USCIS HAS REACHED ANNUAL LIMIT OF H-1B VISAS

USCIS has announced that they have received sufficient H-1b cap petitions to reach the statutory limit of 65,000 H-1b regular cap visas and the 20,000 H-1b advanced degree visas for fiscal year 2024.

Since the H-1b cap limit has been hit for the 2024 fiscal year, there will be no further selections in the H-1b lottery for this fiscal year.

All registrants who were not selected have been sent notices through their online USCIS accounts to inform them that they have not been selected. The non-selection notice will update the registration entry to state:

“Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.” “

All currently pending H-1b cap petitions will continue to be processed normally. USCIS will also continue to accept all cap-exempt H-1bs petitions, such as:

1. Extensions and amendments to previously approved H-1bs;
2. H-1b transfers for a change in sponsoring employers;
3. H-1b concurrent petitions to allow an H-1b Beneficiary to work for multiple employers; and,
4. H-1b petitions filed by cap-exempt organizations (Institutions of higher education and affiliated non-profit organizations as well as non-profit or governmental research organizations).

The H-1b lottery will open for registrations for the US government’s 2025 fiscal year in March of 2024.

JANUARY 2024 VISA BULLETIN: DATES ADVANCE. WILL ADVANCEMENTS CONTINUE?

The Department of State has just issued the January 2024 Visa Bulletin, which is the third of the 2024 US fiscal year.  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.

Employment- based	All Chargeability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	01JUL22	01SEP20	C	C
2nd	01NOV22	01JAN20	01MAR12	01NOV22	01NOV22
3rd	01AUG22	01SEP20	01JUN12	01AUG22	01AUG22

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

This was a very positive Visa Bulletin.  Nearly every category advanced.  Philippine and All Other EB-3 leaped forward eight months, allowing thousands to obtain green cards.  China EB-3 advanced seven months.  Even India EB-3 moved forward by one month. 

Similar advancements happened in EB-2, with India and China EB-2 (each two months), and Philippine and All Other EB-2 (three and a half months) all progressing.  We even saw EB-1 advancements in India and China.  India EB-1 jumped three and a half years, and China moved ahead by four and a half months.

MU expected advancements.  We expect slow progress in the near future, with occasional bursts like in this January Visa Bulletin.  We still believe that there is some slack in the EB-3 numbers (non-India and China) and would not be surprised to see the EB-3 dates advance into late 2022 or even 2023 before the end of the summer.

DECEMBER 2023 VISA BULLETIN: ANALYSIS AND EXPECTATIONS

The Department of State has just issued the December 2023 Visa Bulletin, which is the third of the 2024 US fiscal year.  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.

Employment- based	All Chargeability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	15FEB22	01JAN17	C	C
2nd	15JUL22	22OCT19	01JAN12	15JUL22	15JUL22
3rd	01DEC21	22JAN20	01MAY12	01DEC21	01DEC21

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

This was an uneventful Visa Bulletin.   EB-2 and EB-3 Final Action Dates for China each advanced three weeks to October 22, 2019 (EB-2) and January 22, 2020 (EB-3). The Final Action Dates for all remaining employment-based categories remain as they were in November.

As we said last month, MU Law believes that the State Department is acting conservatively, which while frustrating, may prove to ratchet down the anxiety around the monthly chart, and provide a better measure of processing times for those involved. While no one likes a nearly two-year EB-3 retrogression for non-India and China, it may prove to be a stable set of dates.  We do expect these categories to slowly progress throughout the fiscal year pushing into 2022, and perhaps even into 2023.

BILL INTRODUCED TO INCREASE VISA NUMBERS FOR NURSES AND PHYSICIANS

US Senate Majority Whip Dick Durbin (D-IL) and US Senator Kevin Cramer (R-ND) introduced a bill, known as the Healthcare Workforce Resilience Act, on November 2, 2023, to address the nation’s shortage of physicians and nurses.

If passed, this bill will recapture 25,000 unused immigrant visa for nurses and 15,000 unused immigrant visas for physicians, from previous years. These visas would not be subject to the per country numerical limit that has led to lengthy waits for green cards for nurses and physicians from several countries.

Spouses and children that are accompanying or following to join these nurses and physicians, would be eligible for immigrant visas as part of this bill too. The spouses and children’s visas would not be considered as part of the 25,000 and 15,000 allocated visas for the nurses and physicians.

The nurse and physician cases would be required to be adjudicated by USCIS under USCIS’s premium processing program. There will be no additional fee for the premium processing.

10 THINGS TO KNOW ABOUT THE MECHANICS OF THE VISA BULLETIN

The Visa Bulletin is a vital tool for any applicant who is qualified to receive an immigrant visa (green card) because the Visa Bulletin notifies applicants as to whether they are eligible to receive a visa number in a particular month.

Here are the top 10 things one needs to know to understand the Visa Bulletin:

1. The employment-based (EB) visa has its own section on the Visa Bulletin where it is divided into its 5 preference categories. Every EB visa applicant falls into 1 of the 5 preference categories.

2. There are four markings on the EB visa chart to know:

a.    C: The category is current, and every eligible applicant is eligible for a visa number.

b.    Final Action Date (FAD): Only those with priority dates before the FAD will be approved and issued an immigrant visa or green card.

c.    Dates of Filing (DOF): Those with priority dates before the DOF may be able to file their I-485 or submit their civil documents to the NVC in preparation for becoming current on the FAD.

d.    U: The category is unavailable, and no applicants may receive a number.

3. No country may receive more than 7% of the annual worldwide visas available.

4. Some countries have their own FAD because they are in danger of going over the 7% limit.

5. Retrogression is when a FAD moves backwards chronologically on the next month’s Visa Bulletin, making less visa numbers available for a specific category in the coming month.

6. The EB visa and its preference categories all have annual caps that cannot be exceeded. 

7. The Department of State (DOS) cannot allocate more than 27% of the total EB visa numbers available for the entire year in one quarter of the year. There is also a 10% limit on each month.

e.    EXAMPLE: There are 140,000 EB visa numbers for the year, then 14,000 may be given out in a month and 37,800 may be given out in a quarter.

8. The 7% per country limit may be set aside if demand for an EB preference category is less than the visa numbers available for that quarter. This only lasts until the end of the quarter.

9. If an EB preference category has a “C” marking for every country, then that is an indication that the DOS is issuing visa numbers regardless of an applicant’s country for that quarter.

10. If the DOS runs out of a category before the end of the year, then the DOS will stop honoring requests for visa numbers. The category will become unavailable on the Visa Bulletin until the next government fiscal year begins. 

USCIS PROPOSES NEW H-1B RULES

On October 20, 2023, USCIS announced that it would propose new rules for the H-1B program. The proposed new rules are detailed in the Federal Register published on October 23, 2023.

While many of the proposed changes clarify or codify current adjudicative trends, other changes impose new restrictions on H-1B eligibility.

Clarifications and Codifications

• Deference to Previous USCIS Decisions

The proposed rule codifies that USCIS officers should defer to prior approvals when no underlying facts have changed at time of a new filing.

• Amended H-1B Petitions

Currently, practitioners must judge when to file amended petitions based on archived USCIS policy guidance and DOL guidance and regulation. The proposed new rule will clarify that an amended or new petition must be filed pursuant to any change in work location that requires a new LCA.

• Relaxed Requirements for CAP-exemptions

The new rules would require that nonprofit and governmental research organizations merely conduct research as a fundamental activity, which is a looser interpretation that the previous requirement that these entities be primarily engaged in research.

Additionally, the new rules would allow beneficiaries to qualify for H–1B cap exemption when they are not directly employed by a qualifying organization, but still provide essential work, even if their duties do not necessarily directly further the organization's essential purpose.

• Extension of the CAP-gap period

Currently, the CAP-gap is an automatic extension of status for F-1 students whose F-1 validity period is set to expire before H-1B petitions go into effect on October 1. This poses a particular problem for H-1B CAP beneficiaries who are chosen in second or third rounds of the H-1B CAP, who cannot begin work on October 1. The new rules would extend the CAP-gap period, which would extend both F-1 students’ statuses and work authorization, through April 1 of the year following H-1B petition submission. Such an extension would afford CAP-gap protection for F-1 students whose H-1B petitions are approved with start dates past October 1.

• CAP Lottery Selection

Under the new rule, related entities would be prohibited from submitting multiple registrations for the same beneficiary.

The rule would also select individual H-1B lottery beneficiaries, rather than registrations. Currently, a beneficiary can conceivably be selected multiple times if he or she has multiple registrations submitted on his or her behalf, resulting in low selection rates for most H-1B CAP lottery beneficiaries. The new rule would allow each beneficiary to be selected only once; if a beneficiary holds multiple registrations, each registering company would be notified of selection and provided an opportunity to file a legitimate H-1B petition on the beneficiary’s behalf.

Burdensome Requirements

• Contract Requests for Third-Party Placements

The new rule would grant USCIS authority to request contracts, work orders, or other such evidence to document bona fide job offers. The new rule would require such evidence show the contractual relationship between all parties, the terms and conditions of the beneficiary's work, and the minimum educational requirements to perform the duties. 

Currently, the regulations do not state this authority.

Specialty Occupation Definition

The new rule imposes a new requirement for qualification as a “Specialty Occupation” that there exist a direct relationship between the required degree field(s) for the position and the duties of the position. The new rule iterates that a general degree is insufficient to qualify. 

USCIS will now accept comments from the public on the proposed new rules for 60 days before a final rule may be published.

USCIS IS ISSUING FIVE-YEAR ADVANCE PAROLE TO INDIVIDUALS WHO ARE ELIGIBLE FOR FIVE-YEAR EADS

USCIS has started issuing advance parole (AP) documents with a five year validity period to applicants who are eligible for five year employment authorization documents (EADs).  USCIS recently announced that certain initial and renewal EADs, including those filed by I-485 adjustment of status (green card) applicants, can now be approved for a maximum validity period of five years.

The five year AP have been issued both combined on the EAD card and as a separate AP document.  The extended validity period for AP will reduce the number of times that applicants need to file form I-131 while waiting for the green card to be issued.

USCIS INTRODUCES ENTERPRISE CHANGE OF ADDRESS

USCIS announced on 10/12/2023 that they have launched the Enterprise Change of Address (E-COA) self-service tool This tool will allow foreign nationals to update their address with USCIS through their USCIS online account.

USCIS requires any foreign national in the US in nonimmigrant status or legal permanent resident status to update their address within 10 days of moving, regardless of whether they have a pending case with USCIS. In cases where there is a pending case, it is especially important to update the mailing address to ensure critical documents are received.

To update your address using the E-COA service, you must do the following:

    1)   Create a USCIS online account if you do not have one here.

    2)   Log in and select the “Change of Address” option at the top of the webpage and start the 4-step application to update your address:

a. Step 1 – Enter your full legal name and date of birth;

b. Step 2 -- Enter your current physical address. Answer whether the physical address is the same as the mailing address, if the mailing address is different, you must enter that here as well;

c. Step 3 – Enter your A-number if any. You can find this number on receipt or approval notices for certain case types associated with green card petitions (i.e., I-140s, I-485s, I-765s) as well as on EADs and Green Cards. Lastly, enter receipt numbers for any pending cases; and,

d. Step 4 – carefully review the information and submit.

Once the request is submitted, your physical and mailing address will be updated with USCIS for all pending cases.

At this time, the E-COA service is not available for foreign nationals applying for certain immigration benefits associated with the Violence Against Women Act (VAWA), T nonimmigrant status, or U nonimmigrant status. For a full list of the categories that are ineligible for address updates through E-COA, please refer to USCIS’s website here.

NOVEMBER 2023 VISA BULLETIN: ANALYSIS AND EXPECTATIONS

The Department of State has just issued the November 2023 Visa Bulletin, which is the second of the 2024 US fiscal year  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.

Employment- based	All Chargeability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	15FEB22	01JAN17	C	C
2nd	15JUL22	01OCT19	01JAN12	15JUL22	15JUL22
3rd	01DEC21	01JAN20	01MAY12	01DEC21	01DEC21

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

This was one of the least interesting Visa Bulletins in a long time.  All dates are exactly as they were last month, except for All Other, Mexico, and Philippine EB-2, which advanced one week.

MU Law believes that the State Department is acting conservatively, which while frustrating, may prove to ratchet down the anxiety around the monthly chart, and provide a better measure of processing times for those involved. While no one likes a nearly two-year EB-3 retrogression for non-India and China, it may prove to be a stable set of dates.  We do expect these categories to slowly progress throughout the fiscal year pushing through 2022, and perhaps getting into 2023 before the end of the fiscal year.

USCIS ELIMINATES BIOMETRIC SERVICES FEE FOR ALL FORM I-539 APPLICANTS

The U.S. Citizenship and Immigration Services (USCIS) announced it will be permanently eliminating the biometrics service fee, $85.00, when filing Form I-539, Application to Extend/Change Nonimmigrant Status. Previously, USCIS had temporarily suspended biometric services fees for only H-4, L-2, and E applicants.

Effective October 1, 2023, all applicants who file Form-I-539 to extend or change their nonimmigrant status will no longer be required to submit a biometrics service fee as part of the application process. If an applicant mistakenly submits the biometric services fee, USCIS will issue the applicant a refund.

Further, USCIS has stated that most applicants who file Form-I-539 after Oct. 1^st will not be scheduled to attend a biometric services appointment. If USCIS determines that biometrics are required, the applicant will receive a notice with information about appearing for their biometric services appointment. If an applicant has already been scheduled to appear for a biometrics services appointment, the applicant should still attend the appointment as scheduled.

USCIS INCREASES EMPLOYMENT AUTHORIZATION VALIDITY PERIOD FOR CERTAIN CATEGORIES

The USCIS updated its policy manual, regarding employment authorization documents (EADs), on September 27, 2023. The USCIS has increased the maximum validity period for EADs issued in many categories.

USCIS updated the maximum validity period for initial and renewed EADs to five years for the following categories: pending employment-based applications for adjustment of status (green card), refugees, granted asylum, granted withholding of deportation or removal, pending application for asylum or withholding of removal, and pending application for suspension of deportation or cancellation of removal.

USCIS updated the maximum validity period for initial and renewed EADs from one year to the end date of the authorized parole period, not to exceed 5 years, for those paroled as refugees.

USCIS also updated its policy manual to clarify that the Form I-94 can be used as both evidence of status and employment authorization incident to status for the following: Asylees, spouses of US citizens or children of such spouses (K-3 and K-4), victims of severe forms of trafficking in persons (T-1), spouses of E nonimmigrants (E-1S, E-2S, E-3S) with limited exceptions, spouses of L nonimmigrants (L-2S), and victims of qualifying criminal activity (U-1) and certain qualifying family members (U-2, U-3, U-4, and U-5).

This guidance is effective immediately and applies to EAD applications pending or filed on or after September 27, 2023.

POTENTIAL GOVERNMENT SHUTDOWN: HOW IT AFFECTS YOUR IMMIGRATION CASE

Unless Congress passes a spending bill in the coming week, the US government will shut down at midnight on Sunday, Oct. 1. However, not all immigration processes will halt immediately in light of a shutdown.

Immigration cases proceed through several different government agencies. A shutdown will affect certain agencies (and thus their processes) differently than others. 

What will Halt as of an Oct. 1 Shutdown 

DOL

Most significant to employment-based immigration cases, the Department of Labor (DOL) will not operate during a government shutdown.

Labor Condition Applications (LCAs), required for H-1B and E-3 filings, and Permanent Labor Certifications (PERMs), required for I-140 filings, cannot be drafted or filed during a government shutdown, and pending LCAs and PERMs will not be issued during a shutdown.

Further, the DOL confirmed to the American Immigration Lawyers Association (AILA) that the full FLAG online filing system will be disabled during a government shutdown. LCA and PERM records cannot be accessed online or printed from the FLAG system during a shutdown.

The DOL and MU recommend that all LCA and PERM filings be filed this week, prior to the potential shutdown. While LCAs typically take at least 7 days to be adjudicated by the DOL, the DOL indicated that it will attempt to adjudicate LCAs that are received this week prior to the potential shutdown.

Finally, the DOL may allow flexibility for employers who miss filing deadlines due to the government shutdown; if such guidance is issued, MU will update its blog accordingly.

What May Proceed after an Oct. 1 Shutdown?

USCIS

Cases that will be filed with or are currently pending with US Citizenship and Immigration Services (USCIS) will likely proceed without issue during a shutdown. In past shutdowns, USCIS has accepted late immigration filings that could not be timely filed due to the government shutdown.

DOS

Embassy services, such as visa appointments, are run by the Department of State and are also unlikely to be affected during a shutdown.

CBP

Entries to the US, including Canadian TN appointments, are handled by Customs and Border Patrol and are also unlikely to be affected by a shutdown.

If you are unclear how the shutdown will affect your case, clients are encouraged to contact their MU attorney for best strategies in the week ahead and during the potential government shutdown.