H-1B LOTTERY COMPLETE

USCIS has announced that it has received more than 85,000 registrations during the registration period to reach the fiscal year (FY) 2023 H-1B cap.  The annual H-1B limit is 85,000, which is the H-1B cap.  Accordingly, the USCIS processed the H-1B lottery.  Musillo Unkenholt has begun the process of notifying our clients who are H-1B lottery winners that they are eligible to file an H-1B cap-subject petition.

H-1B cap-subject petitions for FY 2023 may be filed with USCIS beginning April 1, 2022 through June 30, 2022. 

Please keep in mind that “winning” the lottery does not guarantee an H-1B approval.  Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still establish eligibility for petition approval at the time the petition is filed and through adjudication, based on existing statutory and regulatory requirements.

In past years, the USCIS has not received enough H-1B cap petitions during the April 1-June 30 period to meet the 85,000 H-1B annual limit.  If this happens this year, USCIS will conduct subsequent lottery selections until it has approved 85,000 H-1B petitions.

USCIS POLICY ALERT: DOCUMENTATION OF EMPLOYMENT AUTHORIZATION OF CERTAIN E AND L SPOUSES

On March 18, 2022, USCIS issued a Policy Alert, and updated its Policy Manual accordingly, to apprise certain spouses of E and L nonimmigrants how the USCIS plans to verify their employment authorization.

As of November 12, 2021, USCIS has indicated that certain E-1, E-2, E-3 and L-2 nonimmigrant dependent spouses will be granted employment authorization incident to status.  

 In its updated Policy Alert on the issue, USCIS indicates that:

• As of January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Forms I-94 with the following new Class of Admission (COA) codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S.

An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form I-9.

• For E and L spouses with Forms I-94 issued by USCIS prior to January 30, 2022 (with notations E-1, E-2, E-3, E-3D, E-3R, or L-2), USCIS will mail a notice regarding the new COA codes that, together with an unexpired Form I-94 reflecting E-1, E-2, E-3 E-3D, E-3R, or L-2 nonimmigrant status, may serve as evidence of employment authorization under List C of Form I-9.

USCIS intends to begin mailing notices on or about April 1, 2022.

USCIS ENCOURAGES ELIGIBLE INDIVIDUALS TO FILED I-485S IN THE EB-2 INDIA CATEGORY BASED ON THE APRIL VISA BULLETIN

The recently published April Visa Bulletin advanced the Date for Filing, or Chart B, for the employment-based, second preference (EB-2) category for India a whole year, to September 1, 2014. In addition, USCIS also updated its website to reflect that foreign nationals may use this Date for Filing, or Chart B, date in applying for adjustment of status.

With this publication, USCIS released a statement encouraging those eligible to apply under EB-2, to go ahead and apply. In conjunction with this recommendation, USCIS is also encouraging eligible applications to request to transfer pending adjustment of status cases to EB-1 or EB-2 categories if they meet the following criteria:

1.   A visa is unavailable to them in the EB-3 category;

2.   They have a pending or approved Form I-140; and

3.   A visa is available in the EB-1 or EB-2 category.

If you have any questions regarding your eligibility for the above benefits, please reach out to your MU attorney. The full USCIS statement on this topic is available here.

APRIL VISA BULLETIN: FUTURE EB-3 RETROGRESSION?

The Department of State has just issued the April 2022 Visa Bulletin.  This is the seventh Visa Bulletin of Fiscal Year 2022. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

 

EB	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01MAR19	08JUL13	C
3rd	C	22MAR18	15JAN12	C

Table B: Dates of Filing

The USCIS is expected to use the Table B Dates of Filing chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

The chart stayed similar to the past month’s Visa Bulletin.  One bright spot was that India EB-2 moved ahead by 2+ months, which should allow additional long-delayed Indian nationals to apply for their green cards.  Unfortunately, China EB-2, India EB-3, and China EB-3 stayed the same. 

The news remained positive for Philippines and Worldwide EB-3, where dates held at Current.  However, there is one important note at the end of this month’s Visa Bulletin, which bears watching in future months, as it would affect both Philippines and Worldwide EB-3,

F. AVAILABILITY OF EMPLOYMENT THIRD PREFERENCE “OTHER WORKERS” (EW) NUMBERS

High number use in the Employment Third Preference “Other Workers” (EW) category may necessitate the establishment of a worldwide final action date as early as June to hold number use within the maximum allowed under the Fiscal Year 2022 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

H-1B CAP LOTTERY DEADLINE – FRIDAY, MARCH 18, 2022

The USCIS’s annual H-1B Cap lottery registration window will close on Friday, March 18, 2022 at noon Eastern. All entries into the Fiscal Year 2023 lottery must be submitted by noon Eastern on Friday, March 18, 2022 to be registered and eligible for selection.

Musillo Unkenholt encourages registering all candidates as soon as possible to avoid any technical issues or delays.

If an employer has candidates they would like to enter into the lottery, the employer should reach out to their Musillo Unkenholt attorney as soon as possible.

The USCIS intends to notify registrants selected in the first round of the lottery by March 31, 2022. The USCIS is expects to conduct multiple rounds of selection until it reaches the 85,000 H-1B quota. Registrants not selected by March 31 may still be selected during a later ro    und.

USCIS REACHES H-1B CAP FOR H-1B CAP CASES FILED IN LAST YEAR’S H-1B CAP LOTTERY (FISCAL YEAR 2022)

On February 28, 2022, USCIS announced that they received a sufficient number of petitions to reach the 65,000 H-1B regular cap and 20,000 H-1B master’s cap, for fiscal year 2022 (October 2021 to October 2022).  It is important to note, this announcement is for registrations submitted in March 2021.  New registrations for fiscal year 2023 (October 2022 to October 2023) can be submitted.

For all non-selected cases, the attorney of record and petitioner should have received a non-selection notification through the registration on the USCIS website. The status for registrations properly submitted, but not selected, will state: Not Selected: not eligible to file an H-1B cap petition based on this registration.

USCIS will continue to accept H-1B cap exempt petitions and H-1B petitions for workers that have previously been counted against the cap.