-issued LCA is required for the filing (see above).  In the past, USCIS accepted late filings if failure to timely file an H-1B or E-3 extension was due to the  government shutdown.

In contrast, USCIS E-Verify service is appropriations-funded and will be suspended. If the government shuts down, employers will not be able to enroll in E-Verify or to access their E-Verify accounts to verify the employment eligibility of new hires and resolve tentative nonconfirmations (TNCs). E-Verify customer service, online webinars and training sessions, and the Self-Check program will also be unavailable during the shutdown. Employers must still comply with their Form I-9 obligations.

U.S. CUSTOMS AND BORDER PROTECTION

CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and are expected to work without pay during a shutdown. U.S. borders and Preflight Inspections (PFI) areas will remain open. However, there may be staffing adjustments that could result in increased wait times to clear inspection and secure admission to the U.S. Additionally, adjudication of petitions by CBP officers at the border and PFI areas, such as TN applications and L-1 petitions for Canadian citizens, is expected to continue.

U.S. DEPARTMENT OF STATE

Visa and passport services are fee-funded and should continue as long as there are sufficient fees to support operations. However, passport offices housed in government buildings otherwise closed during a shutdown may become unavailable to the public. U.S. Embassies and Consulates remain open and will continue to process visa applications as long as funding remains in place. Visa application processing times may be delayed due to staffing adjustments or slowdowns at other federal agencies responsible for processing the security clearances required for visa issuance. A prolonged shutdown could ultimately exhaust DOS appropriations and result in the suspension of visa processing functions for all but emergency cases.

The situation posed by the federal government shutdown remains fluid. If a shutdown occurs, the impact on immigration related services may change the longer any shutdown persists. Gibney will be closely monitoring the situation and will provide updates. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

August 17, 2023

September 2023 Visa Bulletin Released: What Employers Can Expect

OVERVIEW

The Department of State released the September 2023 Visa Bulletin. Most Employment-Based Categories will hold steady with the exception of EB-2 Worldwide and EB-3 China:

  • 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 cutoff dates will remain the same for all countries.
  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will advance by 3 months to July 1, 2022; all other EB-2 categories will hold steady.
  • EB-3 China will advance by 3 months to September 1, 2019; EB-3 cutoff dates for all other countries will remain the same.

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) cutoff dates remain at August 1, 2023.
  • EB-1 China and India maintain a Final Action cut-off date of February 1, 2022 and January 1, 2012, respectively.

EB-2, Second Preference Category

  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) advances by 3 months to July 1, 2022.
  • China: Final Action dates hold steady at July 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) maintain a cutoff date of May 1, 2020.
  • China: Final Action Dates advance by 3 months to September 1, 2019.
  • India: Final Action Dates hold steady at January 1, 2009.

Other Workers

  • All categories hold steady from last month:
    • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) maintain a cutoff date May 1, 2020
    • China: September 1, 2015
    • India: January 1, 2009

EB-5: Fifth Preference Category (Immigrant Investors)

  • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cutoff date of April 1, 2017 and September 8, 2015, respectively. 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 noted in the September Visa Bulletin, number use by USCIS and the Department of State has been steady during the fiscal year. As a result, most employment-based preference category limits and/or the overall employment-based preference limit for FY 2023 are expected to be reached during September. If at any time an annual limit is reached, the preference category would immediately be made “unavailable”, and no further requests for immigrant visas would be honored. It is likely that many individuals will be required to wait for the commencement of the new fiscal year when green card allocation resets in order to receive their green card, which will begin on October 1, 2023.

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

August 1, 2023

USCIS Completes Second FY 2024 H-1B Cap Lottery

USCIS completed the second H-1B cap lottery for fiscal year (FY) 2024 H-1B cap on July 31, 2023. All employers with selected registrations have been notified.  Employers with selected registrations from the second lottery may file an H-1B petition for the beneficiary of a selected registration during the 90-day period running from  August 2, 2023 to October 31, 2023.

As previously reported, USCIS conducted its initial  H-1B cap lottery  in March 2023, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery was conducted because the number of H-1B petitions ultimately submitted and  approved during the initial H-1B filing period  were not sufficient to meet the annual statutory H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the July lottery was conducted from this reserve.

WHAT THIS MEANS FOR EMPLOYERS AND FOREIGN NATIONALS:

  • Employers with selected registrations will see updates in their myUSCISaccounts, including a selection notice and details of when and where to file the H-1B cap petition.
  • Only employers with selected registrations may file H-1B cap-subject petitions for FY 2024 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
  • An H-1B cap-subject petition for a selected registration must be properly filed at the designated  service center and within the filing period (August 2, 2023 to October 31, 2023) specified on the relevant registration selection notice.
  • Online filing is not available for H-1B petitions. Petitioners must file by paper and must include a printed copy of the applicable registration selection notice with the FY 2024 H-1B cap-subject petition.
  • Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
  • Petitioners filing H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

ADDITIONAL INFORMATION

USCIS reports that, this year, it saw an increase in the number of registrations generally, the number beneficiaries with multiple registrations (including registrations made by different employers for the same beneficiary), and the number of registrations submitted on behalf of unique beneficiaries with only one registration. USCIS suggests that fewer petitions were filed pursuant to the first lottery because of USCIS  fraud investigations resulting in denied and revoked petitions.  Layoffs (and lack of continuing employment sponsorship opportunities for foreign nationals) also contributed to fewer  filings in the first round. If these phenomena continue, a third lottery could be needed.

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

July 31, 2023

I-9 News: New Form Version and Live Video I-9 Inspection for E-Verify Employers

U.S. Citizenship and Immigration Services (USCIS) announced a new version of Form I-9, Employment Eligibility Verification. Employers must use Form I‑9 to verify the identity and employment authorization of their employees.

Changes to the I-9 Form

Features of the revised I-9 form include:

  • Reduced to a one-page form and is fillable on tablets and mobile devices
  • Section 1 Preparer/Translator Certification is now is a standalone supplement that employers can use when necessary
  • Section 3, Reverification and Rehire is a now a standalone supplement for employers to use if a rehire occurs or reverification is required
  • List of Acceptable Documents was revised to include some acceptable receipts and additional guidance on automatic extensions of employment authorization documentation

Most notably, the form now includes a checkbox allowing E-Verify registered employers to indicate they examined Form I-9 documentation via live video interaction under a DHS-authorized alternative procedure rather than via physical examination.

When Should Employers Begin Using the New Form?

Employers may begin using the new form on Aug. 1, 2023, but may continue to use the 2019 version through Oct. 31, 2023. Starting November 1, 2023 all employers must use the new version.

Changes to Remote Verification Beginning August 1st

DHS previously announced the end of temporary COVID-19 flexibilities as of July 31. However, beginning August 1st, DHS is providing an alternative for E-Verify registered employers to examine Form I-9 documents via live video interaction, instead of the current requirement to examine documents in-person. To participate, employers must:

  • Be an E-Verify participant in good standing
  • Retain clear and legible copies of all documents
  • Conduct a live video interaction with the employee
  • Create an E-Verify case if the employee is a new hire

Employers Required to Cure Past Virtual Inspections (March 20, 2020 to July 31, 2023)

Again, DHS previously announced the end of temporary COVID-19 flexibilities as of July 31. Virtual inspections that were conducted during the COVID-19 pandemic (March 20, 2020 to July 31, 2023) must be cured via a physical inspection or, for E-Verify employers, a live video interaction, by August 30.

Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by Aug. 30, 2023.

Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023.

Gibney will continue to monitor for developments. For questions, please contact your Gibney representative or email info@gibney.com.

July 27, 2023

USCIS to Conduct Second FY 2024 H-1B Cap Lottery

On July 27, USCIS announced that it will conduct a second lottery for the fiscal year (FY) 2024 H-1B cap. USCIS has not yet indicated when the second lottery will occur.

USCIS previously concluded its initial FY 2024 H-1B cap lottery in March 2023, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery is being conducted because the number of H-1B petitions ultimately submitted during the initial H-1B filing period (April 1, 2023 to June 30, 2023) were not sufficient to meet the annual H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the second lottery will be conducted from this reserve. USCIS has not yet announced how many additional registrations will be selected from the reserve.

WHAT SHOULD EMPLOYERS EXPECT NEXT?

  • Employers or their designated counsel should check their registration accounts for new selection notices.
  • Selected registrations are expected to have a notice indicating the selection is from a reserve registration.
  • The notice will specify the 90-day filing period  during which the employer must submit the H-1B cap petition for the selected registration.
  • The H-1B cap petition for the selected registration must be submitted to USCIS  within the filing period specified on the notice.
  • The notice must be included with the H-1B petition submitted to USCIS during the specified filing period.
  • The H-1B cap petition may only be submitted for the beneficiary named in the selected registration; employers may not substitute another beneficiary.

ADDITIONAL INFORMATION

The running of a second lottery is welcome news to employers and foreign nationals who were shut out of the initial lottery.  Last year, only one lottery was conducted, and a sufficient number of petitions were submitted and approved to meet the H-1B cap. This year, USCIS received a record 758,994 eligible H-1B cap registrations. Nonetheless, the petitions submitted pursuant to the first  lottery conducted in March were not sufficient to meet the cap.  Widespread layoffs in the technology sector may have resulted in fewer submissions pursuant to the initial round of selected registrations.  Additionally, USCIS is investigating allegations of fraud and duplicate/improper submissions in the registration process, and this, too, may have contributed to the submission of fewer petitions and the need to run a second lottery.

For additional information, you may visit the USCIS FY 2024 H-1B Cap Season site or contact your designated Gibney representative.

July 27, 2023

August 2023 Visa Bulletin Released with Significant Retrogression

The August 2023 Visa Bulletin has been released. Sustained demand for too few immigrant visas continues to have an adverse impact on foreign nationals and their U.S. employers.

Highlights from the August 2023 Bulletin include:

  • Establishment of a cut-off date for EB-1 Worldwide, Mexico and the Philippines
  • Retrogression of more than a decade for EB-1 India
  • Further retrogression for EB-3 Worldwide, Mexico and the Philippines.
  • USCIS confirmedthat it will follow the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR FINAL ACTION DATES

The Final Action Dates are as follows:

EB-1, First Preference Category

  • EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) now has a cut-off date of August 1, 2023.
  • EB-1 China’s cut-off date held steady at February 1, 2022
  • EB-1 India retrogressed more than 10 years, to January 1, 2012.

EB-2, Second Preference Category

  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) Final Action Date advanced to April 1, 2022.
  • EB-2 China: Final Action Date holds steady at June 8, 2019.
  • EB-2 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 and Honduras, Mexico, and Philippines) retrogressed further to May 1, 2020.
  • EB-3 China:  Final Action Date advanced one month to June 1, 2019.
  • EB-3 India: Final Action Date held steady at January 1, 2009.

EB-5, Fifth Preference Category (Immigrant Investors)

  • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cutoff date of April 1, 2017 and September 8, 2015, respectively. 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?  

Retrogression is unlikely to improve for the remainder of the fiscal year as the limited annual supply of immigrant visa dwindles.

Due to continued use and high demand, the Department of State established a cut-off date for EB-1 Worldwide. While further adjustments may be made in September, the State Department predicts that EB-1 Worldwide will return to “Current” with the start of the new fiscal year in October.

Because the EB-1 Worldwide demand for FY 2023 is now greater than the number of visas remaining and available, EB-1 India can no longer received unused numbers from the Worldwide category. Due to per country quotas, India has reached the FY 2023 limit. The EB-1 India cut-off date of January 1, 2012 reflects the oldest priority date of an EB-1 applicant.  The State Department expects that with the new fiscal year in October, the EB-1 India final action date should advance to at least the final action date in the July Visa Bulletin (February 1, 2022). However, this will depend in part on demand for EB-1 visas by Indian applicants.

Further retrogression this month for EB-3 Worldwide reflects sustained demand since cut-off dates were put in place in May 2023.

As demand keeps pace with predictions, the ability to file Adjustment of Status applications for employees will continue to be more difficult through the end of the fiscal year. Employers should contact immigration counsel to identify foreign nationals who are eligible to file Adjustment of Status applications in August, as further retrogression is possible for September.

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

July 21, 2023

DHS Expands STEM OPT Fields for International Students

On July 12, 2023, the U.S. Department of Homeland Security (DHS) added eight fields of study to the Designated Degree Program List qualifying F-1 students to secure a STEM OPT (science, technology, engineering, mathematics Optional Practical Training) extension of  employment authorization.

The change provides more international students with the opportunity to gain additional practical experience by temporarily working in the U.S. These updates are part of the Biden Administration’s ongoing efforts to provide additional pathways for STEM students and researchers to continue ongoing research efforts in the U.S. In its 2016 STEM OPT Final Rule, DHS indicated it would continue to make ongoing updates to this list, in keeping with changes to STEM fields, academic programs and/or technological trends.

STEM OPT Program

OPT allows certain F-1 students to undertake 12 months of practical work experience related to their area of study either during or following the completion of their degree program. Typically, the program allows students to work for 12 months. Students who have earned a degree in a designated STEM field are eligible to apply for a 24-month extension of OPT, allowing them to work for a total of 36 months

New STEM Fields of Study

The newly designated fields of study include:

  • Landscape Architecture
  • Institutional Research
  • Mechatronics, Robotics, and Automation Engineering Technology/Technician
  • Composite Materials Technology/Technician
  • Linguistics and Computer Science
  • Developmental and Adolescent Psychology
  • Geospatial Intelligence
  • Demography and Population Studies

What Employers and Students Need to Know

The notice impacts qualifying F–1 nonimmigrant students seeking a 24-month extension of post-completion OPT. Employers and students should review DHS’s STEM Designated Degree Program List for the complete list of fields that qualify and confer with immigration  counsel regarding associated compliance requirements.

Students seeking an OPT  STEM extension with an E-Verify employer must work with their employer to complete Form I–983, “Training Plan for STEM OPT Students” and must apply to renew their initially granted OPT Employment Authorization Document (EAD) during its validity period by filing  Form I–765, “Application for Employment Authorization” with USCIS.

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