Immigration Quick Takes — February 2023

Posted on February 27, 2023 by Parker Gallini LLP

FY2024 H-1B Lottery Update

With 85,000 new H-1B visas becoming available for Fiscal Year 2024, U.S. employers seeking to sponsor foreign national workers in “specialty occupation” positions across all industries will be able to begin registering for the annual H-1B lottery on March 1.

Because the H-1B category is not restricted by country of citizenship or field of work – and because the H-1B is the only dual-intent nonimmigrant visa category that allows indefinite extensions for foreign nationals subject to immigrant visa backlogs – the demand for H-1B visas significantly exceeds supply each year. As a result, the U.S. Citizenship & Immigration Service (USCIS) allocates new H-1B visas using a computer-based lottery system, selecting H-1B Cap Registrations submitted through USCIS’ online portal, myUSCIS. New cap-subject H-1B visas are allocated as follows:

Regular Cap: Regular Cap H-1Bs are available to foreign nationals from any country of citizenship who qualify for the H-1B classification by having a minimum of a U.S. or foreign Bachelor’s degree or a combination of education and experience that is equivalent to a U.S. Bachelor’s degree.

Master’s Cap: Master’s Cap H-1Bs are available to foreign nationals from any country of citizenship who have earned a Master’s (or higher) degree in the U.S. Foreign nationals eligible for the Master’s Cap are also eligible for the Regular Cap and may be selected in either lottery, increasing their odds of selection overall.

USCIS runs the lottery process for the Master’s Cap and Regular Cap in two steps. First, USCIS selects enough H-1B registrations to satisfy the Regular Cap from a pool that includes both Regular and Master’s Cap H-1B registrations. Then, USCIS selects enough H-1B registrations to satisfy the Master’s Cap from the remaining Master’s Cap H-1B registrations. In past years, USCIS has run subsequent lotteries as needed to satisfy both caps. In FY 2023, USCIS only ran one lottery.

In 2023, the USCIS will accept Fiscal Year 2024 H-1B Cap Registrations between March 1st and noon on March 17th. At the end of March, USCIS will conduct the H-1B lottery and selected registrations will be identified in employer and attorney myUSCIS accounts. Once notified of selection, the sponsoring employer will have 90 days, from April 1st to June 30th, to prepare and submit an H-1B visa petition to USCIS. If the H-1B petition is approved, it will become effective on October 1, 2022.

F-1 foreign students who have graduated and are employed pursuant to OPT employment authorization or who will complete a degree program during the H-1B filing window
J-1 foreign scholars or researchers
Foreign nationals in other nonimmigrant statuses that present intent or timing challenges for green card sponsorship (TN, H-1B1, L-1 from countries subject to immigrant visa backlogs, and others
Foreign nationals in derivative H-4 or L-2 status with employment authorization which is tied to the continuing status of their H-1B/L-1 spouse
Foreign nationals who are currently living outside of the U.S.

An employer may submit only one registration for each foreign national worker – if an employer submits more than one registration for the same worker, the USCIS will reject all registrations for that worker as duplicates.
Now is the time to review your existing foreign national employees to see if any would be a good candidate for the H-1B visa and if your company and the employee would benefit from their having this status. Take a look at this year’s overview of the H-1B lottery and contact your Parker Gallini immigration attorney to discuss any questions you have about the H-1B program.

USCIS Processing Dependents’ H-4/L-2 and EAD Applications Concurrently with Form I-129

Reaching a settlement with the plaintiffs in the Edakunni v. Mayorkas lawsuit, the Department of Homeland Security (DHS) is implementing structural changes to USCIS procedures to allow for concurrent processing of Form I-539, Application to Extend/Change Nonimmigrant Status and Form I-765, Application for Employment Authorization for dependents in H-4 and L-2 status when these applications are filed together with Form I-129, Petition for a Nonimmigrant Worker. Effective immediately, the USCIS will process and approve H-4 and L-2 extension and change of status applications and Employment Authorization Document (EAD) applications filed together with the principal’s H-1B or L-1 visa petition. Concurrent processing applies whether the principal’s Form I-129 is filed with standard or premium processing. This procedural change will benefit dependent spouses by reducing the lengthy processing times for Form I-539 and Form I-765 Applications, decreasing the chances that they will lose documentation of status or work authorization due to long processing delays

Flexibility Extended for Deadlines for Responses to Requests for Evidence and Other Agency Requests

U.S. Citizenship and Immigration Services (“USCIS”) has extended flexibility to respond to Agency requests received through March 23, 2023. Initially adopted in March of 2019 in response to the COVID-19 pandemic, this rule extends by 60 calendar days the due date for responses to various Agency requests. The rule applies to the following types of USCIS requests: 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.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA) to be timely filed if received within 90 calendar days after the issuance of a decision or denial of a case dated between November 1, 2021, and March 23, 2023.
USCIS has indicated that this will be the final extension of COVID-19 related flexibilities and that requests and notices dated after March 23, 2023 will be subject to the time limitations enumerated in the request or notice.

For more information about this extension of COVID-19 related flexibility in responding to Agency requests, contact your Parker Gallini immigration attorney or see this USCIS notice.

New DHS Parole Program for Nationals of Cuba, Haiti, Nicaragua, and Venezuela (the “CHNV Parole Program”)

President Biden announced a new program on January 5, 2023 that expands eligibility for temporary admission to the U.S. to nationals of Cuba, Haiti, Nicaragua, and Venezuela and their immediate family members. The program, also known as the “CHNV Parole Program” requires beneficiaries to have a U.S.-based sponsor, apply and be approved in advance of arriving in the U.S., and travel to the U.S. by flight rather than via a land border. Applicants must also “undergo and clear robust security vetting” and “warrant a favorable exercise of discretion.” Qualified beneficiaries of the program will be issued advanced travel authorization and may be admitted to the U.S. for a temporary period of up to two years. Travel authorization is limited to 30,000 individuals each month across all countries included in the program.

To initiate the application process, interested individuals must have their U.S.-based supporter fill out and submit to U.S. Citizenship and Immigration Services (“USCIS”) a Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, for each beneficiary they are committing to support, including minor children. In addition to completing the form, would-be sponsors must demonstrate sufficient proof of income to support beneficiaries for the two-year period that they would be paroled into the U.S. Qualified sponsors must reside in the U.S. and can include U.S. citizens and permanent residents, asylees and refuges, and individuals with temporary statuses, including TPS or deferred action. Would-be sponsors do not have to be related to the beneficiaries they seek to sponsor.

USCIS and U.S. Customs and Border Protection (“CBP”) will review the supporter information provided in the Form I-134A to ensure that sponsors are able to financially support the beneficiaries they are agreeing to support. There is no fee to submit this form or to apply for the parole program. If USCIS successfully processes the Form I-134A, USCIS will reach out the beneficiary with instructions on next steps for applying and passing security and public health standards. If the beneficiary is approved, they will be issued a travel document valid for 90 days. Approved beneficiaries must then secure air travel to a U.S. city within that time frame. Upon arrival in the U.S., beneficiaries of the new program are eligible to apply for work authorization by submitting Form I-765, Application for Employment Authorization to the U.S. Citizenship and Immigration Service (USCIS).

You can find additional information on the processes and country specific eligibility requirements at https://www.uscis.gov/CHNV and https://www.uscis.gov/humanitarian/frequently-asked-questions-about-the-processes-for-cubans-haitians-nicaraguans-and-venezuelans.

If you have specific questions about the new parole program or being a U.S.-based supporter for someone, reach out to your Parker Gallini immigration attorney for more information.

Tagged with: immigration news
Posted in Immigration Law

USCIS Proposed Filing Fee Increases

Posted on February 27, 2023 by Parker Gallini LLP

By Shelley Starzyk, Immigration Attorney

Shelley Starzyk USCIS has proposed a new filing fee structure that may drastically increase costs for certain types of immigration filings, including some employment-based visa categories. USCIS is collecting public feedback on the proposed until mid-March, and finalized new fees are expected to be announced in the coming months. Read on to learn the details of USCIS’ proposed fee structure and the changes you may see in commonly used visa categories.

USCIS Proposed Fee Increases

On January 3, 2023, the U.S. Citizenship and Immigration Service (USCIS) proposed an increase in filing fees through a published Notice of Proposed Rulemaking. USCIS relies on collected filing fees to fund its operations, as congressional budget appropriations only account for approximately 2 to 5 percent of USCIS’ annual operating budget. This will be the first comprehensive USCIS fee increase since December 2016, with these fees intended to fund 96% of USCIS’ current operational costs. USCIS asserts that the fee increases are necessary to meet customer service obligations and provide timely adjudications, as well as all support other non-adjudicatory functions. USCIS notes that without these fee increases, they would be unable to maintain case processing times and their current backlog, which has already reached historic levels, would likely increase substantially.

USCIS’ proposed filing fee rule contains extensive changes to both filing fee amounts and the structuring of some immigration related fees. The significant changes contained in this proposed fee rule are as follows:

Setting new filing fees reflecting increases for many immigration visas and categories.
Adding new fee exemptions for humanitarian programs and preserving fee waiver requirements.
Removing fee exemptions based on the age of the applicant.
Eliminating returned check fees.
Incorporating the biometrics fee into the main benefit’s filing fee.
Lowering filing fees for certain case types when filed online.
Establishing separate fees for the I-129 Petition for Nonimmigrant Worker based on the visa classification.
Revising the 15- day Premium Processing timeframe from calendar days to only counting business days.
Requiring separate fees for the I-485 application, Form I-765 and Form I-131.

The proposed rule will drastically increase costs for certain types of employment-based immigration filings, with more modest increases for other types of filings. USCIS, in an effort to promote their online filing system has also proposed slightly lower fees for online submission of certain immigration petitions and applications. Because of the extensive list of fees that will increase, we are providing some of the highlights below, with a link to the full published proposed rule available here.

Employment Based Visa Proposed Fee Changes and Increases

Significant fee changes proposed for employment-based visas, include the following.

1. Form I-129: Fee Increases and Change in Fee Structuring

For employment based nonimmigrant visas filed on Form I-129, USCIS is increasing fees and restructuring its fee methodology. The I-129 petition form is a multi-use form submitted with many different nonimmigrant visa petition requests. This form is currently designed with one flat filing fee of $460, regardless of the type of visa being requested, with additional fees added to certain H and L petitions. The new proposed filing fee structure upends this, indicating different Form I-129 filing fees for different categories, while still upholding the additional required fees, such as fraud, ACWIA, and fees or other mandated visa-specific fees in place now. Some of the commonly seen Form I-129 nonimmigrant visa types, and the corresponding proposed USCIS filing fee increases, are outlined below:

H-1B visa petitions have a proposed filing fee increase to $780.
TN, E, P and Q visa petitions have a proposed fee increase to $1,015.
L-1 visa petitions have a proposed fee increase to $1,385.
O-1 visas have a proposed fee increase to $1,055.

2. H-1B CAP Registration Fee Increase

USCIS is proposing a significant increase for the H-1B visa CAP registration cost, raising the current $10 fee to $215 for the online H-1B CAP lottery registration process. This fee, if implemented, would not take effect until after the March 2023 H-1B CAP registration window for FY 2024 is complete.

3. Form I-539 Change or Extension of Status Applications

Under the proposed fee structure, any change or extension of status petitions filed on Form I-539 will also see a proposed increase from $370 to $620 if filed on paper, with a slightly lower fee of $525 if filed online. These fees are typically applicable for nonimmigrant employment visa dependents, who request a change or extension of status while in the United States.

4. New Asylum Program Fee – Limited to Employment Based Visa Petitions

In addition to these increased fees, USCIS is also proposing an additional “Asylum Program Fee” of $600 to be required with all nonimmigrant and immigrant employment-based petitions. This $600 fee would be required of any employer-filed Form I-129 or Form I-140 in addition to that form’s assigned filing fee, and any other government mandated fees. This fee is significant to the cost of maintaining an employee’s nonimmigrant visa, as each extension, renewal or amendment filed to USCIS on Form I-129 would require the payment of this $600 fee.

USCIS is justifying this $600 fee cost, stating “DHS has determined that the Asylum Program Fee is an effective way to shift some costs to requests that are generally submitted by petitioners who have more ability to pay, as opposed to shifting those costs to all other fee payers.” In public commentary on the proposed rule, there is significant discussion over whether allotting these fees only to employment-based visa categories is the appropriate way to distribute such costs, instead of spreading the costs as an increase across all USCIS filing fees. Should this Asylum Program fee method of funding the asylum program successfully pass the public comment period, we hope that such a fee structure would require further USCIS accountability in standardizing and reporting asylum adjudication periods and program results to these involuntary new stakeholders.

Changes to Green Card/Adjustment Application Costs

USCIS is proposing a 35%+ fee increase to green card applications (Form I-485) with a proposed flat fee of $1,540 per application, moving away from the current fees of $1225 for applicants over age 14 and $750 for applicants under age 14 who are filing concurrently with a parent. USCIS is also proposing to restructure this fee by separating out the I-485 filing fee and the fees for the associated concurrent filings of Form I-131 (Advance Parole) and Form I-765 (Employment Authorization Document). Under the current fee structure, the filing fees for an adjustment of status-based Form I-131 and Form I-765 are incorporated into the I-485 filing fee. The current fee structure makes a long pending green card application more financially burdensome on USCIS than on the applicant. USCIS’ new proposed fee structure places the financial burden of USCIS’ delayed green card adjudications squarely on applicants, charging a separate filing fee of $630 per Form I-131 application, and $650 per Form I-765 application for online or paper filing. This brings the total initial filing cost of a green card application with these standard accompanying applications to $2,820 per applicant, a total overall increase of 130% of the current filing fees. Delays in I-485 adjudication may require applicants to repay the Form I-131 and Form I-765 filing fees more than once during the pendency of their green card case to maintain travel and work authorization.

Family Based Immigration Fees

USCIS has proposed an increase to family-based immigration fees as well. Family based immigrant visa petitions (Form I-130) have a significant proposed fee increase. USCIS has proposed a fee increase for the paper filed Form I-130 from $535 to $820, while the online version of the filing will cost $710, an increase of 33 to 35%. Fiancé petitions will see a 35% increase to the current filing fee, with the new proposed fee at $720. Petitions to remove conditions on residence for two-year conditional green cards (Form I-751) will also see a substantial increase from a current fee of $680 (with biometrics) to a new fee of $1,195, a 76% increase.

Naturalization Fees

USCIS kept its proposed fee increases modest with respect to naturalization. USCIS is proposing a 19% increase in naturalization application fees, with the filing fee for naturalization now set at $760. Because the biometrics fee is now included as part of the filing fee, this is an effective increase of $35 from the prior combined biometrics fee and naturalization application filing fee cost of $725. USCIS has also proposed changes in some additional naturalization filing fees for replacing documents and preserving residence with the highest fee increase being approximately 20%.

Humanitarian Fees

The majority of humanitarian immigration related applications and petitions have seen only minor proposed increases, with some fees actually decreasing.

Conclusion

USCIS’ new proposed fee rule provides some drastic changes to fees and the way that USCIS has structured application and petition fees historically. USCIS justifies these significant fee increases as a result of the expansion in USCIS’ overall operating expenses. USCIS states that it must have additional income to meet current demands and reduce growing processing time backlogs. As this proposed fee rule is still in the comment period until March 13, 2023, it remains to be seen what the final rule and fee increases will look like. Once a new rule is published Parker Gallini will provide further guidance on what new fee requirements will look like.

Immigration Quick Takes — January 2023

Posted on January 23, 2023 by Parker Gallini LLP

Immigration Quick Takes

USCIS Expands Premium Processing to Multinational Manager and NIW Categories

For years, immigrant visa petitions in the EB-1C Multinational Executive/Manager and EB-2 National Interest Waiver (NIW) categories have been subject to long processing times, ranging from 1 year to more than 2 years for a USCIS approval. Beginning in 2022, USCIS began to phase in premium processing service for these categories. This month, USCIS announced that effective January 30, 2023, premium processing is available for all new and pending I-140 petitions for EB-1C multinational executive and manager petitions and EB-2 NIW petitions. For these categories, requesting premium processing will result in USCIS adjudication within 45 calendar days.

In the same notice, USCIS also confirmed that further expansions of premium processing to include pending Optional Practical Training (OPT) and STEM OPT Form I-765 applications will be announced in February 2023. USCIS also confirmed premium processing service will expand to initial OPT and STEM OPT Form I-765 applications in April 2023.

Update on New Final Public Charge Rule

The U.S. Department of Homeland Security (“DHS”) announced a new final Public Charge rule on September 8, 2022 that went into effect on December 23, 2022. Section 212(a)(4) of the Immigration and Nationality Act (INA) renders a noncitizen inadmissible if they are “likely at any time to become a public charge,” meaning that they are likely to become dependent on government assistance. Noncitizens found likely to become a public charge can be denied admission to the U.S. or lawful permanent residence in the U.S. Although some categories of immigrants are exempt from this test, most applicants for lawful permanent residence are subject to it.

The new rule formalizes in large part the 1999 “field guidance” that DHS has used to administer the public charge test for much of the past two decades. It replaces the 2019 Public Charge rule implemented by the Trump administration, which expanded the types of relief considered in making a public charge determination to include many non-cash government benefits historically excluded, such as Medicaid or nutrition assistance. The Biden administration stopped following the Trump-era rule on March 9, 2021 and returned to the 1999 guidance. Under the new rule, only those found likely to be primarily dependent on cash aid for income maintenance or long-term care at government expense can be denied admission as permanent residents on public charge grounds.

Applications involving the public charge test that are postmarked or electronically submitted on or after December 23, 2022 are subject to the new rule. USCIS has published a new Form I-485 Application to Adjust Status or Register Permanent Residence, dated December 23, 2022, which adds specific questions related to the public charge grounds. Adjustment of Status applications filed on or after December 23, 2022 must use the newest edition of Form I-485.

The new rule marks a return to longstanding policy that it is safe for immigrants and their families to use health, nutrition, and housing programs for which they qualify, including Medicaid and COVID care, housing, food programs, and many other vital services. Secretary of Homeland Security Alejandro N. Mayorkas said of the new rule, “This action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members. Consistent with America’s bedrock values, we will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.”

You can read more information about the new rule in the DHS press release and at the new USCIS Public Charge Resources page. Contact Parker Gallini for questions about the new Form I-485 or other topics related to the public charge rule.

January and February 2023 Visa Bulletin Updates

The Visa Bulletin for January 2023, taking us through the first third of Fiscal Year 2023, largely shows no change since the December 2022 Visa Bulletin with a few important exceptions.

The December 2022 Visa Bulletin reflected retrogressions for the EB-2 and EB-3 India visa categories, and retrogressions for the EB-2 All Countries visa categories due to high visa demand. In January of 2023, all of the backlog dates under both Final Action Dates and Dates for Filing remain the same with two exceptions. As was projected in the December Visa Bulletin, the EB-1 category for both China and India has retrogressed in both the Final Action Dates (June 1, 2022) and the Dates for Filing (February 1, 2022). This is a significant change as the EB-1 category for China and India has been Current on both charts for almost 2 years. The February 2023 Visa Bulletin is unchanged from January.

USCIS has announced that applicants for Adjustment of Status in the family and employment-based categories must use the Dates for Filing in January and February 2023.

Individuals who now have backlogged priority dates may have the opportunity to secure additional H-1B extensions as needed while awaiting visa bulletin advancement. In addition, those with pending Adjustment of Status applications that are now backlogged can continue to renew employment authorization documents (EADs) and Advance Parole travel documents as needed and may have opportunities to port employment. Consult with your Parker Gallini attorney if you have any questions about these options.

Tagged with: final public charge rule, premium processing, public charge rule, visa bulletin
Posted in Immigration Law

Developing an Immigration Sponsorship Policy — Updated Considerations for Current Conditions

Posted on January 23, 2023 by Parker Gallini LLP

Immigration answers One of the most popular articles on our website has just been updated by Immigration Attorneys John Gallini and Victoria Morte. In Managing Immigration Sponsorship: A Flexible Policy Is the Wisest Strategy, John and Vicki lay out key considerations in developing an effective and efficient immigration sponsorship policy, and stress the importance of flexibility.

Hiring and employing a foreign national, even temporarily, requires a commitment of your company’s administrative time and financial resources to successfully navigate the complex immigration system, including planning for near-term temporary work authorization and long-term strategy for green card sponsorship. Further, immigration sponsorship can be a powerful incentive and retention tool that may help to draw and retain talent.

Accordingly, efficient and cost-effective management of an immigration sponsorship requires a flexible company policy that accounts for shifts in the legal landscape, fluctuating processing times, economic volatility, and foreign national employee needs and hopes.

The article lays out the questions to ask when designing a policy such as:

Who will pay for immigration sponsorship fees and expenses?
When should Green Card sponsorship be offered?

Additionally, the article suggests key components to integrate into a flexible policy, with practical examples for implementation. Read the article here, and contact a Parker Gallini immigration attorney for assistance in developing your policy.

Tagged with: immigration policy, immigration sponsorship, immigration sponsorship policy
Posted in Immigration Law

How to Handle Layoffs Involving Nonimmigrant Visa Employees

Posted on January 23, 2023 by Parker Gallini LLP

Nonimmigrant visa layoffs Employers and nonimmigrant visa employees working at a company facing layoffs must be aware of applicable rules and available visa options in the event that employment ends.

Immigration Attorney Shelley Starzyk provides a quick rundown of what to do in the face of a layoff of a nonimmigrant visa employee. Options may include case-specific strategies involving:

60-day grace period
Portability to a new employer
Changing status
Departing USA

Read the article, Nonimmigrant Visa Employee Options Available in the Event of a Layoff, on the Parker Gallini website to learn more about the impact and obligations for employers and employees following layoffs.

Tagged with: nonimmigrant visa, nonimmigrant visa layoffs
Posted in Immigration Law

H-1B Visa Lottery: What You Should Know

Posted on January 23, 2023 by Parker Gallini LLP

Each year, USCIS runs a lottery to allocate 85,000 new H-1B visas to U.S. employers seeking to sponsor foreign national workers in “specialty occupation” positions across all industries.

Attorney Donald Parker has written a new article on our website that explains some basics and tips and what to expect in the coming H-1B visa lottery cap season. Learn more about how the lottery works, when you can submit petitions to USCIS, who is subject to the H-1B cap, and things to avoid in the process.

Now is the time to review your existing foreign national employees to see if any would be a good candidate for the H-1B visa and if your company and the employee would benefit from their having this status.

Read the article, The Annual H-1B Lottery Is Coming in March of 2023. Here’s What you Need to Know, and contact one of our immigration lawyers for assistance.

Tagged with: h-1b visa, h-1b visa lottery, lottery cap seacon
Posted in Immigration Law

Immigration Quick Takes — December 2022

Posted on December 14, 2022 by Parker Gallini LLP

Expect Delays

DOL Processing Times

The U.S. Department of Labor (DOL) has published updated processing times as of October 31, 2022, confirming that the Department continues to face internal staffing shortages and high demand. As a result, we have continued to see long delays in DOL processing times for prevailing wage requests and permanent labor certification (PERM) applications across the board.

Specifically, the DOL reported that as of October 31, it was on average processing Prevailing Wage Requests filed in January 2022, or 9 months. PERM applications are nearly as delayed, with the DOL reporting that as of October 31, 2022, they are processing PERM applications filed in February 2022, reflecting an average processing time of 8 months. PERM audit processing times reflect an additional 3-month delay, with the DOL currently performing audit reviews for PERM applications filed in December 2021. It remains to be seen whether these DOL processing times will continue to climb or whether potential economic slowdowns will reduce backlogs.

In light of these significant DOL processing delays, Parker Gallini urges employers to consider starting employment PERM-based green card cases for eligible employees at least six months or even a year sooner than previously contemplated to ensure adequate time for DOL processing. Reach out to your Parker Gallini attorney for more information about the PERM process or to start a case for your employee.

December 2022 Visa Bulletin Updates

Fiscal Year 2023 is now entering its third month, with the December 2022 Visa Bulletin reflecting retrogression in multiple employment based visa categories. USCIS has announced that they will continue to accept family and employment-based Adjustment of Status applications based on the Dates for Filing in December 2022.

The December 2022 visa bulletin reflects retrogressions for the EB-2 and EB-3 India visa categories, and retrogressions for the EB-2 All Countries visa categories due to high visa demand. For December 2022, the EB-2 India category final action date has retrogressed to October 8, 2011. The Department of State attributes this EB-2 India visa retrogression to higher than anticipated demand in the first two months of FY2023. The Department of State also noted that the first two months of FY2023 have reflected higher than expected worldwide demand for EB-2 visas, leading to a retrogression in the All Countries category to a final action date of November 1, 2022 and an application filing date of December 1, 2022. In the December 2022 visa bulletin, the Department of State also noted that it anticipates that an increased demand with lower visa number availability for EB-1 for China and India may necessitate a retrogression in this visa category in the upcoming months.

Individuals who now have backlogged priority dates may have the opportunity to secure additional H-1B extensions as needed while awaiting visa bulletin advancement. Those with pending Adjustment of Status applications that are now backlogged can continue to renew EADs and Advance Parole documents as needed and may have opportunities to port employment. Consult with your Parker Gallini attorney if you have any questions about these options.

Ripple Effect of H-1B Layoffs

November 2022 saw a surge of over 50,000 tech worker layoffs in the United States, adding to a growing total across other industries as companies respond to inflation and economic uncertainty. While tech companies are typically among the highest users of the H-1B visa program, H-1B workers are sponsored in a wide variety of positions by companies in nearly every market sector.

To transfer (or “port”) employment to a new employer and maintain status in the United States after a layoff, an H-1B worker has a grace period of up to 60 days to have a new employer’s H-1B petition filed on their behalf. If the H-1B worker’s existing I-94 expires prior to the 60-day mark, they will only have until the end of the I-94 validity to port their employment based on a new employer’s filed H-1B petition. Employers seeking to hire an H-1B worker who was recently laid off should also be mindful of the tight onboarding timeline required to keep H-1B status active.

When an H-1B employee is laid off, the sponsoring employer is required to offer to pay the cost of reasonable return transportation to a laid-off H-1B worker’s home country. Sponsoring employers should also take steps to withdraw H-1B petitions and Labor Condition Applications for each laid-off H-1B worker.

Layoffs may also have far-reaching consequences for companies and for sponsored workers who retain their jobs. In particular, in the context of PERM-based green card sponsorship, employers must comply with regulatory requirements to notify and consider all potentially qualified U.S. workers laid off within a six-month period preceding the filing of a PERM application. Potentially qualified U.S. workers includes laid-off U.S. workers who worked in the same geographic area of intended employment and in the same or a related occupation as the PERM position being sponsored. In practice, this leaves employers with the option of either delaying the filing of PERM applications for a minimum of six months following a layoff or contacting any laid-off U.S. workers who worked in the area of intended employment in the same or related occupation to invite them to apply for a sponsored PERM position. Each option presents challenges in the PERM process, potentially resulting in significant delays or even the need to begin the PERM process over again. In addition, multiple rounds of layoffs can force employers to put the PERM-based green card sponsorship process on hold company-wide for a period of time. With current U.S. Dept. of Labor prevailing wage processing times averaging 8-10+ months, restarting or delaying a PERM process can pose serious risk to H-1B workers’ maintenance of status.

With ripple effects impacting ongoing nonimmigrant and immigrant sponsorship, layoffs are far from simple to navigate. Consult with your Parker Gallini attorney as soon as possible if your company is considering a workforce reduction.

Posted in Immigration Law

H-1B Visa Cap FAQ

Posted on December 14, 2022 by Parker Gallini LLP

Immigration answers

Our H-1B Visa Cap FAQ was recently updated by Attorney Donald W. Parker

U.S. employers use the H-1B program to employ tens of thousands of highly skilled workers. USCIS allocates the limited number of new H-1B visas through a lottery system on an annual basis. This FAQ provides information about the H-1B visa registration and lottery process.

Get the answers to these most frequently asked questions on our website’s H-1B Visa Cap FAQ.

What is an H-1B Visa?
Why are H-1B visas allocated by a lottery system?
How does the lottery process work?
My case was selected in the H-1B lottery, now what happens?
Is it true that the USCIS conducts multiple lotteries each year?
Is Premium Processing available for the H-1B Lottery?
Can my employer submit multiple H-1B lottery registrations for me?
Does the Lottery Process Apply to H-1B Transfers?
What are my options if my lottery registration is not selected?

Read the full article…

Posted in Uncategorized

Immigration Quick Takes — November 2022

Posted on November 15, 2022 by Parker Gallini LLP

Flexibility Extended for Deadlines for Responses to Requests for Evidence and Other Agency Requests

USCIS has extended flexibility to respond to Agency requests received through January 24, 2023. Initially adopted in March of 2019 in response to the COVID-19 pandemic, this rule extends by 60 calendar days the due date for responses to various Agency requests. The rule applies to the following types of USCIS requests: 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.

For more information about this extension of COVID-19 related flexibility in responding to Agency requests, contact your Parker Gallini attorney or see this USCIS Alert.

Recent Examples of Marriage-Based Applications for Permanent Residency Approved Without an Interview

Parker Gallini has recently seen U.S. Citizenship and Immigration Services (USCIS) approve a small number of marriage-based adjustment of status applications without an interview. This is notable because USCIS typically requires applicants for adjustment of status to permanent resident based on marriage to a U.S. citizen to appear in person at the local USCIS Field Office for a detailed interview along with their U.S. citizen spouse. At the interview, USCIS officers typically question both spouses at length about their marriage and relationship history. These interviews can be a source of stress and anxiety for applicants and their spouses, in part because of bad publicity about the nature of some officers’ questioning of applicants and because of the high stakes of the interview outcome. Although anecdotal evidence suggests that waivers of these interviews are the exception and not the rule, Parker Gallini applauds this move to streamline the green card process for spouses of U.S. citizens and reduce the stress of the process. We are monitoring for any updates regarding changes to official USCIS policy or written criteria that would be used to decide whether to waive the interview for a marriage-based green card case, as well as information about the numbers of cases approved without an interview.

If you or someone you know is considering filing a marriage-based application for permanent residence, reach out to Parker Gallini for assistance with the process.

Latest Developments with the Petition Immigration Management Service (PIMS) System

PIMS (the Petition Information Management Service) is the U.S. Department of State’s electronic system that provides U.S. Consular posts with confirmation of nonimmigrant (H-1N, L-1, O-1, TN, etc.) visa petition approvals. Consular posts are required to verify the petition approval in PIMS before approving and issuing a petition-based nonimmigrant visa. The PIMS database is run by the U.S. State Department’s Kentucky Consular Center (KCC). One of the items included in PIMS is a scan of the approved nonimmigrant visa petition filing package. Until recently, this scan was taken from a duplicate copy of the visa petition that Petitioners were required to submitted with the original nonimmigrant visa filing package to U.S. Citizenship & Immigration Services (“USCIS”).

On October 3, 2022, USCIS indicated that it no longer requires the submission of a duplicate visa petition to accompany the original nonimmigrant visa petition filing. This is a welcome development as it will streamline the nonimmigrant visa petition filing package, cutting down on what is often a very thick filing package, as well as reducing shipping costs. Once USCIS approves a nonimmigrant visa petition, they now directly scan the petition into the PIMS system rather than sending a physical copy to the KCC to be scanned. USCIS notes that it is taking one to two weeks after approval of a case to get the scanned petition into the PIMS system.

In addition to this initial delay in uploading information to PIMS, for several months now, we have seen a marked increase in the number of nonimmigrant visa applications that are delayed because the PIMS system does not yet have evidence of the approval of the underlying visa petition. These delays can last for weeks and there is no way to confirm in advance whether a case has been properly loaded into the PIMS system. While the U.S. State Department acknowledges the delay and states that it is working to resolve it, foreign nationals travelling abroad to apply for a nonimmigrant visa face the prospect of significant delays in being issued the visa.

Finally, a reminder that because Consular posts are required to verify visa petition approvals through PIMS, a foreign national applying for a visa is not required to include the original copy of their Form I-797, visa petition approval notice as part of their visa application filing. We recommend that a visa applicant include a photocopy copy, but not the original, of their Form I-797 approval notice.

We will provide up-dates on the situation with delays in loading information into the PIMS system as we have them.

Posted in Immigration Law

USCIS and I-9 Form COVID-19 Flexibilities Roundup

Posted on October 19, 2022 by Parker Gallini LLP

Flexibilities

The Department of Homeland Security (DHS) and US Citizenship and Immigration Service (USCIS) continue to extend flexibilities for immigration benefits and compliance due to the COVID-19 pandemic. Below is a list of COVID-19 flexibilities currently in place as of October 20, 2022.

Medical Exam Physician Signature Validity

USCIS normally requires that a civil surgeon’s signature on Form I-693, Report of Medical Examination and Vaccination Record be dated no more than 60 days before filing an application for immigration benefits, including Adjustment of Status. On December 9, 2021, USCIS suspended this requirement temporarily as an accommodation for COVID-19 related delays. USCIS recently announced that they are extending this temporary suspension of the 60-day requirement until March 31, 2023. This suspension does not change the limited 2-year validity of the medical exam.

Responses to Request for Evidence and Other Response Deadline Flexibilities

USCIS has extended COVID-19-related flexibilities related to the filing of USCIS requested documentation through Oct. 23, 2022. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date listed in the following requests or notices to be timely filed, if the request or notice was issued between March 1, 2020, and Oct. 23, 2022. These flexibilities apply to the following types of USCIS requests: 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. USCIS should announce any further extensions on this response flexibility timeframe in the upcoming weeks.

I-9 Compliance Flexibilities

DHS has also extended certain COVID-19 flexibilities with respect to remote review of I-9 compliance documentation until July 31, 2023.

As of April 1, 2021, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.

If employees who were hired on or after April 1, 2021 work exclusively in a remote setting due to COVID-19 related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under INA 274A. However, once a remote employee undertakes non-remote employment on a regular, consistent, or predictable basis, or this extension of the flexibilities related to such requirements is terminated (whichever event occurs first), the employer will be expected to perform a physical inspection of the documents as required.

In the event an employer is unable to timely inspect and verify, in-person, the Form I-9 supporting documents of employee(s) hired since March 20, 2020, as described above, they may memorialize the reason(s) for this inability in a memorandum. Such a memorandum must be retained with each affected employee’s Form I-9, to be evaluated by DHS ICE on a case-by-case basis, in the event of a Form I-9 audit.

Despite these Form I-9 flexibilities, employers may choose to commence the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020.

While these remote document inspection flexibilities remain in place for now, DHS has ended a separate temporary policy that allowed for Form I-9 verification based on expired List B documents. As of July 31, 2022, employers must ensure that Forms I-9 are updated for any current employee who presented an expired List B document between May 1, 2020 and April 30, 2022.

USCIS COVID Policy on Reproduced Signature Flexibilities is now a Permanent USCIS Policy

As of July 25, 2022, USCIS has incorporated its temporary COVID 19 signature flexibility policy as a permanent USCIS policy. This signature flexibility policy allows USCIS to accept scanned, faxed, photocopied or similarly reproduced signed documents, provided that the copy is of an original document containing an original handwritten signature.

Tagged with: DHS, flexibilities, I-9 Form, USCIS
Posted in Immigration Law