December 2022 Visa Bulletin and Immigrant Visa Availability Developments

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.

H-1B Cap Alternatives: Visa Options for the Healthcare Industry and Biotechnology Companies

The H-1B visa is among the most popular working visas in the U.S. for individuals filling professional (degree-requiring) positions.  Most H-1B visas are subject to an annual quota or “cap.”  These are often referred to as H-1B cap visas.  Because demand exceeds the number of available visas, USCIS conducts a lottery to select which applicants can have their visa application processed.  As has been the case for numerous years running, this year’s H-1B cap has been filled, and new H-1B cap visas won’t be available until the start of the next fiscal year, October 1, 2023.  Employers who do not have the option of employing international talent in L-1 visa status (reserved for multinational companies) or in E-1/ E-2 visa status (reserved for certain foreign-owned companies seeking to employ international talent having the same country of citizenship as the company’s ownership), are left wondering – are we really out of options until October 1, 2023?

The good news is, employers in the healthcare industry and biotechnology industry have several alternatives to H-1B Cap visas.  Here are key visa sponsorship options to consider.

E-3 visa and H-1B1 visa
Available only to citizens of Australian (E-3 visa), Chile (H-1B1 visa), and Singapore (H-1B1 visa) by treaty, these visas have very similar education requirements to the H-1B visa and are reserved for professional positions. As many job candidates in the healthcare and biotechnology industries have a least a Bachelor’s level education, and many jobs in these industries require the same, the E-3 visa and H-1B1 visa are generally good alternatives for Australian, Chilean, and Singaporean nationals working in these industries.   Examples of eligible positions include physicians, IT professionals whose position requires a bachelor’s degree, engineers, pharmacologists, scientific researchers, postdoctoral fellows, registered nurses requiring a bachelor’s degree, therapists, and clinical lab scientists, among others.  While the E-3 and H-1B1 visa categories are also subject to an annual quota, the quota has never been reached.

TN visa
Available only to citizens of Canada or Mexico pursuant to the U.S. Mexico Canada Agreement (USMCA), these visas are available for a specific list of occupations, many of which include occupations in the healthcare and biotechnology industries. Most but not all of the designated occupations require a bachelor’s degree. Examples of eligible positions include registered nurses, computer scientists, mathematicians/Statisticians, Research Assistants, Scientific Technicians, Medical Lab Technologists, Occupational Therapists, Physical Therapists, Pharmacists, Pharmacologists, Teaching or Research Physicians, Psychologists, Biologists, Chemists, Biochemists, Epidemiologists, Geneticists, Dentists, Computer Systems Analysts, Engineers, and Teachers (college and university level), among others. The TN visa is not subject to an annual quota.

F-1 visa, STEM extension
The F-1 visa is a student visa. After students graduate from college or university, they are generally eligible for a 1-year work card to gain practical training in their field of study. Often, employers apply for an H-1B visa for F-1 students, but if the F-1 visa holder is not selected under the H-1B cap lottery before their 1-year work card expires, there may be more options for students with a U.S. degree in Science, Technology, Engineering, or Mathematics (STEM).

Specifically, these students may be eligible for a 2-year extension of their work card (for a total of 3 years of work authorization).  This allows employers in the healthcare industry and biotechnology industry to enter the employee in the H-1B cap lottery for three consecutive H-1B cap lottery seasons, thereby increasing their chance for selection.

Employers who wish to sponsor a STEM extension for an F-1 student must enroll in the online E-Verify employment verification system.  Examples of STEM eligible positions include IT professionals (such as computer programmers, computer scientists, network and system administrators, computer engineers, etc.), environmental scientists, engineers, pharmacologists, scientific researchers (such as biologists, biochemists, chemists, etc.), postdoctoral fellows, pathologists, and clinical lab scientists, among others.  The STEM extension is not subject to an annual quota.

O-1 visa
This visa type is available to those who have reached a level of sustained acclaim and distinction in their field. Factors for O-1 consideration include original and significant contributions to their field; publication of scientific articles in peer-reviewed journals; media attention or work being highly cited; high salary or other compensation; manuscript review or other review of peers; national or international professional awards; memberships in selective professional organizations; and leading/critical roles for a distinguished organization.  This visa category is generally available to accomplished scientists (principal scientists and associate scientists, research scientists or research associates, postdoctoral fellows, biologists, biochemists, chemists, epidemiologists, etc.) as well as physician-scientists (including residents and fellows), though other professions can also qualify.  The O-1 visa is not subject to an annual quota.

J-1 visa
This visa type has several sub-categories and is available for temporary/term employment to those individuals who are early in their careers and who require training or practical experience (such as interns or postdoctoral fellows), or to those more established in their careers visiting for a finite period (such as professors, visiting scholars, or visiting fellows).  In addition, certain J-1 students enrolled in a U.S. college or university are also eligible for work authorization (academic training) for up to 18 months after graduation, with STEM degree holders eligible for a total of up to 36 months of academic training.  Examples of J-1 student STEM positions include IT professionals (such as computer programmers, computer scientists, network and system administrators, computer engineers, etc.), environmental scientists, engineers, pharmacologists, scientific researchers (such as biologists, biochemists, chemists, etc.), and postdoctoral fellows, among others.  Notably, physicians in medical training (such as medical residents and fellows) may also be sponsored under the J-1 visa category.  Depending on the specific type of J-1 visa, the educational requirements differ (J-1 intern/trainee visas often require a foreign degree or enrollment in a foreign college/university) and the period of allowable maximum stay differs as well (ranging from 12 months to seven years).  The J-1 visa is not subject to an annual quota.

Cap-exempt H-1B visa
Not all H-1B visas are subject to an annual quota – these are called cap-exempt H-1Bs. In general, an employer is exempt from the quota if they are an institution of higher education, a related or affiliated nonprofit entity, or a nonprofit or governmental research organization.  Organizations such as non-profit teaching hospitals (affiliated with a college or university) can thus sponsor professionals without the visa being subject to the H-1B cap.  Importantly, for-profit institutions that will physically employ a professional at a cap-exempt institution (such as a non-profit teaching hospital) can sponsor the professional without the visa being subject to the H-1B cap.  This can benefit private practice physicians, who often physically perform their work at non-profit teaching hospitals.  Physicians serving in a health professional shortage area (HPSA) may also be eligible for a cap-exempt H-1B visa.  In addition, if a cap-subject employer wishes to concurrently hire a professional who is working pursuant to a cap-exempt H-1B visa, it may do so without the visa being subject to the cap, as long as the professional also maintains the cap-exempt employment in H-1B status. (A common scenario is when a visa candidate has a part-time job in H-1B status with a cap-exempt employer and another part-time or full-time job in H-1B status with a cap-subject employer).  Examples of eligible positions include physicians, IT professionals whose position requires a bachelor’s degree, engineers, pharmacologists, scientific researchers (such as biologists, biochemists, chemists, etc.), postdoctoral fellows, registered nurses whose position requires a bachelor’s degree (very limited), physical therapists, speech therapists, occupational therapists, and clinical lab scientists, among others.  While cap-exempt H-1B visas are not subject to an annual quota, they are subject to the general H-1B maximum work period of six years (some exceptions apply).

Schedule A immigrant petition
While this is not a temporary work visa, and is instead a green card-based petition, it can provide an option for employers seeking to hire nurses who are not eligible for the TN visa (because they are not Canadian or Mexican citizens), and whose position is not eligible for H-1B sponsorship due to the position not requiring a bachelor’s degree. Due to a national shortage of nurses, the government allows for an expedited green card process (Schedule A process) that allows the employer to bypass the typical labor market test required for many green card-based petitions.  Schedule A petitions do not provide an immediate hire date as temporary visas often allow, but these applications can facilitate hiring within a one-to-two-year period for nurses waiting outside the U.S. for employment. Physical therapists are also eligible for a green card process through Schedule A but may have an immediate hire option of an H-1B if the employer qualifies for a cap-exemption listed above.

U.S. immigration benefits available under our current statutory scheme often fall short of meeting the needs of U.S. employers.  Fortunately treaties granting special visa options for citizens of Canada, Mexico, Australia, Singapore, and Chile, along with a domestic policy focused on retaining STEM professionals, has created a wide variety of visa options for professionals in the healthcare and biotechnology industries.  Given these alternatives to the H-1B cap visa, employers in these industries are better-positioned to hire, or continue to employ, international talent.

 

Hasta La Visa, Baby Episode 21: Go Grease Lightnin’!: Dependent Visas with Sandy from Grease

In this episode, Shai and Roderick break into song and dance as they discuss the 1978 cinematic musical sensation, Grease, starring John Travolta and Australian actress Olivia Newton-John. In particular, they try to figure out what type of U.S. visa status Newton John’s character, Sandy, an innocent Australian high school student, might have had.

The Immigration concepts they will explore include dependent visa status and permitted dependent visa status activities. Plus, Shai and Roderick talk all time big screen musicals and special guest Joanna DiBenedetto makes her return to weigh in on the cultural impact of the film.

Listen to this podcast on:

Apple | Spotify | Stitcher TuneIn | Amazon

About the Hasta La Visa, Baby Podcast

The Hasta La Visa, Baby podcast presents real world U.S. immigration law concepts in a fun and unique  format. This series is a deep-dive into the relationship between U.S. immigration law and fictitious characters from popular television shows and films. Hosted by Gibney Immigration Group attorneys Shai Dayan and Roderick Potts, each episode focuses on a featured character from a well-known show or film and guides listeners through an in-depth and entertaining exploration into the possible U.S. visa status that the character may have held while in the U.S.

Planning Ahead For Holiday Travel: Immigration Checklist

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

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

 

Hasta La Visa, Baby Episode 20: My Son Works?!: Diplomatic Visas, Tourist Visas, Unlawful Employment, and Trademark Infringement with Prince Akeem in Coming to America

In this episode, Shai and Roderick sow their podcasting oats by celebrating Coming to America, starring Eddie Murphy as Prince Akeem. From palace life in Zamunda to tenement living in Queens, New York, our co-hosts figure out how the heir to the throne of a wealthy African nation ended up pursuing the daughter of a fast food restaurant owner, with some very questionable business practices.

The Immigration concepts they will explore include Diplomatic visas, Tourist visas, and unlawful employment. Plus, Shai and Roderick consult with a special guest to discuss trademark infringement in the fast-food industry.

Listen to this podcast on:

Apple | Spotify | Stitcher TuneIn | Amazon

About the Hasta La Visa, Baby Podcast

The Hasta La Visa, Baby podcast presents real world U.S. immigration law concepts in a fun and unique  format. This series is a deep-dive into the relationship between U.S. immigration law and fictitious characters from popular television shows and films. Hosted by Gibney Immigration Group attorneys Shai Dayan and Roderick Potts, each episode focuses on a featured character from a well-known show or film and guides listeners through an in-depth and entertaining exploration into the possible U.S. visa status that the character may have held while in the U.S.

Gibney Attorneys Recognized in 2022 Super Lawyers

Gibney attorneys were recognized in New York Super Lawyers 2022. Super Lawyers recognizes lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.

Gibney attorneys recognized include:

Intellectual Property
Brian Brokate
Jeffrey Dupler
Beth Frenchman-Gellman

Litigation
W. Lee Kinnally, Jr.

Immigration
Stephen J.O Maltby

The following attorneys were also recognized as 2022 New York Metro Rising Stars:

Kristen J. Heckman, Immigration
Zarina H. Syed, Immigration
Maja Szumarska, Intellectual Property

Diversity Visa Lottery for FY 2024 Now Open

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.

H-1B Cap Petitions Effective October 1, 2022

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.

 

 

USCIS Offers Premium Processing for More Permanent Resident Petitions

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.