USCIS ANNOUNCES END OF COVID-RELATED FLEXIBILITIES

On March 23, 2023, the U.S. Citizenship and Immigration Services (USCIS) announced the end of certain flexibilities initially introduced during the COVID-19 pandemic. Prior to March 23, 2023, applicants and petitioners were granted an automatic 60-day extension when responding to certain notices and requests.

Effective immediately, notices and requests dated after March 23, 2023, must be responded to by the deadline listed in the notice or request. This includes:

• Requests for Evidence;
• Continuations to Request Evidence (N-14);
• Notices of Intent to Deny;
• Notices of Intent to Revoke;
• Notices of Intent to Rescind;
• Notices of Intent to Terminate regional centers;
• Notices of Intent to Withdraw Temporary Protected Status; and
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

Applicants who wish to file Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings, must also comply with the deadlines stated on the form instructions.

Upon request, the USCIS will continue to provide certain flexibilities on a case-by-case basis if the petitioner or applicant is affected by an emergency or unforeseen circumstance, such as such as natural catastrophes, national emergencies, or severe illness.

FISCAL YEAR 2024 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) 2024 H-1B cap.  Musillo Unkenholt has begun the process of notifying clients if their cases were selected or not selected in the H-1B lottery. Selected cases can file an H-1B petition with USCIS beginning April 1, 2023 through June 30, 2023. 

“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.

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

USCIS BEGINS ISSUING ADIT STAMPS VIA MAIL FOR QUALIFYING LAWFUL PERMANENT RESIDENTS

On March 16, 2023, USCIS announced that they will begin issuing Alien Documentation, Identification, and Telecommunication (ADIT) stamps through the mail for qualifying Lawful Permanent Residents (LPRs).

An ADIT stamp provides temporary evidence of LPR status and can be requested in situations where a LPR cannot rely on their Green Card for evidence of status. An ADIT stamp can be requested when:

1. The LPR no longer has their Green Card; or
2. The LPR’s Green Card expired while a Form I-90, Application to Replace Permanent Resident Card; Form I-751, Petition to Remove Conditions on Residence; or, Form N-400, Application for Naturalization is pending and any automatic extension of their green card has also expired.

Previously, a LPR had to make an appointment with a USCIS field office and have their passport physically stamped to obtain an ADIT stamp. Now in qualifying cases USCIS will issue ADIT stamps by mail.

 The new procedure for obtaining an ADIT stamp through the mail is:

1.  The LPR calls the USCIS contact center at 800-375-5283 and explains why they need temporary evidence of LPR status.
2. The LPR identifies themselves and provides their mailing address. At this time, USCIS will check whether the mailing address provided can receive UPS or FedEx express mail. Since USCIS will issue the stamp via UPS or Fedex, a P.O. Box should not be provided as the mailing address as P.O. Boxes only receive USPS mail.
3. If USCIS determines that the LPR qualifies to receive an ADIT stamp through the mail, then they will mail a Form I-94 with an ADIT stamp, DHS seal, and a printed photo of the LPR from USCIS systems.

In cases where there is an urgent need for an ADIT stamp, USCIS will provide an appointment at a Field Office. Additionally, USCIS will not issue an ADIT stamp via mail if they cannot confirm the LPR’s identity or address, or if they do not have a useable photo of the LPR in their systems.

APRIL 2023 VISA BULLETIN: ANALYSIS AND PREDICTION

The Department of State recently issued the April 2023 Visa Bulletin. 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	01FEB22	01FEB22	C
2nd	01JUL22	08JUN19	01JAN11	01JUL22
3rd	C	01NOV18	15JUN12	C
Other workers	01JAN20	01OCT14	15JUN12	01JAN20

Table B: Dates of Filing

The USCIS will be using Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications. See: USCIS Visa Bulletin Dates   

MU Law Analysis 

This month again there was good news and bad news for the retrogressed EB-2 and EB-3 categories. 

There was a retrogression in all categories of EB-2 except China due to high demand. Philippine and ROW retrogressed by four months whereas India unexpectedly retrogressed by nine months.  

The news remains positive for Philippine and Worldwide EB-3, where dates held at Current. China EB-3 progressed three months, which was unexpected, good news. 

 

Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months. This means that all EB-3 categories are expected to retrogress by the end of the fiscal year.

EB-3 Other Workers, which is the category for occupations such as Nurse Aides, remains retrogressed but held steady to January 2020 for Philippine and ROW.  

USCIS UPDATES GUIDANCE ON EMPLOYERS’ ABILITY TO PAY REQUIREMENTS FOR GREEN CARD CASES

To obtain an I-140 approval, the sponsoring employer must be able to demonstrate that the employer has the ability to pay the required wage to the sponsored employee. 

The USCIS updated its policy manual, regarding ability to pay, on March 15, 2023. In order to establish the ability to pay for a green card case, the employer/sponsor must include one of the following:

(1) employer’s annual report,

(2) employer’s federal tax returns, or

(3) employer’s audited financial statement, with the I-140 filing.

However, if the employer has more than 100 workers, a financial officer statement can be included in lieu of one of these three documents.  The USCIS may accept the financial officer’s statement. 

If a financial officer statement is included, the statement should detail the employer’s finances and ability to pay based on having 100+ employees. Examples of financial officer statements USCIS will NOT accept can be found in the policy manual as well.

In addition to the required ability to pay evidence, USCIS will consider all evidence relevant to the employer’s financial strength that is submitted with the I-140 petition. USCIS may even request additional evidence of ability to pay from an employer. Examples of additional evidence are: employer’s bank account statements, personnel records, income and assets of others, credit limits, bank lines and lines of credit.

PREMIUM PROCESSING WILL EXPAND TO INCLUDE OPT/STEM OPT APPLICATIONS

Continuing its initiative to expand premium processing eligibility, on March 6, 2023, USCIS issued a News Release  that its premium processing program will be expanded again to include applications for OPT and STEM OPT applications.

Pending OPT and STEM OPT Applications

Beginning March 6, 2023, USCIS will accept Form I-907 (filed via paper or online) requests to upgrade to premium processing for pending EAD applications under the following categories:

·         (c)(3)(A) – Pre-Completion OPT;

·         (c)(3)(B) – Post-Completion OPT; and

·         (c)(3)(C) – 24-Month Extension of OPT for STEM students.

The Form I-907 filing fee for these classifications is $1,500.

USCIS has 30 calendar days to issue an RFE, approval, or denial on premium processing upgrade requests under these classifications.

Initial OPT and STEM OPT Applications

Beginning April 3, 2023, USCIS will accept premium processing requests (filed via paper or online) for applications in the categories above when filed together with initial OPT and STEM OPT applications.

 

 

STUDENT VISAS CAN NOW BE ISSUED UP TO 365 DAYS IN ADVANCE OF THE PROGRAM START DATE

The Department of State has updated its webpage on Student Visas to reflect that it will now issue new students their F or M visas up to 365 days in advance of the start date for a course of study as listed on the I-20.

However, students may not enter the United States on the issued student visa more than 30 days before their program start date.

Previously, visa interviews could be scheduled only up to 120 days before the program start date.

H-1B CAP LOTTERY DEADLINE – FRIDAY, MARCH 17, 2023

The USCIS’s annual H-1B Cap lottery registration window is now open and will close on Friday, March 17, 2023 at noon Eastern. All entries into the Fiscal Year 2024 lottery must be submitted by noon to be considered timely 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, 2023. The USCIS may conduct multiple rounds of selection until it reaches the 85,000 H-1B quota, although they did not last year.