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.