Tag: Immigration Updates & FAQs

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.

Bloomberg Law has reported that the U.S. Department of State intends to implement a pilot program this year that will allow certain nonimmigrants to renew their visas in the U.S., obviating the need to travel internationally to renew the visa at a U.S. consulate abroad.

A spokesperson for the State Department was quoted as indicating that stateside visa renewal will initially be offered to H and L visa holders, and may be expanded to other visa categories later.  A specific timeline for implementation of the pilot program has not yet been announced.

Background

The State Department previously offered stateside visa renewal, but stopped the practice in 2004 when  additional biometrics requirements were introduced.

In 2022, the American Immigration Lawyers Association advocated for re-introducing a domestic visa renewal program to address inefficiencies and delays in visa issuance.  Pandemic-related consular closures brought visa processing to a grinding halt, and significant backlogs ensued.  The subsequent easing of travel restrictions led to an uptick in travel and increased demand for visa appointments, further compounding  backlogs at the consulates.

Benefit to U.S.  Employers and  Nonimmigrant Workforce

Implementation of the stateside visa renewal pilot program will ease the demand for services at the U.S. consulates abroad, allowing consulates to allocate resources to  other visa issuing priorities.  But U.S. employers and their nonimmigrant workforce also stand to gain.

Domestic visa renewal will provide foreign nationals and their U.S. employers with  greater predictability around international travel and workforce planning.

Currently foreign nationals must renew expired visas while abroad in order to gain readmission to the U.S.  These individuals may be subject to significant delays in obtaining an appointment to secure a visa to return to the U.S.  Additionally,  after the application is lodged, the visa applicant may also be subject to significant processing delays at the consulates, including administrative processing, which can delay visa issuance by months.  The result is that employees become stranded abroad, unable to resume their employment in the U.S.   In some instances this results  in loss of employment in the U.S. and significant workforce disruption for the U.S. employer.

With the re-introduction of stateside visa renewals, nonimmigrant workers can more readily maintain a valid visa in their passport.  When urgent business or personal matters arise requiring unanticipated international travel, these individuals will be “travel ready” without the need to secure and attend a visa appointment while abroad, and their employers can be assured of their ability to return and resume their responsibilities in the U.S. without delay.

Gibney will continue monitor the implementation of the stateside visa renewal pilot program and will provide updates on the timing and protocols when available. For additional information, please contact your designated Gibney representative or email info@gibney.com.

The Department of State released the December 2022 Visa Bulletin.  There are a few notable developments for employment-based applicants:

• Final action priority dates remain current for all countries in the EB-1 category in December, but the Department of State predicts that EB-1 for China and India will retrogress in the coming months.
• Final action priority dates retrogressed for India in the EB-2 category and a final action cut-off date of November 1, 2022 was established for all countries other than India and China.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR DATES FOR FILING

USCIS confirmed that it will follow the dates for filing chart for purposes of eligibility to file an adjustment of status application.  The dates for filing are as follows:

EB-1, First Preference Category

• EB-1 remains current for all countries for now.

EB-2, Second Preference Category

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) has a date for filing cut-off date of December 1, 2022. Foreign nationals with a priority date before December 1, 2022 are eligible to file adjustment of status applications.
• China: The cut-off date for filing held steady at July 8, 2019.
• India:  The cut-off date for filing held steady at May 1, 2012.

EB-3, Third Preference Category (Skilled Workers)

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current in December.
• China’s cut-off date for filing advanced to September 1, 2018
• India’s cut-off date for filing advanced to August 1, 2012.

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.

EMPLOYMENT-BASED FINAL ACTION DATES

While an individual may file an adjustment of status application in December using the dates for filing summarized above, an individual’s green card application may not be approved until the priority date is available under the final action dates, also posted on the Visa Bulletin.   The final action dates may differ significantly from the dates for filing, depending on the preference category and country of birth.   The December 2022 Final Action Dates are as follows:

EB-1, First Preference Category

• EB-1 remains current for all countries for now.

EB-2, Second Preference Category

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) has a final action cut-off date of November 1, 2022.
• China: The final action cut-off date remains the same at June 8, 2019.
• India:  The final action cut-off date retrogressed to October 8, 2011.

EB-3 Third Preference Category (Skilled Workers)

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current in December.
• China’s final action cut-off date advanced to August 1, 2018.
• India’s final action cut-off date advanced to June 15, 2012.

WHAT SHOULD EMPLOYERS EXPECT?  

As reviewed in our Fiscal Year 2023 visa availability analysis, we are starting to see the impact of fewer immigrant visas being available in fiscal year 2023. Further retrogression for Indian nationals in the EB-2 category, establishment of cut-off dates for worldwide in the EB-2 category, and retrogression forecasts for India and China in the EB-1 category, are the unfortunate result.

The ability to file adjustment of status applications for employees will be more challenging this year than last. Employers should work with immigration counsel to identify foreign nationals who are eligible to file adjustment of status applications in December. Additionally, it will be particularly important to file adjustment of status applications for Chinese and Indian nationals qualifying in the first-preference category given projected retrogression for the months to come.

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

The holiday season is here and travel is reaching pre-pandemic levels.  International travelers should expect busy consulates and U.S. Ports of Entry.   Although U.S. Consulates have committed additional resources to address backlogs, foreign nationals may still encounter long wait times when applying for a visa.  We encourage all travelers to plan ahead to minimize delays when traveling abroad and entering the U.S.

Our holiday travel checklist is designed to help foreign national employees and employers schedule appointments and gather required documentation in advance.

REQUIRMENTS FOR INTERNATIONAL TRAVELERS

Generally, vaccination requirements have replaced COVID-19 testing and travel bans. Noncitizens seeking to enter the U.S. in a temporary status (nonimmigrants) who travel by airline are required to show proof of  full vaccination against COVID-19 before boarding a flight to the  U.S. from a foreign country. Check the Centers for Disease Control (CDC) website for detailed information and exceptions.

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 entry to the U.S., some entrants may need to show additional evidence of work authorization or government approval 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 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. 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 moves away from 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.

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

• Consult with Immigration Counsel in advance. 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 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 visa 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, 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.
• 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, which 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 his/her 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 U.S. Consulate Visa Wait Times
• Find links to U.S. consular posts around the world at U.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.

 

WHAT IS THE DIVERSITY VISA LOTTERY?

The Fiscal Year (“FY”) 2024 Diversity Immigrant Visa Program (“DV Program” or “DV-2024 Program”) provides up to 55,000 immigrant visas (aka permanent residence or green cards) for issuance in FY 2024 to persons from countries with low immigration rates to the U.S. Foreign nationals are selected for eligibility to apply for U.S. Lawful Permanent Resident (“LPR”) status under this program on the basis of a lottery. 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-2024 Program is from 12:00PM EDT (GMT -4) on October 5, 2022 to 12:00PM EST (GMT -5) on November 8, 2022. The entry form will only be available for submission during this time.

WHO IS ELIGIBLE?

• An individual must have been born in an eligible country and must meet minimum education/work requirements.
• For DV-2024, natives of the following countries/areas 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), United Kingdom (except Northern Ireland) and its dependent territories, Venezuela, and Vietnam.
• Natives of Macau SAR and Taiwan are eligible.
• Eligible nationality 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 alternate ways to qualify. First, a foreign national whose spouse was born in a 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.
• A foreign national must also have either a high school education or its equivalent or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience.

HOW DO I APPLY?

• Submit the Electronic Diversity Visa Entry Form online at state.gov during the entry period indicated above. Entries will NOT be accepted through the U.S. Postal Service.
• In years past, the last week of the registration period saw heavy demand on the application website, causing website delays. Therefore, submitting an application as early as possible during the entry period is encouraged.
• An applicant may only submit ONE lottery entry; individuals who attempt to submit more than one entry will be disqualified.
• The application must be accompanied by digital photographs of the applicant as well as their spouse and/or dependent children, taken in accordance with requirements. Note: Each individual may submit his/her own application if he/she otherwise qualifies.
• The applicant must also enter valid international travel passport information unless they meet the requirements for an exemption. An exemption may apply if an applicant is stateless, a national of a Communist-controlled country and unable to obtain a passport from the government of the Communist-controlled country, or the beneficiary of an individual waiver approved by the Secretary of Homeland Security and the Secretary of State.

HOW DOES THE SELECTION PROCESS WORK?

• DV Program winners are selected via an electronic lottery. After entering, it is critical that the applicant safeguard the confirmation page as it contains the information needed to check the application status.
• All DV-2024 entrants must go to the Entrant Status Check website using the unique confirmation number from the online registration to find out whether their entry has been selected in the DV Program
• Entrant Status Check will be available at state.gov starting at noon (EDT) on May 6, 2023 through at least September 30, 2023. Lottery winners will not receive correspondence in the mail.
• Selection in the DV Program does not automatically confer U.S. LPR status – only the opportunity to apply for it.

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

Applications for permanent resident 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. If an applicant is selected in the DV-2024 Program, the actual application for permanent resident status must be filed and approved by September 30, 2024; if an 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 made 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 are allocated prior to approval of the individual’s permanent resident application.

WHERE CAN I GET MORE INFORMATION?

Instructions regarding how to apply for the DV-2024 Program may be obtained from the official U.S. Department of State website at dvprogram.state.gov and at DV-2024 Program Instructions.

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

Petitions filed as Change of Status

Fiscal year 2023 H-1B cap petitions filed as “change of status” and approved by USCIS automatically took effect on October 1, 2022 if the beneficiary:

• was physically present in the U.S. for the entire period from the date the petition was received through the date the application was approved; and,
• was physically present in the U.S. on October 1, 2022 for the change of status to take effect.

With the exception of Canadian citizens, beneficiaries of approved H-1B cap petitions who depart the U.S. will need a valid H-1B visa to return to the U.S. in H-1B status. Many consulates have a wait period of several months to schedule a visa appointment. Actual visa processing times vary by consulate and can be found at the U.S. Department of State website. All intending visa applicants are advised to check the website of the consulate where they intend to apply for information on scheduling the interview and the visa application process.

Petitions filed for Consular Notification

Approved H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status for an approved consular notification petition, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Canadian citizens do not require a visa, but do need to activate a “consular notification” petition through a Port of Entry into the U.S.

Next Steps for Employers

• Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9for H-1B cap beneficiaries whose I-9 documents are expiring.
• Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
• Pending H-1B Petitions: For H-1B cap petitions still pending, employers need to be aware of foreign nationals who have work authorization ending prior to H-1B approval, and must specifically monitor the employment of F-1 “cap gap” students, as these individuals may need to come off payroll and/or take additional steps to maintain their valid immigration status as of October 1, 2022.

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

 

 

U.S. Citizenship and Immigration Services (USCIS) has further expanded  premium processing eligibility to include more Form I-140, Immigrant Petitions for Alien Workers, under the EB-1 and EB-2 classifications, consistent with its initiative to expand premium processing service for certain long-pending, employment-based permanent resident petitions.

As of September15, 2022, premium processing service is now available for:

• I-140 petitions filed on behalf of multinational executives and managers (EB-1(3) classification) with receipt dates on or before January 1, 2022.
• I-140 petitions for persons seeking a National Interest Waiver (EB-2(1) NIW classification) with receipt dates on or before February 1, 2022.

How to Apply
Petitioners who wish to request a premium processing upgrade must file the new Form I-907, Request for Premium Processing Service and pay a supplemental fee of $2,500. USCIS will have 45 days from receipt of the premium processing request and fee to adjudicate the petition.

USCIS will reject premium processing requests if the initial petition receipt date is after the eligibility date, nor will USCIS accept  premium processing requests for newly filed I-140 petitions in the above-referenced categories  at this time.

What’s Next?

USCIS intends  to expand premium processing to additional form types in the months ahead including additional Form I-140 petitions, Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization as part of its mission to improve efficiencies and reduce burdens in accessing immigration benefits.

Gibney will continue to monitor these developments and provide updates as they become available. If you have questions, please contact your designated Gibney representative or email info@gibney.com.

October 1, 2022 marked the start of the federal government’s fiscal year 2023 (FY 2023), with the Department of State (DOS) October Visa Bulletin taking effect the same day.

What is sure to be disappointing to many is the significant retrogression in the availability of immigrant visas (“green cards”) for Indian nationals in the employment-based second preference (EB-2) category.  Moreover, the availability of immigrant visas for all employment-based applicants will be fewer this fiscal year than last.

Annual Immigrant Visa Quotas and Retrogression – Some Background

Each year, by statute, 140,000 employment-based immigrant visas (green cards) may be issued to qualified applicants, plus any unused visas from the family-based categories in the preceding year. The visas are distributed among five employment-based (EB) preference categories and then allocated by country of birth according to Congressionally-mandated per country quotas. The employment-based preference categories are summarized in the monthly Visa Bulletin. Visa retrogression occurs when the number of individuals seeking a green card exceeds the number of visas available in the applicable employment-based preference category.  A “cut-off date” is then set and published in the Visa Bulletin. A queue to apply for the green card ensues and a foreign national is assigned a place in line based on their priority date, preference category, and country of birth.

For employment-based immigrants, the priority date is determined by the date that a PERM labor certification application is filed with the U.S. Department of Labor (DOL) for the sponsored foreign national employee.  In instances where a PERM labor certification is not required (e.g., for EB-1 petitions and EB-2 National Interest Waiver petitions), the priority date is determined by the date that an I-140 immigrant petition is filed with U.S. Citizenship and Immigration Services (USCIS).  In order for a foreign national to apply for a green card, their priority date must be available or “current” on the monthly Visa Bulletin.  An immigrant visa number is only available when the priority date is earlier than the cut-off date shown on the Visa Bulletin for the applicable preference category and country of birth.

Historically visa retrogression has been most severe for foreign nationals born in India and to a lesser extent, China, as the demand from nationals from these countries often exceeds statutory quotas. The result has been a multi-year wait for green card issuance for these individuals.

Immigrant Visa Availability in FY 2023 v. FY 2022

Retrogression for Indian nationals in the EB-2 category in October comes on the heels of a record numbers of immigrant visas being issued in FY 2022.  In FY 2022, DOS was able to allocate 281,507 immigrant visas for the employment-based categories, more than twice the annual statutory quota of 140,000, due to unused visas in the family-based categories from the prior year spilling over to the employment-based categories.  Family-based visas went unused largely due to the pandemic and the Trump administration bans on the issuance of immigrant visas abroad during the pandemic.

According to USCIS FAQs, the employment-based annual limit for FY 2023 will be higher than it was pre-pandemic, but lower than it was in FY 2021 and FY 2022.  DOS estimates that the FY 2023 employment-based annual limit will be approximately 200,000 immigrant visas, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023.

With the projected reduction in the number of employment-based immigrant visas available in FY 2023, USCIS and DOS collaborate to control the allocation on a monthly basis through the Visa Bulletin, taking into consideration numerous factors including, but not limited to, the inventory of adjustment of status applications already pending with USCIS and whether they can be advanced to approval in the fiscal year, the projected percentage of applications that will not be approved, and the number of applications for the same individual but in different categories, with the stated aim of issuing as many of the available visas as possible within the fiscal year.

With these factors in mind, DOS sets cut-off dates for each preference category as needed, and USCIS determines whether applicants must follow the monthly “Dates for Filing” chart or the “Final Action Date” chart on the Visa Bulletin.

October 2022 Visa Bulletin Dates

With the publication of the October 2022 Visa Bulletin, USCIS determined that applicants may use the “Dates for Filing” chart to determine eligibility to file adjustment of status applications.  The “Dates for Filing” chart allows applicants to file their green card applications, but the applications cannot be approved until an immigrant visa is available based on the “Final Action Date” chart.

The October “Dates for Filing” for the most commonly used employment-based categories are:

EB-1 Priority Workers: 

All countries are “current.”  Individuals from all countries seeking an immigrant visa pursuant to a permanent resident petition (I-140) filed in the EB-1 category may apply.

EB-2 Members of the Professions Holding Advanced Degrees/Persons of Exceptional Ability:  

All countries except China and India are current.

China’s cut-off date is July 8, 2019.

India retrogresses by more than two years, to May 1, 2012.

EB-3 Professional and Skilled Workers:

All countries except China and India are current.

China advances to July 15, 2018.

India advances to July 1, 2012.

The UPSOT

According to DOS, the forward movement of the India priority dates experienced during FY 2022 was due to the unprecedented high number of immigrant visas available in FY 2022.  With the advancement of priority dates in FY 2022, a heavy applicant demand ensued.  This persistent demand (in the form of pending applications – those that were not approved before the annual quota was reached) coupled with significantly lower visa number availability forecasted for  FY 2023 as compared to FY 2022, required DOS to take corrective action to keep  immigrant visa issuance within the maximum allowed under the FY 2023 annual limits.  The retrogression of priority dates is the “corrective action.”

Unfortunately, this means that many Indian nationals who were able to apply for adjustment of status in FY 2021 and FY 2022 now find themselves with pending applications that cannot be approved for the foreseeable future.  While these individuals and their dependent family members (spouse and children under age 21) are eligible for work and travel authorization while their adjustment of status applications are pending, and in some instances have flexibility to change jobs,  they remain in a status limbo, and may face the prospect of their dependent children turning 21 and “aging out” of eligibility for a green card.

Looking Ahead

DOS will soon release the November Visa Bulletin. Dramatic changes from October’s Visa Bulletin are not expected. DOS will continue to monitor the inventory of pending green card applications with USCIS and  the number of immigrant visas issued  to date, and will adjust the Visa Bulletin cut-off dates as appropriate in the months ahead.

Gibney will continue to watch these developments and will provide updates as they become available.  For additional information, please contact your designated Gibney representative, or email info@gibney.com.

The author wishes to thank Law Clerk Jesse Wang for his contributions to this alert.

United States Citizenship and Immigration Services (USCIS) confirmed that the Fiscal Year (FY) 2023 H-1B cap has been reached.

USCIS conducted its initial  H-1B cap lottery  in March 2022, and employers with selected registrations had a 90-day window during which to file H-1B cap petitions for designated beneficiaries.  This year, the number of H-1B petitions submitted by employers during the initial 90-day filing window was sufficient to meet the FY 2023 statutory cap of 20,000 visas for U.S. advanced degree holders, and 65,000 visas for  “regular” cap beneficiaries.  Last year, USCIS conducted additional lotteries in August and November from reserve registrations because the number of H-1B petitions ultimately submitted and  approved during the initial 90-day filing period running from April 1, 2021 to June 30, 2021 was not sufficient to meet the annual statutory H-1B cap.

This year, there will be no additional lotteries.  USCIS has updated registrants’ online accounts to change the status of pending FY 2023 registrations from “Submitted”  to “Not Selected.”

PETITIONS NOT SUBJECT TO THE H-1B CAP

USCIS will continue to accept and process H-1B petitions that are not subject to the cap. These include filings for extensions of status, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

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