Immigration Quick Takes — January 2023

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.

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