DHS Proposes to Amend H-1B Program

On October 23, 2023, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking (NPRM) to amend its H-1B regulations. The proposal also includes provisions that would change the H-1B cap registration and selection process.

If implemented, the NPRM would:

  • Address H-1B cap registration abuse by changing the way USCIS selects registrations. Under the proposed rule, USCIS would select registration by unique beneficiary to help ensure that each beneficiary has the same chance of being selected.
  • Allow automatic extensions of F-1 cap-gap status from the current October 1 to April 1 of the fiscal year for which H-1B status is requested.
  • Clarify the definition and qualifying criteria for what constitutes an H-1B specialty occupation.
  • Codify USCIS policy to give deference to prior petition approval where there is no material change to the underlying facts of the prior petition.
  • Provide more flexibility for nonprofit and government research organizations to sponsor cap-exempt H-1B petitions.

The Details

In advancing the rule, DHS aims to improve efficiencies, increase program benefits and flexibility, and strengthen the integrity of the H-1B program.

Modernize and Create Efficiencies

The NPRM

  • Revises the regulatory definition for an H-1B specialty occupation to codify that a range of degrees (fields of study) may qualify an individual for a specialty occupation, though there must be a direct relationship between the required degree field(s) and the position duties.
    • A general degree requirement (e.g., a degree in business administration or liberal arts degree) without specialized studies is insufficient to qualify for an H-1B.
    • A software developer position requiring a degree in any field of engineering would not generally satisfy the requirement that the position requires the application of a body of highly specialized knowledge and a degree in a specialty field.
  • Clarifies that, for purposes of establishing that a position is a specialty occupation, the qualifying criterion – a bachelor’s degree is normally required for the position – does not mean that a bachelor’s degree is “always” required.
    • This reflects current USCIS practice, but the prior administration frequently took the position that “normally” meant “always,” issuing requests for evidence and denying petitions accordingly. This provision is intended to standardize adjudications.
  • Clarifies that an amended or new petition must be filed when there is a material change to the conditions of employment, including following the filing of a new Labor Condition Application (LCA) due to a change in an H-1B worker’s place of employment. The amendment must be filed before the change takes place.
  • Codifies and clarifies the policy of giving deference to prior petition approvals if there have been no material changes in the underlying facts of the prior petition.
    • This provision would apply to petitions for all nonimmigrant classifications filed on Form I-129, including petitions filed for E, L, O and TN nonimmigrants.
  • Requires evidence of maintenance of status if the beneficiary is seeking an extension or amendment of stay.
    • This provision would apply to E–1, E–2, E–3, H–1B, H–1B1, H–2A, H–2B, H–3, L–1, O–1, O–2, P–1, P–2, P–3, Q–1, R–1, and TN nonimmigrants.
  • Eliminates the itinerary requirement if services will be performed in more than one location.
    • The requirement to obtain corresponding LCAs for worksites is unchanged.
  • Allows petitioners to amend validity periods when the requested validity period expires before adjudication is completed.

Increase Benefits and Flexibility

The NPRM

  • Modernizes the definition of employers who are exempt from the annual statutory cap on H-1B visas to create more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization.
  • Provides automatic extensions of F-1 cap-gap status from the current date of October 1 to April 1 of the fiscal year for which H-1B status is requested, to avoid disruptions in status, including OPT and STEM OPT employment.
  • Offers start date flexibility for certain H-1B cap-subject petitions as long as the start date does not exceed six months beyond the petition filing date.

Increase Program Integrity

The NPRM

  • Changes the cap registration process to select registrations based on a unique beneficiary identifier to reduce or remove the advantage of submitting multiple registrations for the same individual by different employers to increase changes of selection.
    • While a beneficiary still could have multiple, unrelated employers submit a registration on their behalf, the beneficiary would only be entered into any given lottery once, and if selected, each employer that submitted a registration for that beneficiary would be notified of selection and would be eligible to file a petition for the beneficiary.
  • Bars related entities from submitting multiple registrations for the same beneficiary.
  • Codifies USCIS’s ability to deny or revoke an approved H-1B petition where the underlying registration contained a false statement.
  • Codifies USCIS authority to request contracts and work orders from a petitioner where appropriate, requires that the petitioner have an actual (non-speculative) position for the H-1B worker as of the requested start date on the petition, and codifies the existing requirement that a petitioner have a bona fide job offer as of the requested start date.
  • Clarifies that beneficiary-owners may be eligible for H-1B status under defined conditions.
  • Codifies USCIS authority to conduct site visits, including visits to third-party worksites and home worksites.
  • Clarifies that if an H-1B worker is staffed to a third party, the requirements of the third party are most relevant to determining whether the position is a specialty occupation.

What’s Next?

The public may submit comments to the rule through December 22, 2023. Once DHS reviews and considers all comments, it intends to publish one or more final rules.  A final rule addressing cap registration and selection may be in place for next year’s cap registration process.

Gibney will closely monitor advancement of this rule and will provide updates as they become available.  For questions about the rule and the notice and comment period, please contact your designated Gibney representative or email….

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.

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

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.

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.

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-5Fifth 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.

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.

July 2023 Visa Bulletin: Immigration Considerations for Employers

The Department of State released the July 2023 Visa Bulletin.  Most Employment-Based Categories will hold steady with the exception of EB-3 Worldwide, EB-3 India, and Other Workers India:

  • 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 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:
    • EB-3 Worldwide will retrogress by four months to February 1, 2022; and
    • EB-3 India and Other Workers India will retrogress significantly by more than three years to January 1, 2009.

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) hold steady at February 15, 2022.
  • 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 by four months to February 1, 2022.
  • China’s Final Action Dates hold steady at April 1, 2019.
  • India will retrogress significantly by more than three years to January 1, 2009.

Other Workers

  • All categories will hold steady except for Other Workers India, which will retrogress to the same date as EB-3 India to 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 predicted in the May 2023 Visa Bulletin, due to higher than expected demand, the State Department has implemented a further cutoff date for EB-3 Worldwide to keep immigrant visa number allocation within the FY 2023 annual limit. As noted in the June 2023 Visa Bulletin, consistently robust number usage and high demand in the EB-3 India category necessitated significant retrogression for this category in July. Substantial retrogression was also implemented for Other Workers India emulating the same date as EB-3 India. As the July 2023 Visa Bulletin estimates that applicants chargeable to India will use all EB-3 numbers by the end of June, employers may wish to proceed in particular with eligible Adjustment of Status applications for EB-3 India applicants in June.

With higher than expected demand and continued retrogression, 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 June. This is particularly important for EB-3 India and Other Workers India applicants given the significant retrogression observed in these categories for July.

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

June 2023 Visa Bulletin Released

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.

Immigration Summer Travel Checklist for Foreign Nationals and Employers

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

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