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Law Offices of Kamlesh Tewary

Main Office
1974 State Route 27
Edison, NJ 08817
Ph: (732) 287-0080
Fx: (732) 287-3836

Hillsborough Office
Mountainview Plaza
856 Route 206, Bldg. B, Suite 13
Hillsborough, NJ 08844
Ph: (732) 287-3157
Fx: (732) 287-3836

Dallas Office
8751 Collin McKinney Pkwy
Suite 1102, #586
McKinney, TX 75070
Ph: (732) 287-1115
Fx: (732) 287-3836


 
Some information on recent developments in the practice of business immigration law appears below.

5/24/2024 - USCIS Clarifies Procedures for Selection of Adjustment of Status Versus Consular Processing in I-130 Cases
After a family-based I-130 immigrant petition is approved, USCIS either retains the file for adjustment of status processing or routes it to the U.S. Department of State (DOS) for consular processing, depending on the beneficiary's intent, location, and eligibility for adjustment of status. If the petitioner does not provide accurate information on the petition, it can lead to delays in the immigrant visa or adjustment of status process. Previously, USCIS retained the file where the beneficiary's intent to consular process or adjust status was not clear due to incomplete or contradictory information on the petition. In a policy change, USCIS will now use its discretion to decide whether to send the petition to the NVC or retain the petition for adjustment of status processing based on evidence of the beneficiary's most recent location, including the beneficiary's address on the petition. [link]

5/14/2024 - DOS Allowing Limited Attorney Access at Consulates
DOS has finalized a rule that allows private attorneys, interpreters, and other third parties to attend specific appointments at passport agencies, centers, and U.S. embassies and consulates overseas to assist applicants. The rule applies to appointments for U.S. passport applications, both domestically and overseas; appointments related to requests for a Consular Report of Birth Abroad or a Certificate of Loss of Nationality of the United States (CLN); and other services provided by American Citizens Services (ACS) units at U.S. embassies and consulates overseas. The rule goes into effect on June 12, 2024. [link]

5/9/2024 - June Visa Bulletin Issued
The Department of State has issued the June 2024 Visa Bulletin. USCIS has confirmed that all family-based adjustment of status applicants should use the "Dates for Filing" chart, while employment-based adjustment of status applicants should use the "Final Action Date" chart. The effective cut-off for adjustment of status filings under EB-3 India remains severely retrogressed, at August 22, 2012, while the filing cutoff for EB-2 India is April 15, 2012. [link]

5/1/2024 - USCIS Provides Statistics on FY2025 H-1B Lottery
USCIS has provided statistics for the FY2025 H-1B cap. USCIS selected 114,017 beneficiaries, resulting in 120,603 selected registrations in the initial selection. There was a significant decrease in the total number of registrations submitted for FY 2025 compared to FY 2024, including fewer registrations for beneficiaries with multiple registrations. The number of unique beneficiaries was approximately 442,000 for FY 2025, similar to 446,000 for FY 2024. The number of unique employers was around 52,700 for FY 2025, comparable to 52,000 for FY 2024. Eligible registrations decreased dramatically to 470,342 for FY 2025 from 758,994 for FY 2024, a 38.6% reduction. The average number of registrations per beneficiary was 1.06 for FY 2025, compared to 1.70 for FY 2024. USCIS attributes the reduction in registrations to its changing of the registration system to allow only one lottery ticket per applicant. [link]

4/15/2024 - USCIS Updates Definitions for Schedule A, Group II Cases
Occupations listed on the DOL's "Schedule A" list are exempt from the labor certification process (normally the first step in most employment-based immigrant cases). Currently, DOL has designated two groups of occupations under Schedule A. Group I includes registered nurses and physical therapists. Group II includes beneficiaries with exceptional ability in the sciences or arts. "Science" and "art" were not previously defined by USCIS for purposes of I-140 petitions seeking Schedule A Group II exemption. Now, USCIS has adopted its policy manual to define science or art as any field of knowledge or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill. This definition aligns with the DOL's definition of these terms, and should lead to more standardized adjudication of I-140s seeking Group II exemption from labor certification. [link]

4/12/2024 - May Visa Bulletin Issued
The Department of State has issued the May 2024 Visa Bulletin. USCIS has confirmed that all family-based adjustment of status applicants should use the "Dates for Filing" chart, while employment-based adjustment of status applicants should use the "Final Action Date" chart. The effective cut-off for adjustment of status filings under EB-3 India remains severely retrogressed, at August 15, 2012, while the filing cutoff for EB-2 India is April 15, 2012. [link]

4/10/2024 - USCIS Increases Automatic Extension Period for Certain EAD Renewals
DHS has published a rule that temporarily increases the automatic extension period of employment authorization and/or Employment Authorization Document (Form I-766 or EAD) validity from up to 180 days to up to 540 days from the expiration date on the face of the EAD, for certain EAD categories. The temporary 540-day automatic extension period is available to certain applicants who timely filed Form I-765, Application for Employment Authorization, renewal applications on or after October 27, 2023 and whose applications remain pending on April 8, 2024. The temporary increase of employment authorization to up to 540 days also applies to eligible applicants who timely file a Form I-765 renewal application on or after April 8, 2024, and on or before September 30, 2025. Under the new rule, the automatic extension period for qualifying EADs will revert to up to 180 days for applicants who timely file Form I-765 renewal applications after September 30, 2025. Not all EAD categories benefit from automatic extensions. [link]

4/5/2024 - USCIS Simplifies SSN Application Process for Naturalization Applicants
USCIS now allows applicants of Form N-400, Application for Naturalization, to request an original or replacement Social Security number (SSN) or card directly through the form, without needing to visit a Social Security Administration (SSA) office. This option is available exclusively on the new 04/01/24 edition of Form N-400, which can also be filed online. This streamlined process simplifies how new citizens update their immigration status with the SSA, although additional information may be requested by the SSA if necessary. Older editions of Form N-400, such as the 09/17/19 edition, do not include this feature. [link]

4/2/2024 - USCIS Completes Initial H-1B Registration Selection Process
As of April 1, 2024, USCIS has completed the initial electronic registration selection for the FY 2025 H-1B cap, including the advanced degree exemption. Selected registrants have been notified and can now file H-1B cap-subject petitions. Registrants' online accounts will reflect one of several statuses: Submitted, Selected, Not Selected, Denied (due to duplicate registration), Invalidated (due to failed payment), or Deleted. Petitioners with selected registrations can now file H-1B cap-subject petitions. These must be filed at the correct location or online, include the new fees effective from April 1, 2024, and be accompanied by a copy of the selection notice and evidence of the beneficiary's identity. USCIS has updated fees and introduced a new edition of Form I-129, effective April 1, 2024. Petitions must adhere to these new requirements without a grace period. USCIS now allows online filing for H-1B petitions through new organizational accounts, which also accommodate Form I-907 for premium processing. All H-1B and H-1B1 petitions must now be filed at USCIS lockbox locations, not at service centers. [link]

3/27/2024 - USCIS Clarifies Policy on Expedite Requests
USCIS has updated its Policy Manual, refining the criteria and processes for expedite requests. These requests are primarily considered for cases ineligible for premium processing, for filings by nonprofit organizations or under urgent circumstances. Eligible reasons include urgent humanitarian needs, significant U.S. government interests, clear USCIS errors, severe financial loss, or nonprofit endeavors that benefit U.S. cultural or social interests. To initiate an expedite request, individuals should contact the USCIS via their Contact Center or the virtual assistant, Ask Emma, on the USCIS website, accompanied by necessary supporting documentation. [link]

3/22/2024 - USCIS Extending Cap Registration Window Until Monday, March 25, 2024
USCIS has extended the initial registration period for the fiscal year (FY) 2025 H-1B cap. The initial registration period opened at noon EST on March 6, 2024 and was originally scheduled to run through noon EST on March 22, 2024. However, the filing period will now be open until noon EST on March 25, 2024. USCIS has extended the filing window to address numerous technical flaws and system outages experienced by registrants using the my.uscis.gov website, which was revamped for this cap season. Given the extension, our office will be accepting last-minute cap registration cases until 9:30am EST on Monday, March 25, 2024. [link]

3/19/2024 - USCIS Short-Changing EAD Applicants in Certain Dependent Categories
USCIS has indicated that renewal requests for employment authorization in the categories a17 (E nonimmigrant spouse), a18 (L nonimmigrant spouse), and c26 (H-4 spouse of H-1B nonimmigrant) are currently being handled in "batches". This means that the end validity period printed on the EAD card will be the first day of the month for all cases where the applicant's nonimmigrant status ends at any time in that month. USCIS claims that it is adjudicating EAD renewals in this way to streamline cases processing. [link]

3/11/2024 - April Visa Bulletin Issued
The Department of State has issued the April 2024 Visa Bulletin. USCIS has confirmed that all family-based adjustment of status applicants should use the "Dates for Filing" chart, while employment-based adjustment of status applicants should use the "Final Action Date" chart. The effective cut-off for adjustment of status filings under EB-3 India remains severely retrogressed, at August 15, 2012, while the filing cutoff for EB-2 India is April 15, 2012. [link]

2/15/2024 - DOL Extended Comment Period for Schedule A Expansion
The DOL has pushed back the original deadline for its Request for Information (RFI) concerning updates to its Schedule A occupations list, which are roles not requiring permanent labor certification (PERM). The new deadline for RFI comments has been moved from February 20, 2024, to May 13, 2024. The purpose of the RFI remains unchanged, aiming to gather feedback on how to assess labor shortages, the appropriateness of including STEM occupations in Schedule A to address these shortages, and the development of a clear, reliable method for identifying STEM roles with labor shortages. The RFI is likely the result of a push by the Biden administration to attract more skilled workers from abroad to work in the US tech industry, particularly in AI-related fields. Applicants for employment-based green cards who fall under Schedule A occupations can avoid the roughly 12-16 month wait for the PERM labor certification process. [link]

1/31/2024 - USCIS Announces Major Changes to the H-1B Cap Registration System
USCIS announced that the initial registration period for the FY2025 H-1B cap will run from 12 noon EST on March 6, 2024 through 12 noon EST on March 22, 2024. Under a major revision of the registration system, any cap hopeful will now get only 1 lottery ticket for the H-1B lottery, irrespective of how many employers file registrations for that person. This eliminates the benefit of filing multiple registrations, which plagued the system in prior years. If a beneficiary is selected in the lottery, every employer who filed a registration for him/her can file a full cap petition during a 90 day filing window between April and June of this year. Additional lotteries may be held later in the fiscal year depending on petition filing rates this spring. The filing fee will remain at $10 per registration this year, and employers and their affiliates are still prohibited from filing multiple registrations for a single beneficiary. Registrants should be especially aware of the loss of Master's cap eligibility for certain graduates of universities that are popular with H-1B applicants. USCIS is also making significant changes to the online H-1B registration filing system this year, with some technical improvements and easier coordination between employers and attorneys. Notably, the online filing system will allow for online filing of full H-1B cap petitions starting on April 1, including submission of I-129 and I-907 forms, supporting documents and RFE responses (if applicable). The online filing system will also begin accepting filings of non-cap H-1B petitions starting on February 28. Applicants seeking concurrent H-1B, H-4 and H-4 EAD adjudications will still be required to file paper filings. [link]

1/30/2024 - USCIS Increasing Filing Fees and Adding New Fee Types
USCIS has announced that it will be increasing filing fees for almost all form types. Most Form I-129 and Form I-140 filers will now pay an Asylum Program fee. That fee will be $0 for nonprofits, $300 for "small employers" (defined as firms or individuals having 25 or fewer full-time-equivalent employees), and $600 for all other filers. The base H-1B filing fee will remain at $460 for small employers and nonprofits, but will increase to $780 for all other petitioners filing by mail. This is in addition to the new Asylum fee and the pre-existing user fee and fraud fee. Further, small employers and nonprofits who currently pay a $460 filing fee for L-1 filings will now pay $695, while all other companies will pay $1385 (in addition to the fraud fee, if applicable). I-130 petitions will now cost $675 for paper filings and $625 for online filings. I-485 applicants who previously paid $1225 will now pay $1440. The new fees go into effect on April 1, 2024. USCIS will be issuing new form versions on April 1, 2024 to incorporate these fee increases, including a new Form I-129. For next year's cap season (i.e., March 2025), the H-1B registration process fee will increase from $10 to $215 per beneficiary. [link]

1/12/2024 - February Visa Bulletin Issued
The Department of State has issued the February 2024 Visa Bulletin. USCIS has confirmed that all employment-based and family-based adjustment of status applicants should use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains retrogressed at August 1, 2012, while the filing cutoff for EB-2 India remains at May 15, 2012. [link]

1/5/2024 - USCIS Issues Guidance on Ability to Pay in AC21 Portability Cases
Employers sponsoring beneficiaries under the EB-1, EB-2 and EB-3 immigrant visa categories must show that the company has the ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition until the beneficiary obtains lawful permanent residence. USCIS has issued new guidance stating that when a beneficiary "ports" to a new employer under AC21 while Form I-140 is pending, USCIS will only consider ability to pay requirements from the priority date until the filing of the Form I-140. That is, USCIS will not consider the new employer's ability to pay. However, as before, the new employer must still show that it has a bona fide job offer for the beneficiary. Viability concerns would be addressed based on that requirement. [link]

12/28/2023 - USCIS Announces Increase to Premium Processing Fee
USCIS has announced an inflation adjustment to premium processing fees. The adjustment increases premium processing fees as follows: the $1,500 fee increases to $1,685, the $1,750 fee increases to $1,965, and the $2,500 fee increases to $2,805. It should be noted that premium processing no longer features a single fee or processing timeframe. Fees and processing times vary by case type. The fee increases will go into effect on February 26, 2024. [link]

12/21/2023 - DOS Announces Domestic H-1B Visa Renewal Pilot Program
Under a new DOS pilot program, domestic visa renewals will be available for applicants whose last H-1B visa stamp was issued at the U.S. consulate in Canada between January 1, 2020 and April 1, 2023 or in India between February 1, 2021 and September 30, 2021. The program will initially be available only to H-1B principals (i.e., H-4 dependents excluded), with an initial cap of 20,000 applicants. The pilot program will run between January 29, 2024 and April 1, 2024, with five weekly selections of 4000 cases per week during that time period. There are a number of eligibility requirements, the main one being that the renewal applicant should otherwise be eligible for an in-person interview waiver under normal rules. The applicant must be maintaining unexpired H-1B status within the United States and the previous visa must not have been lost or stolen. Our firm is accepting domestic visa renewal applications for processing on behalf of eligible candidates. [link]

12/13/2023 - H-1B Cap Reached for Fiscal Year 2024
USCIS has confirmed that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the masters cap, for fiscal year (FY) 2024. Email notifications regarding non-selection have been sent to cap registrants' online accounts. Cap-Exempt H-1B petitions can still be filed, as usual. [link]

12/12/2023 - January Visa Bulletin Issued
The Department of State has issued the January 2024 Visa Bulletin. USCIS has confirmed that all employment-based and family-based adjustment of status applicants should use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains retrogressed at August 1, 2012, while the filing cutoff for EB-2 India remains at May 15, 2012. Fortunately, the cut-off for EB-1 India has progressed to January 1, 2021, after having been severely retrogressed last month. DOS estimates that the FY2024 employment-based annual limit will be approximately 161,000. In contrast, the FY 2023 employment-based annual limit was 197,091, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023. [link]

12/1/2023 - DOL Releases Advisory on E-3 Employer Requirements
The Department of Labor has issued an advisory on how it will enforce labor requirements for E-3 visa holders. The program is very similar to the normal H-1B visa program for specialty occupation workers. Like the H-1B program, DOL requires that employers maintain an LCA (Form ETA 9035), pay the required wage rate applicable to the E-3 worker at each permanent work site, and offer the same working conditions and fringe benefits to the E-3 worker that are offered to similarly employed U.S. workers. [link]

11/20/2023 - EAGLE Act of 2023 Introduced
Bipartisan members of Congress have introduced the "Equal Access to Green Cards for Legal Employment Act of 2023," also known as the EAGLE Act of 2023. This landmark bill proposes significant changes to the rules for employment-based green cards, family-based green cards, and H-1B visas. The same bill has been introduced in past sessions and narrowly missed passage in prior years. The bill would increase family-based visa caps from 7% to 15%, eliminate the per-country caps for employment-based visas, and apply transition rules to ease burdens on countries other than India or China resulting from the elimination of the EB country-cap. The bill also creates a special allotment of green card numbers for professional nurses and physical therapists. Further, the bill would impose limitations on H-1B filings by certain H-1B dependent companies, create a mandatory new DOL website for posting H-1B job openings, and create an opportunity for certain nonimmigrants with approved visa petitions and a 2-year waiting period to obtain Green Card status. The same bill has failed to pass several times in prior years. [link]

11/15/2023 - December Visa Bulletin Issued
The Department of State has issued the December 2023 Visa Bulletin. USCIS has confirmed that all employment-based and family-based adjustment of status applicants should use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains retrogressed at August 1, 2012, while the filing cutoff for EB-2 India remains at May 15, 2012. [link]

11/1/2023 - USCIS Reverting to 180 Day Period for Automatic Extensions of Certain EADs
By regulation, certain I-765 applicants whose EAD extensions are pending have been able to avail of a period of up to 180 days of additional work authorization during the pendency period. Due to the immense backlog in EAD applications, in May 2022 USCIS changed the upper limit of 180 days to 540 days in certain cases. This increase became available to eligible renewal applicants with pending Forms I-765 after May 4, 2022. The change was formalized through a Temporary Final Rule, which was set to expire after October 26, 2023. That temporary rule has now expired with no renewal filed. This means that USCIS has reverted to 180-day automatic extensions of EADs. It should be noted that not all EAD categories are eligible for the 180 day automatic extension. [link]

10/30/2023 - Executive Order on Artificial Intelligence
On October 30, 2023, President Biden issued an executive order aimed at managing the risks of artificial intelligence (AI). The order directs immigration agencies to draft rules that would improve visa processing for AI professionals. The order requires DOS to expand domestic view renewal eligibility to F-1 and J-1 visa applicants involved with AI (beyond the current eligibility slated to apply to H-1B visa reapplicants). The order also requires DOS to revise the Skills List that dictates which J-1 nonimmigrants are subject to the two-year home country requirement, to allow for AI professionals to stay in the US longer. It also states that DOL should consider adding AI and STEM-related occupations to the 'Schedule A' list of occupations that are exempt from the labor certification process. The agencies are also required to make unspecified changes to current procedures for the O-1, H-1B, EB-2 and International Entrepreneur Parolee programs to facilitate travel and stay for professionals working in AI and related fields. The order is a favorable development, and it remains to be seen exactly how government agencies respond to its mandate for expedited immigration procedures benefiting AI professionals and other tech workers. [link]

10/27/2023 - USCIS Clarifies Foreign Residence Requirement for J-1 Exchange Visitors
USCIS has clarified requirements for J-1 exchange visitors facing the 2-year foreign residence requirement applicable for many in the J-1 category. The USCIS memo clarifies the three exceptions to the requirement that a foreign medical graduate obtain a contract from a health care facility in an underserved area when seeking a waiver of the 2-year foreign residence requirement. The memo also provides that USCIS considers situations in which it is impossible for the benefit requestor to satisfy the 2-year foreign residence requirement on a case-by-case basis, and that USCIS consults with the Department of State in such situations. [link]

10/23/2023 - DHS Proposes Overhaul of H-1B Regulations
DHS has proposed significant revisions to the H-1B regulations. The following is a summary of the key proposals. An IT Serve lawsuit stopped USCIS from requesting project-specific contracts for IT consultants, because those requests were not supported by regulation. But now that regulation is being proposed, so RFEs requiring beneficiary-specific contracts (POs) are expected to be become more common. That said, USCIS may be abandoning the "itinerary" requirement. In an important change to the H-1B registration lottery, each unique individual will get one lottery number, irrespective of the number of companies that file registrations for that person. Duplicate registrations by related entities are still prohibited. The applicable date for H-1B "cap gap" is being extended from October 1 to April 1 of the following year. Entrepreneurs will now be able to self-petition for H-1Bs through their companies. The regulations affirm that the H-1B category requires a specific degree in a specialty, meaning that "specialty occupation RFEs" are expected to increase in frequency. The regulation also codifies (i.e., turns into regulation) several current policies that are based on memos but not regulation. The rule is only at the proposal stage and the agency is inviting public comment, but most features of the proposal will likely become law by early 2024. [link]

10/17/2023 - DOS to Allow Domestic Renewal of H-1B Visa Stamps in Early 2024
On October 17, 2023, DOS issued a preliminary notice for a new rule entitled "Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens". The final rule, once published, will lay out the eligibility criteria for participation in the Stateside Visa Renewal pilot program (pilot program). The pilot program allows certain candidates to apply for visa stamps without leaving the country. DOS had a similar program in place before abandoning it in 2004 due to screening requirements implemented after the 9/11 attacks. Based on early information, it appears that the pilot program will go into effect in early 2024. It will apply only to H-1B principals (not H-4 dependents) and will be open to nationals of countries like India, which do not have reciprocity fees. It involves similar eligibility to the interview waiver program and is limited to 20,000 applicants. DOS plans to expand stateside visa eligility at the conclusion of the pilot. Eligible visa applicants may still apply at consulates as usual. [link]

10/6/2023 - November Visa Bulletin Issued
The Department of State has issued the November 2023 Visa Bulletin. USCIS has confirmed that all employment-based and family-based adjustment of status applicants should use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains retrogressed at August 1, 2012, while the filing cutoff for EB-2 India remains at May 15, 2012. [link]

10/2/2023 - USCIS Implements New Web Form for Updating Home Address
On September 28, USCIS launched a new self-service online tool to allow individuals with a USCIS online account to update their mailing and physical address for pending applications, petitions, or requests. This eliminates the need to update the address in multiple places, fill out a paper AR-11, Alien s Change of Address Card, call the Contact Center, or visit a USCIS Field Office. Change of addresses can still be done on the prior Change of Address site, or through paper AR-11 forms when the website gives errors. [link]

9/28/2023 - USCIS Extending EAD Validity to 5 Years for Certain Categories
USCIS is increasing the maximum validity period for initial and renewal Employment Authorization Documents (EADs) to 5 years for certain noncitizens who are employment authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, and granted asylum, as well as recipients of withholding of removal and I-485 applicants (i.e., an individual receiving an EAD under the (c)(9) category based on a pending adjustment of status application). The ongoing availability of employment authorization depends on the underlying status. So, for example, if an adjustment applicant receives an EAD based on a pending I-485, and that adjustment application is denied, the ancillary employment authorization would also be terminated before the expiration date listed on the EAD. [link]

9/26/2023 - USCIS Waiving the Biometric Fee for all Form I-539 Applicants
Beginning October 1, USCIS will no longer charge the $85 biometric services fee as part of the application process for Form I-539. There was previously a temporary exemption in place for Form I-539 applicants requesting H-4, L-2, or E dependent nonimmigrant, but now the biometrics fee is waived for all I-539 applicants. In most cases, applicants in these categories will not be scheduled to attend a biometric services appointment (although USCIS may still require biometrics in certain cases). This welcome change should decrease confusion among applicants about required fees, as well as significantly improve processing time for H-4, L-2 and other I-539 categories. This change also increases the odds that an H-1B petition filed together with an H-4 extension will result in approval notices issued at the same time (as is required of USCIS by a recent court order). [link]

9/15/2023 - October Visa Bulletin Issued
The Department of State has issued the October 2023 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. Despite the new availability of around 165,000 visa numbers, the October visa bulletin shows disappointing stagnation or negligible forward movement in most categories. USCIS has also confirmed that for EB-2 (India) and EB-3 (India), "the agencies already have sufficient applications on hand to use up all of the available visas for FY 2024 and several fiscal years in the future." This dire statement suggests that Indian-born applicants who did not catch the October 2020 wave may have to wait at least a year or more for their chance to file. The USCIS update also signals the agency's opposition to Congressman Raja Krishnamoorthi's recommendation that DHS make all employment-based visas current based on the language of the Immigration and Nationality Act (INA). While expressing some frustration with visa backlogs, the USCIS statement claims "that only Congress can alleviate the statutory constraint on immigrant visa numbers." While DHS does have some unused options to alleviate burdensome backlogs, true relief will require an act of Congress. [link]

9/4/2023 - USCIS Issues Guidance Regarding 'Sought to Acquire' Requirement Under the Child Status Protection Act
On February 14, 2023, USCIS issued policy guidance to update when an immigrant visa 'becomes available' for the purpose of calculating an applicant s age under the Child Status Protection Act (CSPA). The "becomes available" date is part of the formula for determining an applicant's age under the CSPA. Each month USCIS determines which Visa Bulletin category ("Dates for Filing" or "Final Action Date") applies for purposes of filing Form I-485 based on a Form I-130 or Form I-140 petition. Under the CSPA revision, the "becomes available" date in a particular month is now based on the chart category ("Dates for Filing" or "Final Action Date") that applies when a visa number becomes available to the CSPA applicant. Another CSPA requirement is that the applicant must have "sought to acquire" green card status within 1 year of visa availability (or later if there are "extraordinary circumstances"). USCIS is now updating its policy guidance to clarify that USCIS considers the February 14, 2023 policy change to be an "extraordinary circumstance" that may excuse an applicant s failure to meet the sought to acquire requirement within one year that the visa number "became available". This change is being done to avoid penalizing adjustment applicants who did not file adjustment applicants earlier because USCIS previously only considered the "Final Action Date" category for CSPA purposes. [link]

8/25/2023 - USCIS Brings Back Infopass-Like Appointment System
USCIS announced that it has launched a new online form for individuals, attorneys, and accredited representatives to request an in-person appointment at their local USCIS field office for ADIT stamps, Emergency Advance Parole, Immigration Judge Grants, and more. It is not a self-scheduling tool and individuals cannot schedule their own appointments with USCIS. The USCIS Contact Center will review submitted forms and the availability of in-person appointments at a specific field office. Individuals may request a specific date and time for an in-person appointment, but USCIS does not guarantee that the requested appointment date will be scheduled. [link]

8/23/2023 - Extension and Redesignation of Ukraine and Sudan for Temporary Protected Status
The Temporary Protected Status (TPS) designations of Ukraine and Sudan have been extended for 18 months, beginning on October 20, 2023, and ending on April 19, 2025. The redesignations of Ukraine and Sudan allow additional nationals of each country who have been continuously residing in the United States since August 16, 2023, to apply for TPS for the first time. [link]

8/17/2023 - Department of State Fraud Unit to Increasingly Loop in Attorneys in Investigations and Research
US Consulates considering work visa applications sometimes refer cases to the Kentucky Consular Center (KCC) Fraud Prevention Unit for pre-screening and research for fraud prevention. The KCC may contact employers and client companies to verify that information presented to the U.S. Department of State is accurate and valid. Most commonly, posts request research on the existence of a position, what is involved in executing that position, the physical location of the petitioner, and where the job will be performed. Since these communications are typically initiated over email, sometimes H-1B petitioners miss such emails from the KCC. In a positive development, the KCC has announced that it will more often copy attorneys of record on emails to petitioners when conducting fraud checks or background check inquiries. This change will help avoid missed verification emails from fraud investigators. [link]

8/10/2023 - New Regulations Apply to Certain NJ-Based IT Consulting Companies
Many IT consulting companies based in New Jersey are subject to licensure with the NJ Division of Consumer Affairs as temporary help service agencies (or a similar licensure category such as employment agency or consulting firm). Companies that are required to register as temporary help service firms and fail to do so can face fines and the inability to bring lawsuits enforcing contracts. Effective August 5, 2023, new rules go into effect for temporary help service firms. Two notable changes relate to wages paid and post-employment restrictions. A temporary help service firm may not restrict the right of a temporary worker to accept a permanent position with a third-party client. The temporary help service firm may, however, charge a placement fee to the third party client for employing a temporary laborer. Also, covered temporary workers cannot be paid less than the average rate of pay of employees of the third-party client performing the same or substantially similar work. [link]

8/8/2023 - September Visa Bulletin Issued
The Department of State has issued the September 2023 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants should use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains retrogressed at January 1, 2009, while the filing cutoff for EB-2 India remains at January 1, 2011. There has been some speculation in the immigrant community that all Form I-140 beneficiaries will be eligible to file I-485 applications, irrespective of priority date, starting October 1, 2023. This change in policy has been requested in a letter to USCIS by certain members of Congress. Though this would be a most welcome change in policy, we believe that it is very unlikely to occur this October. This is because USCIS has shown that it does not have the capacity to handle the volume of filings that would result. True relief from burdensome visa backlogs will require an act of Congress. [link]

8/3/2023 - USCIS Updates Receipt Process for Form I-129S
Petitioners holding L-1 blanket certification generally bring over their L-1A and L-1B workers through consular processing. Indeed, that is the principal benefit of the blanket procedure. However, in some cases blanket-holding petitioners decide to pursue L-1 petitions through USCIS. USCIS is changing the way it issues receipts in such cases. When filing Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, together with Form I-129, Petition for a Nonimmigrant Worker, the petitioner will now receive two notices: the receipt notice and the approval notice (if approved). Petitioners will no longer receive a stamped and signed Form I-129S in conjunction with the Form I-129 approval. Instead, the petitioner will receive a separate approval notice for the Form I-129S, which serves as the endorsement. This approval notice will serve as evidence that a USCIS officer has determined the beneficiary is eligible for L-1 status based on an approved blanket L petition and constitutes an endorsement of Form I-129S as required by 8 CFR 214.2(l)(5)(ii)(E). A copy of that notice will also be provided to the beneficiary to be included with their visa and/or admission papers. [link]

7/31/2023 - USCIS Conducts Second H-1B Visa Lottery
USCIS has announced that it has conducted a second lottery under the FY 2024 H-1B cap. The initial lottery was conducted in March 2023. There was a significant increase in the number of registrations submitted for the FY 2024 H-1B cap compared to prior years. Despite that fact, fewer than expected lottery winners filed full petitions based on the initial lottery. Therefore, the agency has now selected additional registrations to reach the FY 2024 numerical allocations. USCIS selected 77,600 registrations in the second selection for the FY 2024 H-1B cap. These registrants will have until October 31, 2023 to file their full petitions. A third lottery may be conducted if fewer-than-expected petitions are filed among the 77,600 registrations selected in the second round. [link]

7/21/2023 - Revised Form I-9 Goes Into Effect
A revised version of Form I-9 goes into effect on August 1, 2023. The revised form includes a checkbox that employers enrolled in E-Verify can use to indicate they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security (DHS). This is a new option that was not available on the previous version of the form. The new checkbox on the revised form will allow employers to indicate that they used this alternative procedure, which may be helpful if they are ever audited by USCIS. The temporary COVID-19 flexibilities relating to remote checking of I-9 documents ends on July 31, 2023, so the new procedure is a welcome change. [link]

7/20/2023 - USCIS Reverting to 180 Day Period for Automatic Extensions of Certain EADs
Certain I-765 applicants whose EAD extensions are pending have been able to avail of a period of up to 180 days of additional work authorization during the pendency period. Due to the immense backlog in EAD applications, in May 2022 USCIS changed the upper limit of 180 days to 540 days in certain cases. This increase became available to eligible renewal applicants with pending Forms I-765 after May 4, 2022. The change was formalized through a Temporary Final Rule, which is set to expire after October 26, 2023. This means that after October 26, 2023, USCIS will revert to 180-day automatic extensions of EADs. It should be noted that not all EAD categories are eligible for automatic extensions. [link]

7/13/2023 - August Visa Bulletin Issued
The Department of State has issued the August 2023 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants should use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains retrogressed at January 1, 2009, while the filing cutoff for EB-2 India remains at January 1, 2011. Significant progression is unlikely for the rest of this fiscal year (ending Septeber 30, 2023), after which a new allocation of visa numbers will hopefully ease visa backlogs. [link]

7/7/2023 - Circuit Court Upholds USCIS Interpretation of Material Changes to H-1B Petitions
The U.S. Circuit Court for the District of Columbia has upheld DHS's policy of requiring amendments for H-1B petitions whenever an H-1B worker's employment location is outside of the commuting area of the location(s) specified on the worker's Labor Condition Application (LCA). ITServe had brought the lawsuit hoping to overturn the requirement on procedural grounds. Circuit court decisions have relatively high procedural value, meaning that future court challenges of the requirement will be difficult to bring. [link]

7/3/2023 - US Consulate in India Adopts New System
Effective July 15, 2023, the US Consulate in India is moving to a new system for U.S. visa services. The consulate encourages visa applicants to ensure that all the data entered in a profile is complete and correct. It also encourages applicants to pay the visa application fee before July 10, 2023, as payment services will be unavailable from July 11 to July 14 to enable the system change. Services will resume on July 15, 2023. Travel coordinators, group coordinators, or families who added dependent visa applicants to primary applicant profiles must ensure that each dependent/applicant has a unique email address. This may mean changing the email address listed for them. [link]

7/3/2023 - Canada Offering Open Work Permits for US H-1B Visa Holders
The Canadian government is creating a streamlined work permit for H-1B specialty occupation visa holders in the US to apply to come to Canada. As of July 16, 2023, H-1B specialty occupation visa holders in the US, and their accompanying immediate family members, will be eligible to apply to come to Canada. Approved applicants will receive an open work permit of up to three years in duration, which means they will be able to work for almost any employer anywhere in Canada. Their spouses and dependants will also be eligible to apply for a temporary resident visa, with a work or study permit, as needed. This measure will remain in effect for one year, or until 10,000 applications are received. Only principal applicants, and not their accompanying family members, will count toward the application cap. [link]

6/26/2023 - USCIS Expands Premium Processing for Students
USCIS has expanded premium processing for applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, and seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status. Beginning June 26, USCIS will accept Form I-907 requests, filed either via paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, when filed together with Form I-539. This phase of premium processing service is only available for change of status requests. Premium processing is not available for individuals seeking an extension of stay in M-1 or M-2 status. Even if USCIS accepts an applicant s Form I-907 and accompanying fees, the time limit for premium processing will not start running until the applicant and all co-applicants included on the Form I-539 submit their biometrics. F-1 OPT students can also avail of premium processing for Form I-765 filings. The premium processing timeframe for all of these applicants is 30 days. [link]

6/16/2023 - Everify Requirement for Florida Employers
Under a new law that goes into effect on July 1, 2023, all Flordia employers with 25 or more employees must use E-Verify when hiring new employees. E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. [link]

6/9/2023 - July Visa Bulletin Issued
The Department of State has issued the July 2023 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants should use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India has retrogressed significantly to January 1, 2009, while the filing cutoff for EB-2 India remains at January 1, 2011. Significant progression is unlikely for the rest of this fiscal year (ending Septeber 30, 2023), after which a new allocation of visa numbers will hopefully ease visa backlogs. [link]

5/17/2023 - COVID Vaccine No Longer Required for Entry to US
The Administration ended the COVID-19 vaccine requirements for international air travelers at the end of the day on May 11, the same day that the COVID-19 public health emergency ends. This means starting May 12, noncitizen nonimmigrant air passengers no longer need to show proof of being fully vaccinated with an accepted COVID-19 vaccine to board a flight to the United States. [link]

5/15/2023 - Statistics Revealed on Multiple Registrations under the H-1B Lottery
USCIS revealed statistics showing that H-1B sponsors filed a huge number of multiple registrations under the FY2024 H-1B lottery (filed in March 2023). There were 350,103 registrations submitted on behalf of unique beneficiaries with only one registration, whereas there were 408,891 registrations filed for beneficiaries with multiple cases. These multiple registrations were filed by around 96,000 individuals, who filed an average of four registrations through different companies. In FY2021, the first year of the new H-1B cap registration system, there were only 28,125 multiple registrations. USCIS will be issuing new regulations to amend the cap registration process in the near future. The government has indicated that it will be been issuing Notices of Intent to Revoke (NOIR) or to Deny (NOID) where H-1B sponsors collude to file multiple registrations. USCIS is doing extensive research to find common links between companies (such as family ties, shared office space, usage of similar templates, and usage of high-volume attorneys). Based on those links, it is issuing NOIDs and NOIRs over multiple registrations filed by affiliated companies for the same beneficiary. USCIS has indicated that it will be pursuing criminal action against some companies that have colluded to file a large number of duplicate registrations. The applicable rules are NOT meant to punish non-colluding H-1B sponsors. There is also no punishment under the law for H-1B candidates who solicit employment from multiple employers (provided that there was no fraud involved in that process). H-1B sponsors are free to file full petitions for beneficiaries who have registrations through other companies, provided that a) the sponsor has a bona fide need for the candidate, and b) the sponsor did not collude with other companies that filed registrations for the candidate. In fact, USCIS has previously indicated that it may scrutinize employers who do not file full petitions on behalf of cap-selected candidates. [link]

5/12/2023 - June Visa Bulletin Issued
The Department of State has issued the June 2023 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants should use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains at June 15, 2012, while the filing cutoff for EB-2 India remains at January 1, 2011. Significant progression is unlikely for the rest of this fiscal year (ending Septeber 30, 2023), after which a new allocation of visa numbers will hopefully ease visa backlogs. [link]

5/11/2023 - DOL Changes Online Portal for Submission of Labor Certification Applications
The Department of Labor has confirmed that effective June 1, 2023, new applications for permanent employment certification (Form ETA-9089) must be filed used the Foreign Labor Application Gateway (FLAG) website. As a result of the transition to FLAG, DOL will no longer accept any new applications submitted via the legacy PERM Online System after May 31, 2023, at 6:59 pm Eastern Standard Time. OFLC will no longer accept the previous version of Form ETA-9089 after May 31, 2023, either electronically or submitted by mail. [link]

5/3/2023 - New Student Visas Can Now be Issued One Year in Advance
The DOS has announced that student (F and M) visas for new students can be issued up to 365 days in advance of the start date for a course of study. However, F and M students will not be allowed to enter the United States on the student visa more than 30 days before the start date listed of Form I-20. [link]

4/19/2023 - USCIS Extends Suspension of Biometrics Requirement for E, H-4 and L-2 Categories
Since May 2021, U.S. Citizenship and Immigration Services has not required applicants seeking H-4, L-2, and E nonimmigrant status to undergo biometrics. USCIS has confirmed that this suspension will continue until September 30, 2023. The notice also mentions that the agency plans to issue a new rule waiving the biometrics requirement for all I-539 applications some time in the next few months. Based on past history, that new rule may not be issued before October 2023. [link]

4/14/2023 - May Visa Bulletin Issued
The Department of State has issued the May 2023 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants should use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains at June 15, 2012, while the filing cutoff for EB-2 India remains at January 1, 2011. Significant progression is unlikely for the rest of this fiscal year (ending Septeber 30, 2023), after which a new allocation of visa numbers will hopefully ease visa backlogs. [link]

4/4/2023 - USCIS Abandons 60 Day Rule for Form I-693 Medicals
USCIS no longer requires the civil surgeon s signature on Form I-693 medicals to be dated at most 60 days before an applicant files an application for adjustment of status. Now, the only applicable rule for validity of Form I-693 medicals is that they remain valid for 2 years after the date the civil surgeon signed the form. This policy change will hopefully lead to faster processing of newly-filed adjustment applications going forward. The change will be of little benefit to currently pending adjustment applicants, many of whom filed applications in late 2020 with medicals that have expired once and may expire once again before acquisition of permanent residence. [link]

3/27/2023 - USCIS Has Completed the H-1B Initial Electronic Registration Selection Process
USCIS has conducted its lottery for the fiscal year (FY) 2024 H-1B numerical allocations (H-1B cap) and the advanced degree exemption (master s cap). All petitioners have been notified via their my.uscis.gov accounts. Registrations were submitted by more than 48,000 prospective petitioners, and roughly 31% of all eligible registrations requested consideration under the advanced degree exemption. Selected applicants can file their full petitions within a 90 day window beginning in April. Unselected candidates may be selected in a second lottery, which may be run later this year depending on the number of filings from April to June. [link]

3/24/2023 - USCIS Announces End of COVID-19 Related Flexibilities
Certain flexibilities that USCIS first announced in March 2020, to address the COVID-19 pandemic, will end on March 23, 2023. USCIS notices, such as RFEs, NOIDs, NOIRs, and denials dated March 24, 2023 and after will have deadlines as stated on such notices. USCIS will add an extra 60-day grace period to the deadline for any RFE, NOID, or NOIR, if it was issued on or before March 23, 2023. The timeline to file Form I-290B appeals or motions is 90 days from the issuance of a denial, if the denial was issued on or before March 23, 2023. Also, as noted earlier, USCIS no longer requires original signatures on forms, and will instead continue to accept copies of ink-signatures on a permanent basis. [link]

3/22/2023 - April Visa Bulletin Issued
The Department of State has issued the April 2023 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants should use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India has been pushed back to June 15, 2012, while the filing cutoff for EB-2 India has retrogressed to January 1, 2011. Significant progression is unlikely for the rest of this fiscal year (ending Septeber 30, 2023), after which a new allocation of visa numbers will hopefully ease visa backlogs. [link]

3/17/2023 - USCIS Extends Filing Deadline for FY2024 H-1B Cap Registration
The payment function on the website for filing H-1B cap registrations (http://my.uscis.gov) crashed for several hours on 3/16/2023. USCIS fixed the technical issue and has extended the registration deadline until 5:00 pm ET Monday, March 20, 2023. Any paid & completed registrations were not affected by this technical issue. [link]

3/6/2023 - USCIS Expanding Premium Processing for OPT and STEM OPT Applicants
USCIS is expanding the availability of premium processing for I-765 applications filed by F-1 students requesting OPT or STEM OPT work authorization. Beginning March 6, USCIS will accept Form I-907 requests to upgrade pending applications for the these I-765 applications, while new applications filed on or after April 3 can include premium requests. The premium filing fee is $1500, and guarantees a response within 30 calendar days (or else the $1500 will be refunded). Affected F-1 student can also make their premium requests online. [link]

3/4/2023 - USCIS Updates Policy Guidance on the O-1B Visa Classification
USCIS has issued policy guidance to clarify how it evaluates evidence to determine eligibility for the O-1B visa classification for nonimmigrants of extraordinary ability in the arts and nonimmigrants of extraordinary achievement in the motion picture or television industry. The O visa regulations list certain evidentiary categories, such as publications or peer-review activities, that do not apply in non-scientific professions like the arts. The policy update expands the range of permissible evidence to include "comparable evidence" for each such category, whether or not that category is relevant to the profession in question. [link]

3/3/2023 - DOS to Allow Earlier Initial Stamping for F and M Students
DOS has announced that student (F and M) visa stamps for new students can be issued up to 365 days in advance of the start date for a course of study. The prior policy was to allow stamping up to 120 days in advance. However, students will not be allowed to enter the United States on a student visa more than 30 days before the start date listed on their initial Form I-20. The benefit of this change is to address the long backlogs for visa appointments at consulates, and to help ensure that students can start their degree programs on time. [link]

2/15/2023 - USCIS Revises Child Status Protection Act (CSPA) Age Calculation
Under the Child Status Protection Act (CSPA), one component in the formula for calculation of a dependent child's age is the date that the priority date associated with the child's I-485 application became current. When USCIS bifurcated the Visa Bulletin system to include two categories (Final Action Dates and Dates for Filing), it decided that the Final Action Date would be operative for CSPA purposes. That interpretation was troublesome for many dependents, whose Form I-485 applications (and fees) were accepted due to a current date under the Dates for Final Action, only to be denied later due to backlogs in the Final Action Date category. In a welcome change, USCIS will now consider whichever visa bulletin category is operative in a particular month (Final Action Dates or Dates for Filing) for CSPA purposes. This brings back the CSPA closer to the system that existed before the Visa Bulletin was bifurcated [link]

2/14/2023 - March Visa Bulletin Issued
The Department of State has issued the March 2023 Visa Bulletin. USCIS has confirmed that all employment-based and family-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains at August 1, 2012, and the filing cutoff for EB-2 India remains at May 1, 2012. This month's visa bulletin is virtually unchanged from the prior two months. The DOS notes in the latest visa bulletin that continued retrogression is likely due to "unexpected" demand in recent months. [link]

2/9/2023 - DOS Plans to Restart State-Side Visa Renewals
Until 2004, the Department of State allowed nonimmigrants living in the US to apply for renewals of their visa stamps by mail, without needing to appear at a consulate abroad. That practice was abandoned over national security concerns. A DOS official has confirmed that the agency now plans to phase in state-side visa renewals per the old system. This change, once fully implemented, will be very helpful to nonimmigrants who have faced extensive backlogs in securing visa stamping appointments abroad. Many consulates are still backlogged due to shutdowns during the COVID pandemic. [link]

1/27/2023 - USCIS Announces FY2024 H-1B Cap Initial Registration Period
USCIS announced that the initial registration period for FY2024 H-1B cap will open at 12:00 pm (ET) on March 1 and run through 12:00 pm (ET) on March 17, 2023. During this period, prospective petitioners and representatives will be able to submit registrations using the online H-1B registration system. As in prior years, the filing fee will be $10 per registration and employers and their affiliates are prohibited from filing multiple filings for a single beneficiary. [link]

1/24/2023 - USCIS Extends COVID-19 Related Flexibilities
In a continuation of flexibilities that were implemented in response to the COVID-19 pandemic, USCIS will add an extra 60-day grace period to the deadline for any RFE, NOID, or NOIR, if it was issued between March 1, 2020, and March 23, 2023. The timeline to file Form I-290B appeals or motions is 90 days from the issuance of a denial, if the denial was issued between Nov. 1, 2021, and March 23, 2023. Also, as noted earlier, USCIS no longer requires original signatures on forms, and will instead continue to accept copies of ink-signatures on a permanent basis. [link]

1/23/2023 - USCIS to Begin Bundling Adjudication of I-129, I-539, and I-765 for H-4 and L-2 Dependents
As part of a settlement reached in a recent class action litigation, which challenged H-4 and L-2 adjudication delays, USCIS has agreed to resume bundling the adjudication of I-539 and I-765 for H-4 and L-2 dependents when filed concurrently with Form I-129. Such bundling will only apply if the forms are filed concurrently, and will apply both to cases filed under regular and premium processing. The settlement expires in January 2025. [link]

1/17/2023 - February Visa Bulletin Issued
The Department of State has issued the February 2023 Visa Bulletin. USCIS has confirmed that all employment-based and family-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains at August 1, 2012, and the filing cutoff for EB-2 India remains at May 1, 2012.. [link]

1/12/2023 - USCIS Expands Premium Processing Eligibility for Certain Form I-140 Categories
Beginning Jan. 30, 2023, USCIS will accept requests for premium processing for all E13 multinational executive and manager petitions and E21 NIW petitions, in addition to other categories that are already premium-eligible. USCIS also announced that it expects to expand premium eligibility to EAD applications by F-1 students and I-539 applicants in the coming months. [link]

12/19/2022 - January Visa Bulletin Issued
The Department of State has issued the January 2023 Visa Bulletin. USCIS has confirmed that all employment-based and family-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for adjustment of status filings under EB-3 India remains at August 1, 2012, and the filing cutoff for EB-2 India remains at May 1, 2012.. [link]

12/16/2022 - New USCIS Public Charge Rule In Effect
USCIS's new rule on the public charge ground of inadmissibility goes into effect on Friday, December 23, 2022. Under the new rule, USCIS will return to the public charge inadmissibility standard described in its 1999 Interim Field Guidance. In other words, USCIS will not consider an applicant s receipt of Medicaid (except for long-term institutionalization at the government s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination. This new rule replaces the overly harsh rule that the Trump administration had issued in August 2019. [link]

12/9/2022 - USCIS Automatically Extending Green Cards for N-400 Applicants
N-400 processing delays have been troublesome for Permanent Residents (Green Card holders) whose physical green cards are expiring or have expired. In light of this issue, effective Dec. 12, 2022, USCIS will automatically extend the validity of Permanent Resident Cards by 24 months for lawful permanent residents who have applied for naturalization, irrespective of whether Form I-90 has been filed. In cases where the green card has expired, the N-400 receipt notice can be presented with the expired Green Card as evidence of continued status during the 24 month period. [link]

11/11/2022 - TPS Extended Until 2024 for Several Countries
USCIS will be issuing an automatic extension of the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through June 30, 2024, from the current expiration date of December 31, 2022. [link]

11/1/2022 - ACICS Loses Accreditation Status
Many of the universities used by foreign nationals to procure "Day One CPT" and convenient admission have been accredited by the Accrediting Council for Independent Colleges and Schools (ACICS). Effective Aug. 19, 2022, the US Department of Education no longer recongizes ACICS accredidation. The loss of recognition means that colleges and universities solely accredited by ACICS are no longer accredited institutions, and any degrees conferred by those colleges and universities on or after Aug. 19, 2022, will no longer qualify as a U.S. degree in terms of qualifying for the H-1B advanced degree exemption (also known as the master s cap) or for I-140 purposes. However, a degree conferred by those colleges and universities before Aug. 19, 2022, while the college or university was accredited, is considered to be a degree from an accredited institution, and can be used to qualify for the H-1B master s cap and for I-140 petitions filed under the EB-2 advanced degree and EB-3 professional classifications (as long as all other requirements are met). Also, STEM OPT extensions can only be granted if the university was accredited on the day that the DSO recommended STEM OPT on the student's Form I-20. [link]

10/26/2022 - USCIS Answers FAQs on Employment-Based Adjustment of Status Processing
USCIS has provided answers to numerous FAQs relating to its handling of employment-based I-485 filings. The FAQs detail how the government calculates the number of immigrant visas available under its statutory authority, and explains the spillover process for unused visas (from family-based to employment-based and between employment-based categories). It also explains when per country caps (which severely impact Indian and Chinese nationals) are temporarily lifted within a particular employment-based category. While the FAQs do not contain forecasts, they do suggest that EB-1 (India) will remain current for the near future due to spillover effects, and that it takes several months for the EB-3 category to benefit from spillover from other case types. The FAQs also remind the public that the age-reduction function of the Child Status Protection Act (CSPA) is I-140-dependent, meaning that interfiling (aka "transfer of underlying basis") a Form I-485 must be done with CSPA considerations in mind. Also, the FAQs relay the DOS estimate that the FY 2023 employment-based annual limit will be approximately 197,000, due to approximately 57,000 unused family-sponsored visa numbers from FY 2022 being added to the employment-based limit for FY 2023. USCIS also claims that it will reduce processing times for employment authorization and advance parole applications, which are facing historic backlogs. The FAQs are extensive and cover a number of other topics as well. [link]

10/24/2022 - USCIS Extends COVID-19 Related Flexibilities
In a continuation of flexibilities that were implemented in response to the COVID-19 pandemic, USCIS will add an extra 60-day grace period to the deadline for any RFE, NOID, or NOIR, if it was issued between March 1, 2020, and Jan. 24, 2023. The timeline to file Form I-290B appeals or motions is 90 days from the issuance of a denial, if the denial was issued between Nov. 1, 2021, and Jan. 24, 2023. Also, as noted earlier, USCIS no longer requires original signatures on forms, and will instead continue to accept copies of ink-signatures on a permanent basis. [link]

10/21/2022 - TPS Announced for Ethiopia
Temporary Protected Status (TPS) has been extended to Ethiopian nationals who have been in the United States since October 20, 2022. Ethiopia s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). [link]

10/7/2022 - November Visa Bulletin Issued
The Department of State has issued the November Visa Bulletin. There is no change in the Final Action date for EB-3 (India) or EB-2 (India). Both remain static at April 1, 2012. The cutoffs for most other categories are generally the same as in October 2022. The lack of movement is somewhat unexpected since USCIS/DOS have been allocated a new batch of almost 200,000 visa numbers since the new fiscal year began on October 1. It is clear that USCIS is still trying to take stock of and finalize the many petitions filed in October and November 2020, when priority dates jumped significantly to account for extra visas available due to COVID-related consular delays. It may take several months for there to be significant progression in visa dates. [link]

10/3/2022 - USCIS Extending Expired Green Card Validity from One Year to Two Years for I-90 Filers
As of September 26, USCIS has further extended the validity of Permanent Resident Cards (PRC) from 12 months to 24 months for lawful permanent residents who have filed Form I-90, Application to Replace Permanent Resident Card, to renew their PRC. Individuals newly filing Form I-90 will receive a Form I-797 receipt notice with the 24-month automatic extension. Individuals who have a pending application will receive an amended receipt notice with the 24-month automatic extension before the initial 12-month extension period expires. The new notices will be helpful for green card holders whose applications for renewed green cards have faced long delays in USCIS processing. [link]

9/31/2022 - USCIS Extending Waiver of 60 Day Rule for Medicals
Applicants for adjustment of status must file Form I-693, Report of Medical Examination and Vaccination Record before the Form I-485 can be approved. Normally, the USCIS civil surgeon (doctor) must sign the Form I-693 no more than 60 days before the Form I-485 is filed. Given long backlogs in processing, USCIS has waived this requirement since December 9, 2021, and has now announced that it will extend this waiver until March 31, 2023. As before, a signed Form I-693 is only valid for 2 years from the date of the civil surgeon s signature. [link]

9/22/2022 - USCIS Finalizes New Public Charge Rule
USCIS has finalized a new rule to implement the public charge ground of inadmissibility. Under the new rule, USCIS will return to the public charge inadmissibility standard described in its 1999 Interim Field Guidance. In other words, USCIS will not consider an applicant s receipt of Medicaid (except for long-term institutionalization at the government s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination. This new rule replaces the overly harsh rule that the Trump administration has issued in August 2019. [link]

9/16/2022 - USCIS Expanding Premium Process Availability
Beginning September 15, 2022, USCIS will begin accepting Form I-907 (premium processing) requests for these additional I-140 petition types: E13 multinational executive and manager petitions received on or before Jan. 1, 2022 and E21 NIW petitions received on or before Feb. 1, 2022. Premium upgrades filed in these categories will take up to 45 days, and premium processing is not available for new (initial) Forms I-140 petitions filed in these case types (E13 and E21). [link]

9/8/2022 - Visa Unavailability for EB-2 and EB-3 India in September 2022
In a court declaration submitted as part of a lawsuit challenging DHS's visa allocation system, a senior DHS official has affirmed several key pieces of information regarding the current state of the Visa Bulletin. This fiscal year (ending September 30, 2022), USCIS has had an unprecedented number of visa numbers available in the employment-based category (281,507) due to spillover from unused family-based numbers (resulting from COVID-related consular delays). A similar spillover occurred last fiscal year, and a significant number of available visa numbers were wasted. However, this year USCIS has used up all available EB numbers. This means that for the rest of this month, USCIS will not approve any more I-485 applications for EB-3 India and EB-2 India applicants even if the applicant's priority date is listed as current in the September Visa Bulletin's Final Action Date table. A new visa allocation (of 140,000 plus any spillover from the FB category) becomes available on October 1, 2022. However, the October 2022 Visa Bulletin shows significant retrogression, with the Final Action Date for both EB-2 India and EB-3 India at April 1, 2012. USCIS expects EB-2 and EB-3 India to stay retrogressed for the next couple of months, with most other categories staying current. Our feeling is that USCIS will take a couple of months to take stock of duplicate EB-2 and EB-3 I-485 filings by India-born I-485 applicants in the last two years, and reassess visa demand after that calculation is completed. Priority dates should hopefully progress thereafter. [link]

9/7/2022 - TPS Re-Registration Period Announced for Venezuela
DHS has issued a notice extending the designation of Venezuela for TPS for 18 months, from September 10, 2022, through March 10, 2024. The 60-day re-registration period for existing TPS recipients starts on September 8, 2022. Venezuela TPS holders whose EADs expire on September 9, 2022 are eligible for automatic one-year extensions until September 9, 2023. DHS is also relaxing certain work restrictions for F-1 students due to the humanitarian crisis in Venezuela. [link]

8/26/2022 - USCIS Finalizes Regulation for Deferred Action for Childhood Arrivals (DACA) Program
USCIS has published a final rule codifying the Deferred Action for Childhood Arrivals (DACA) program. The final rule implements a prior proposed rule 9/28/21 with some amendments. The rule is scheduled to take effect on October 31, but legal challenges are expected. A current court order already prohibits USCIS from granting new DACA requests. Immigration advocates are pushing for Congress to pass legislation that protects potential DACA recipients. [link]

8/23/2022 - H-1B Cap Reached for Fiscal Year 2023
USCIS has confirmed that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 master s cap for fiscal year (FY) 2023. Email notifications regarding non-selection have been sent to cap registrants online accounts. Cap-Exempt H-1B petitions can still be filed, as usual. [link]

8/8/2022 - September Visa Bulletin Issued
The Department of State has issued the September 2022 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. The effective cut-off for adjustment of status filings under EB-3 India remains at January 15, 2012, and the filing cutoff for EB-2 India remains at December 1, 2014. The Dates for Filing chart should be used for all family-sponsored I-485 applications. On October 1, 2022 the federal government's new fiscal year will begin, meaning that a new allocation of visa numbers will become available. In the coming fiscal year, our office expects that EB-3 numbers will progress while EB-2 remains relatively stable. Also, some spillover is expected from unused family-based visa numbers from the prior fiscal year, given ongoing closures and slowdowns at overseas consulates. However, that spillover effect will not be at the same level as in 2020. [link]

7/25/2022 - USCIS No Longer Requires Original Signatures for Form Filings
USCIS is making permanent a policy that it has been implementing since the outbreak of COVID-19: the agency will no longer require original signatures on forms, and will instead continue to accept copies of ink-signatures on a permanent basis. [link]

7/25/2022 - USCIS Extends COVID-19 Related Flexibilities
In a continuation of flexibilities that were implemented in response to the COVID-19 pandemic, USCIS will add an extra 60-day grace period to the deadline for any RFE, NOID, or NOIR, if it was issued between March 1, 2020, and Oct. 23, 2022. The timeline to file Form I-290B appeals or motions is 90 days from the issuance of a denial, if the denial was issued between Nov. 1, 2021, and Oct. 23, 2022. Also, going forward USCIS will no longer require original signatures on forms, and will instead continue to accept copies of ink-signatures on a permanent basis. [link]

7/18/2022 - USCIS Provides Updates on the I-485 Process
USCIS has released FAQs explaining how it is handling the large number of I-485 applications that are currently pending. The FAQs describe (in somewhat self-congratulatory fashion) the agency's effort to utilize all available visa numbers this year. They also summarize prior guidance, with the following highlights:

  • Applicants should not send unsolicited Forms I-693
  • USCIS cannot perform interfiling on its own, and will only do so in response to a written request
  • The Case Status Online page on uscis.gov will not reflect interfiling requests
  • Interfiling requests impact the calculation of the Child Status Protection Act (CSPA), where applicable
  • An interfiling can be done to transfer an adjustment application (I-485) from a pending immigrant petition (I-140) to an approved one (or between approved petitions).
Though USCIS has been processing I-485 applications at a record rate, a large number of visa numbers will once again be wasted this year. [link]

7/15/2022 - USCIS Expanding Premium Process Availability
Beginning August 1, 2022, the agency will accept premium processing requests for pending Form I-140 petitions under an E13 multinational executive and manager classification if received on or before July 1, 2021, and under an E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver if received on or before August 1, 2021. [link]

7/11/2022 - August Visa Bulletin Issued
The Department of State has issued the August 2022 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. The effective cut-off for adjustment of status filings under EB-3 India remains at January 15, 2012, and the filing cutoff for EB-2 India remains at December 1, 2014. The Dates for Filing chart should be used for all family-sponsored I-485 applications. [link]

6/12/2022 - CDC Eliminates COVID-19 Test Requirement for Arrivals to the US
As of June 12, 2022, all air passengers, regardless of citizenship or vaccination status, are no longer required to show a negative viral COVID-19 test result, or documentation of recovery from COVID-19, before boarding a flight to the United States. The CDC cautions that it may reinstate the testing requirement depending on the evolving state of the pandemic. [link]

6/10/2022 - July Visa Bulletin Issued
The Department of State has issued the July 2022 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. The effective cut-off for adjustment of status filings under EB-3 India remains at January 15, 2012, while the filing cutoff for EB-2 India has changed to December 1, 2014. The Dates for Filing chart should be used for all family-sponsored I-485 applications. USCIS has indicated that a large number of EB-1 and EB-2 visas are available this fiscal year. The agency encourages interfiling submissions from applicants who currently have 1) a current priority date under the Final Action Date chart, 2) a pending EB-3 I-485 application and 3) an approved EB-1 or EB-2 immigrant petition (I-140). [link]

5/24/2022 - USCIS Phasing In Additional Case Types for Premium Processing
USCIS is expanding eligibility for premium processing. Beginning June 1, 2022, the agency will accept Form I-907 requests for E13 multinational executive and manager petitions received on or before Jan. 1, 2021. Beginning July 1, 2022, USCIS will accept Form I-907 requests for E21 NIW petitions received on or before June 1, 2021, and E13 multinational executive and manager petitions received on or before March 1, 2021. In the coming months and years, premium processing availability will be expanded to certain Form I-140, Form I-539 and Form I-765 filings. [link]

5/13/2022 - USCIS Increases Work Authorization Period to 540 Days for Certain EAD Extensions
Certain I-765 applicants whose EAD extensions are pending have been able to avail of a period of up to 180 days of additional work authorization during the pendency period. For a limited time, USCIS is now changing the upper limit of 180 days to 540 days in certain cases. This increase will be available to eligible renewal applicants with pending Forms I-765 as of May 4, 2022, including those applicants whose employment authorization may have lapsed following the initial 180-day extension period, and any eligible applicant who files a renewal Form I-765 during the 540-day period beginning on or after May 4, 2022, and ending October 26, 2023. Only certain categories of individuals can work while an EAD extension is pending, and additional conditions apply to specific categories such as the "C26" H-4 EAD program. [link]

5/13/2022 - June Visa Bulletin Issued
The Department of State has issued the June 2022 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. The effective cut-off for adjustment of status filings under EB-3 India is now at January 15, 2012, while the filing cutoff for EB-2 India has changed to September 1, 2014. The Dates for Filing chart should be used for all family-sponsored I-485 applications. USCIS has indicated that a large number of EB-1 and EB-2 visas are available this fiscal year. The agency encourages interfiling submissions from applicants who currently have 1) a current priority date under the Final Action Date chart, 2) a pending EB-3 I-485 application and 3) an approved EB-1 or EB-2 immigrant petition (I-140). [link]

4/18/2022 - ICE Extends COVID-Related Guidance for the 2022-23 Academic Year
The Student and Exchange Visitor Program (SEVP) will extend the guidance originally issued in March 2020 for the 2022-23 academic year. This guidance enables schools and students to engage in distance learning in excess of regulatory limits due to the continuing public health concerns created by COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and are otherwise complying with the terms of their nonimmigrant status, whether from inside the United States or abroad. There are no changes to the original guidance, which will remain in effect during the 2022-23 academic year. [link]

4/14/2022 - May Visa Bulletin Issued
The Department of State has issued the May 2022 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for EB-3 India remains at January 22, 2012, while the filing cutoff for EB-2 India has jumped to December 1, 2014. Further, the Final Action Date for EB-2 India has progressed slightly to September 1, 2013. The Dates for Filing chart should be used for all family-sponsored I-485 applications. USCIS has indicated that a large number of EB-1 and EB-2 visas are available this fiscal year. The agency encourages interfiling submissions from applicants who currently have 1) a current priority date under the Final Action Date chart, 2) a pending EB-3 I-485 application and 3) an approved EB-1 or EB-2 immigrant petition (I-140). [link]

4/7/2022 - USCIS Will Waive Interviews in Certain Marriage-Based Green Card Cases
A noncitizen who obtains permanent resident status based on a marriage that began less than two years before obtaining that status receives permanent resident status on a conditional basis for two years. To remove the conditions on permanent resident status, family-based Conditional Permanent Residents (CPRs) generally must file a Form I-751 within the 90-day period before the two-year anniversary of when they obtained CPR status. USCIS has announced a policy update to adopt a risk-based approach when waiving interviews for conditional permanent residents. Previously, in-person interviews were rarely waived for CPR applicants. [link]

3/30/2022 - USCIS Extends COVID-19 Related Flexibilities
In a continuation of flexibilities that were implemented in response to the COVID-19 pandemic, USCIS will add an extra 60-day grace period to the deadline for any RFE, NOID, or NOIR, if it was issued between March 1, 2020 and July 25, 2022. The timeline to file Form I-290B appeals or motions is 90 days from the issuance of a denial, if the denial was issued between November 1, 2021 and July 25, 2022. [link]

3/29/2022 - USCIS Has Completed the H-1B Initial Electronic Registration Selection Process
USCIS has conducted its lottery for the fiscal year (FY) 2023 H-1B numerical allocations (H-1B cap) and the advanced degree exemption (master s cap). All petitioners have been notified via their my.uscis.gov accounts. Selected applicants can file their full petitions within a 90 day window beginning in April. Unselected candidates may be selected in a second (or possibly third) lottery, which may be run later this year depending on the number of filings from April to June. [link]

3/18/2022 - USCIS Encourages Filings to Avail of EB-2 Immigrant Visa Numbers
USCIS has issued an advisory encouraging Indian-born "EB-3 downgrade" applicants (i.e., those with an approved EB-2 I-140 and a pending I-485 under the EB-3 category) to file an interfiling if their EB-2 priority date is before July 8, 2013. Interfiling in this case involves converting a pending I-485 from EB-3 to the EB-2 category. The advisory also recommends that those with a priority date between July 8, 2013 and September 1, 2014 should file a new I-485 based on the EB-2 I-140. USCIS has indicated that it has a large number of EB-2 visa numbers available this fiscal year (ending September 30, 2022) due to a COVID-related visa surplus. USCIS is encouraging the above-mentioned filings from qualified candidates to take advantage of these visa numbers. It should be noted that USCIS is experiencing heavy and unpredictable work backlogs, and some cases may remain pending for months even after the new fiscal year begins. [link]

3/17/2022 - April Visa Bulletin Issued
The Department of State has issued the April 2022 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for EB-3 India remains at January 22, 2012, while the filing cutoff for EB-2 India has jumped significantly to September 1, 2014. Further, the Final Action Date for EB-2 India has progressed slightly to July 8, 2013. The Dates for Filing chart should be used for all family-sponsored I-485 applications. USCIS has indicated that a large number of EB-1 and EB-2 visas are available this fiscal year. The agency encourages interfiling submissions from applicants who currently have 1) a current priority date under the Final Action Date chart, 2) a pending EB-3 I-485 application and 3) an approved EB-1 or EB-2 immigrant petition (I-140). [link]

3/8/2022 - TPS Announced for Ukraine
In response to Russia's attack on Ukraine, the DHS has announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months. Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS. This provision makes the TPS designation of little use to most of the millions of refugees who have escaped the country after March 1, 2022. [link]

3/1/2022 - USCIS Issues Proposed Public Charge Rule
USCIS previously rescinded the overly harsh rule that the Trump administration had crafted to implement the public charge ground of inadmissibility. Now, the agency has published a notice of proposed rulemaking to take the rescinded rule's place. DHS proposes to define likely at any time to become a public charge as likely to become primarily dependent on the government for subsistence. This is a more relaxed standard that follows the statutory public charge requirement without overburdening applicants. [link]

2/28/2022 - H-1B Cap Registration Period Open from March 1, 2022 to March 18, 2022
The fiscal year 2023 H-1B cap will open at noon Eastern on March 1 and run through noon Eastern on March 18, 2022. Contrary to rumours, USCIS will not be conducting a 4th lottery for registrations filed in March 2021. Any registration beneficiary who was not picked in last year's lottery should consider filing in this year's H-1B registration lottery. The H-1B registration regulation requires petitioners to affirm that they are filing for a "bona fide job opportunity." This means that an employer should file a registration only if it has work available for the beneficiary. This also means that related companies cannot file for the same individual if the filings relate to the same job opportunity. This year's registration includes a new attestation on this subject:

I further certify that this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this registration (or these registrations) is being submitted, have not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

The new attestation suggests that USCIS will be closely looking at whether multiple registrations for one individual have been filed by related companies to unfairly increase the odds of selection. In theory, two related companies could file for the same beneficiary if each has a separate, bona fide job offer for the beneficiary. However, given the new attestation, the more prudent approach to avoid USCIS scrutiny is for related companies to avoid filing for the same person (irrespective of whether each company has a separate, bona fide job offer available). There is no prohibition on unrelated companies filings registrations for the same person (provided that each has a bona fide job offer). [link]

2/16/2022 - March Visa Bulletin Issued
The Department of State has issued the March 2022 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for EB-3 India is January 22, 2012 and the filing cutoff for EB-2 India is September 1, 2013. Further, the Final Action Date for EB-2 India has progressed significantly to May 1, 2013. The Dates for Filing chart should be used for all family-sponsored I-485 applications, except that F2A applicants may file adjustment of status applications using the Final Action Dates chart. USCIS has indicated that a large number of EB-1 and EB-2 visas are available this fiscal year. The agency encourages interfiling submissions from applicants who currently have 1) a current priority date under the Final Action Date chart, 2) a pending EB-3 I-485 application and 3) an approved EB-1 or EB-2 immigrant petition (I-140). [link]

1/28/2022 - Filing Dates Announced for FY2023 H-1B Cap Registration Period
USCIS announced that the initial registration period for the fiscal year (FY) 2023 H-1B cap will open at noon Eastern on March 1 and run through noon Eastern on March 18. During this period, prospective petitioners will be able to fill out petitioner and beneficiary information and submit their registrations. This year's registration process will be run almost exactly the same as last year, with a $10 registration fee per applicant. Lottery winners will be announced by March 31, 2021. [link]

1/26/2022 - USCIS Updates Guidance on Interfiling Requests
In new guidance, USCIS is encouraging I-485 applicants with multiple employment-based petitions to consider "inter-filing" the pending I-485 with an approved petition in the EB-1 or EB-2 categories, if applicable. This is because there is an exceptionally high number of employment-based visas available this fiscal year (October 2021 through September 2022) in the first (priority workers) and second (workers with advanced degrees or of exceptional ability) employment-based categories. A special mailbox has been established to accept interfilings, and unlike before, interfilings now require the submission of a new Form I-485, Supplement J signed by the prospective employer and employee. [link]

1/21/2022 - USCIS Clarifies O-1 Criteria for STEM-Related Petitions
In order to qualify for the O-1A visa, applicants must show that they meet at least three of eight enumerated criteria. Although the O-1A is for individuals of extraordinary ability in the sciences, education, business, or athletics, the language of the regulatory criteria favors scientists. As part of the Biden administration's push to approve more petitions in science, technology, engineering, or math (STEM) fields, USCIS has revised its policy manual to emphasize that if a petitioner demonstrates that a particular criterion does not readily apply to their occupation, it may submit evidence that is of comparable significance to that criterion. This policy change could be particularly useful for O-1 applicants outside of university or research settings. [link]

1/14/2022 - February Visa Bulletin Issued
The Department of State has issued the February 2022 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for EB-3 India remains at January 22, 2012 and the filing cutoff for EB-2 India has progressed to September 1, 2013. Also, the Final Action Date for EB-2 India has progressed significantly to January 1, 2013. The Dates for Filing chart should be used for all family-sponsored applications, except that F2A applicants may file adjustment of status applications using the Final Action Dates chart. It is difficult to forecast visa cutoffs for the coming months because of a range of factors, including ongoing slowdowns at consulates and at USCIS due to the pandemic, concerns about new shutdowns due to the omicron variant, pre-existing demand from pending I-485 applications, and a recent increase in EB-2 I-485 filings. [link]

12/28/2021 - DOS Waives Interview Requirement for Certain Nonimmigrant Visas
Through December 31, 2022, the DOS is granting consular officers authority to waive the interview requirement for H-1, H-3, H-4, L, O, P, and Q visa applicants who a) are applying for a visa in their country of nationality or residence, b) were previously issued any visa, c) who have never been refused a visa unless such refusal was overcome or waived, and d) have no apparent ineligibility or potential ineligibility (e.g., serious criminal history, etc.). Also, first-time H-1, H-3, H-4, L, O, P, and Q visa applicant who previously traveled to the US via the ESTA system may also qualify for interview waiver. A similar interview-waiver policy is being implemented for repeat and first-time F, M, and academic J visa applicants. Applicants renewing any visa within 48 months of expiration are also eligible for interview waiver. Each consulate will be posting information on its website on how this new authority will be implemented. [link]

12/22/2021 - USCIS Withdraws H1B Selection Final Rule
USCIS is withdrawing a Trump-era final rule ("H1B Selection Final Rule") published at 86 FR 1676 (1/8/21), which was to become effective on 12/31/21 and which would have created a wage-based selection process for H-1B registrations. The rule would have given preference to the highest wage-earners in the H-1B lottery, favoring highly skilled foreign workers and disfavoring college graduates seeking entry-level jobs. USCIS's withdrawal of the H-1B Selection Final Rule is in response to a court-order from the U.S. District Court for the Northern District of California, which had vacated the rule because the DHS Secretary at the time, Chad Wolf, had been improperly appointed by the Trump Administration. USCIS may re-propose a similar rule in the future, as the Biden Administration had listed a preference for high wages in the H-1B lottery among its immigration-related campaign promises. [link]

12/16/2021 - January Visa Bulletin Issued
The Department of State has issued the January 2022 Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for EB-3 India remains at January 22, 2012 and the cutoff for EB-2 India also remains static at July 8, 2013. The Dates for Filing chart should be used for all family-sponsored applications, except that F2A applicants may file adjustment of status applications using the Final Action Dates chart. It is difficult to forecast visa cutoffs for the coming months because of a range of factors, including ongoing slowdowns at consulates and at USCIS due to the pandemic, concerns about new shutdowns due to the omicron variant, pre-existing demand from pending I-485 applications, and a recent increase in EB-2 I-485 filings. [link]

12/9/2021 - USCIS Temporarily Waiving 60-Day Rule for Civil Surgeon Signatures
Any Form I-485, Application to Register Permanent Residence or Adjust Status can only be approved if a medical report (Form I-693, Report of Medical Examination and Vaccination Record) has been timely filed. U.S. Citizenship and Immigration Services is temporarily waiving the requirement that the civil surgeon sign Form I-693 no more than 60 days before an applicant files the I-485 application. This waiver is in effect until September 30, 2022. This policy change benefits a relatively small population: new I-485 applicants who are already in possession of expired medicals. [link]

12/3/2021 - President Biden Announces New Testing Requirement for Inbound Travel to the USA
To limit the spread of the Omicron variant of COVID-19, starting December 6, 2021, anyone aged 2 years or older who arrives from overseas to a United States airport must submit a negative COVID test taken within 1 calendar day of travel. So, for example, if the date of departure from the foreign country is December 24, 2021, the test must be taken no earlier than December 23, 2021. Both PCR and Antigen tests are accepted. Passengers can use proof of recovery from COVID within 90 days to replace the COVID test. This testing requirement is in addition to the ongoing requirement that noncitizen nonimmigrant air passengers traveling to the United States (regardless of antibody status) provide proof of COVID-19 vaccination. The accepted vaccines are Janssen/J&J, Pfizer-BioNTech, Moderna, AstraZeneca, Covaxin, Covishield, BIBP/Sinopharm and Sinovac. [link]

11/22/2021 - USCIS Conducts Third Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations
USCIS has conducted a third lottery to select additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations (including the advanced degree exemption). On November 19, USCIS selected from among previously submitted electronic registrations using a random selection process. Selected registrants under this process can file their full petitions between November 22, 2021 and February 23, 2022. [link]

11/17/2021 - December Visa Bulletin Issued
The Department of State has issued the December Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for EB-3 India remains at January 22, 2012 and the cutoff for EB-2 India has progressed to July 8, 2013. In the last couple of months, DOS has been unable to accurately forecast visa demand, especially at the USCIS level. Complicating matters is that the government official responsible for calculating the visa bulletin, Charlie Oppenheim, is retiring at the end of the year. Based on current estimates, no significant priority date advancement is expected after the January Visa Bulletin is issued until the end of the fiscal year in September 30, 2022. This outlook could change if the visa recapture provisions currently being considered by Congress are passed. [link]

11/12/2021 - USCIS Settlement Regarding Work Authorization for H, L and E Dependent Spouses
As part of a settlement to a nationwide class action lawsuit, Shergill, et al. v. Mayorkas, USCIS has issued a memo revising guidance on employment authorization for certain nonimmigrant dependent spouses. Under the guidance, L-2 and E spouses will soon be able to work without a separate EAD. The policy change affecting H-4 spouses is less useful: H-4 spouses who apply for an EAD extension can work until the earliest of: 1) the end of their status as indicated on Form I-94, or 2) the approval or denial of their EAD application, or 3) 180 days from the date of the expiration of the previous EAD. These policy changes will go into effect within 120 days, when USCIS issues revised I-94s indicating whether an H-4, L-2 or E dependent is a spouse. The policy change benefits spouses only and not other dependents. [link]

11/8/2021 - USCIS Settlement on H-1B Denials for Market Research Analyst Positions
USCIS has settled a nationwide class action lawsuit, MadKudu Inc., et al. v. U.S. Citizenship and Immigration Services, et al., No. 20-cv-2653 (N.D. Cal.), which challenged USCIS's practice of denying H-1B nonimmigrant employment-based petitions for market research analyst positions filed by United States businesses. Under the settlement, anyone whose H-1B petition for a market research analyst was filed between Jan. 1, 2019 and Oct. 19, 2021 should consider joining the class action to have the denial reversed. Petitions may not be reopened if there was another basis for denial or if the requested validity period has expired. All motions filed under this basis must be received by April 26, 2022. [link]

10/26/2021 - Biden Rescinds COVID-19 Travel Bans Effective November 8
As expected, the White House will rescind existing COVID-19 related travel bans effective November 8, 2021. Starting on that date, non-citizen, non-immigrant air travelers to the United States will be required to be fully vaccinated and to provide proof of COVID-19 vaccination status prior to boarding an airplane to fly to the U.S., with only limited exceptions. The updated travel guidelines also include new protocols around testing. Unvaccinated travelers whether U.S. Citizens, lawful permanent residents (LPRs), or the small number of excepted unvaccinated foreign nationals will now need to test within one day of departure. Nonimmigrants who are under 18, have a medical contraindication to vaccines or need emergency or humanitarian access to the United States may be exempted from the vaccination requirement. [link]

10/14/2021 - November Visa Bulletin Issued
The Department of State has issued the November Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for EB-3 India has retrogressed to January 22, 2012 and the cutoff for EB-2 India has slightly progressed to January 8, 2013. The retrogression in the EB-3 India dates comes as a shock. In the last fews weeks the DOS has forecasted that, while EB-3 would not progress significantly until the start of the next fiscal year (October 2022), there would also be no retrogression before then. The only explanation given by the DOS for their volte-face is that "extraordinarily heavy applicant demand for numbers, primarily by Citizenship and Immigration Services offices for adjustment of status cases" required recalibration of the visa cutoffs in November 2021. [link]

10/12/2021 - COVID-19 Vaccine Required for I-485 Adjustment Applications
Applicants for adjustment of status must include a "medical" (Form I-693) with the application. The new version of Form I-693, dated September 13, 2021, implements the requirement that immigrants receive a vaccine for COVID-19. USCIS has indicated that if the prior edition of Form I-693 was signed by a civil surgeon before October 1, 2021, USCIS would continue to accept that form after October 1. [link]

9/21/2021 - Biden Administration Plans to Rescind COVID-19 Travel Bans by Early November
Starting in early November 2021, the White House will rescind the current geographic COVID-19 related travel bans implemented for individuals from China, Iran, the Schengen Area (Europe), U.K., Ireland, Brazil, South Africa, and India. In place of these bans, all international travelers will be required to prove that they have been fully vaccinated against COVID-19, as well as provide proof of a negative COVID-19 test within three days of boarding a flight to the United States. Routine visa processing is also expected to resume at American consulates in India starting some time in November. Until then, only expedited appointments will be available for those meeting the requirements for a National Interest Exemption (NIE) or another proclamation exemption. [link]

9/16/2021 - October Visa Bulletin Issued
The Department of State has issued the October Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. The effective cut-off for EB-3 India has progressed slightly to January 8, 2014 and the cutoff for EB-2 India has slightly progressed to July 8, 2012. Per DOS's recent statements, no significant progression is expected in the EB-3 India category next fiscal year (ending 9/30/22), while some movement may occur in EB-2 India depending on visa demand. USCIS estimates also indicate that a significant number of EB visa numbers will be wasted this fiscal year (ending 9/30/21), largely due to the inability of USCIS to handle the number of adjustment cases filed in late 2020. The Dates for Filing chart should be used for all family-sponsored applications, except that F2A applicants may file adjustment of status applications using the Final Action Dates chart. [link]

9/14/2021 - Certain Student Visa Appointments to be Waived at Consulates
DOS announced that through the end of 2021, consular officers are authorized to expand categories of F, M, and academic J visa applications that can be adjudicated without an in-person interview. Priority for waiver will be given to those who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility; or first-time F, M, and academic J visa applicants who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided they have no apparent ineligibility or potential ineligibility. [link]

8/20/2021 - September Visa Bulletin Issued
The Department of State has issued the September Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. The Final Action date for EB-3 India has jumped to January 1, 2014 and the cutoff for EB-2 India has progressed slightly to September 1, 2011. The Dates for Filing chart should be used for all family-sponsored applications, except that F2A applicants may file adjustment of status applications using the Final Action Dates chart. Per DOS forecasts, the EB visa quota starting in the new fiscal year (October 1, 2021) is expected to be around 300,000, a record number. As a result, significant progression is expected in over-subscribed visa categories next month. [link]

8/12/2021 - USCIS Extends Validity of I-693 Medicals from 2 to 4 Years
One requirement for I-485 applicants is to submit a Form I-693, Report of Medical Examination and Vaccination Record that has been prepared by a USCIS Civil Surgeon. For long-pending I-485 cases, expiring I-693s often result in RFEs, which delays case adjudication. In October 2020, a historic number of visa numbers became available in employment-based green card categories (carrying over from family-based numbers that went unused at consulates due to COVID-19 shutdowns). USCIS accepted many applications in FY2021 (beginning October 1, 2020), hoping to utilize all available numbers. Unfortunately, about 100,000 visas remain unused and will expire if not used by September 30, 2021. Part of the delay is because many I-485 applicants have expired Form I-693s, requiring the issuance of RFEs that delay adjudication. To speed up processing, effective August 12, 2021, USCIS is temporarily extending the validity period for Form I-693 from two years to four years. As before, the date of the civil surgeon s signature cannot be more than 60 days before the applicant filed Form I-485, otherwise a new Form I-693 will be required. [link]

7/29/2021 - USCIS Conducts Second Lottery for FY 2022 H-1B Cap
In March 2021, USCIS conducted an initial random selection on properly submitted electronic registrations for the fiscal year (FY) 2022 H-1B cap. Selected registrants were given until the end of June to file their full cap petitions. Based on the number of filings received, USCIS determined that not enough registrations had been selected. Therefore, a second lottery was conducted on July 28, 2022. Individuals with newly selected registrations will have the petitioner's myUSCIS account updated to include a selection notice, which includes details of when and where to file. While petitioners have until the beginning of November to file, early filing is recommended, especially for beneficairies who are seeking a change to H-1B status. [link]

7/21/2021 - USCIS Revises 30 Day Rule for Change of Status to F-1
In the past, an application seeking a change of status to F-1 could not be approved unless the prior status ended no earlier than 30 days before the F-1 program start date. This often required the filing of one or more "bridge" extensions of the prior status. In a policy shift, USCIS will now approve such change of status applications without requiring a bridge up to the 30 day mark. This should lead to faster F-1 adjudication and fewer denials caused by processing delays for I-539 applications. [link]

7/20/2021 - August Visa Bulletin Issued
The Department of State has issued the August Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. The Final Action date for EB-3 India has jumped to July 1, 2013 and the cutoff for EB-2 India remains static at June 1, 2011. The Dates for Filing chart should be used for all family-sponsored applications, except that F2A applicants may file adjustment of status applications using the Final Action Dates chart. Per DOS forecasts, the EB visa quota starting in the new fiscal year (October 1, 2021) is expected to be around 300,000, a record number. As a result, significant progression is expected in over-subscribed visa categories. [link]

7/2/2021 - USCIS Revises U Visa Intake Process to Expedite Some EADs
A new memo from USCIS creates a new procedure for U visa applicants to receive EADs more quickly than before. USCIS will now conduct an initial review of Form I-918 and will issue EADs and deferred action for 4 years to petitioners for U nonimmigrant status and qualifying family members if USCIS deems their petition bona fide , instead of completing a full waiting list adjudication. The memo further explains that those who do not receive a BFD EAD under this initial review will proceed to the full waiting list adjudication and, if their petitions are approvable, will be placed on the waiting list for a U visa. [link]

6/24/2021 - USCIS Extends COVID-19 Related Flexibilities
In a continuation of flexibilities that were implemented in response to the COVID-19 pandemic, USCIS will add an extra 60-day grace period to the deadline for any RFE, NOID, NOIR or denial requiring I-290B, if it was issued between March 1, 2020 and September 30, 2021. [link]

6/17/2021 - July Visa Bulletin Issued
The Department of State has issued the July Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. The Final Action date for EB-3 India has jumped to January 1, 2013 and the cutoff for EB-2 India has moved to June 1, 2011. The Dates for Filing chart should be used for all family-sponsored applications, except that F2A applicants may file adjustment of status applications using the Final Action Dates chart. Per the DOS visa czar, EB3 retrogression is not expected soon. Therefore, EB-2 India applicant with a priority date that is before January 1, 2013 should consider filing an EB-3 downgrade. Per DOS forecasts, the EB visa quota starting in the new fiscal year (October 1, 2021) is expected to be around 300,000, a record number. As a result, significant progression is expected in over-subscribed visa categories. [link]

6/9/2021 - USCIS Extends EAD Duration for Adjustment Applicants
In a policy shift, USCIS will now issue initial and renewal EADs to adjustment applicants that are valid for 2 years (instead of 1 year as before). Replacement EADs will not be affected by this update; USCIS will continue to issue replacement EADs with the same validity dates as the original EAD. [link]

6/9/2021 - USCIS Reverses Prior Policy on Denials Without RFE
The Trump-era USCIS issued a policy in 2018 that empowered the agency to deny any application that was missing "initial evidence" (i.e., required evidence as specified in the form instructions), even without an RFE or NOID. USCIS is now rescinding that policy in favor of a 2013 policy instructing officers to issue RFEs in cases involving insufficient evidence before denying such cases (unless the officer determined that there was no possibility that the benefit requestor could overcome a finding of ineligibility by submitting additional evidence). [link]

6/9/2021 - USCIS Expands Criteria for Expedites
USCIS has historically been rather strict in accepting expedite requests for long-pending applications and petitions. This has been a cause for concern for individuals whose status or employment benefits have run out, often due to inordinate delays by USCIS. Under a revised policy, USCIS will now consider expedite requests for those facing financial loss, individuals requiring travel for medical treatment, and for certain nonprofit organizations. Expedite requests can be made by calling USCIS at (800) 375-5283. [link]

5/20/2021 - June Visa Bulletin Issued
The Department of State has issued the June Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. The Final Action date for EB-3 India has jumped to November 1, 2011 and the cutoff for EB-2 India has retrogressed to December 1, 2010. The Dates for Filing chart should be used for all family-sponsored applications, except that F2A applicants may file adjustment of status applications using the Final Action Dates chart. [link]

5/13/2021 - USCIS Abandoning Biometrics Requirement for E, H-4 and L-2 Categories
Effective May 17, 2021, U.S. Citizenship and Immigration Services will stop requiring applicants seeking H-4, L-2, and E nonimmigrant status to undergo biometrics. The processing time for categories such as H-4 (and H-4 EAD) has been severely delayed due to the biometrics requirement, which was imposed under the Trump administration. Certain applicants may still be required to undergo biometrics on a case-by-case basis, and the halt is set to expire in 2 years. Form I-539 applicants who have already received a biometric services appointment notice should still attend their scheduled appointment. [link]

5/11/2021 - USCIS Biometrics Can Now Be Rescheduled on the Phone
USCIS has announced that applicants with biometrics appointments can now call the USCIS Contact Center (800-375-5283) to reschedule their appointments. Previously, applicants had to submit requests in writing to reschedule their biometrics appointments. [link]

5/3/2021 - Presidential Proclamation Limiting Nonimmigrant Entries from India
President Biden issued a proclamation suspending the entry into the United States, as nonimmigrants, of certain individuals who were physically present in India during the 14-day period preceding their entry or attempted entry. The Proclamation does not apply to:

  • Any non-U.S. citizen spouse of a U.S. citizen or legal permanent resident (LPR),
  • Any non-U.S. citizen who is the parent or legal guardian of a U.S. citizen or LPR, provided that the U.S. citizen or LPR child is unmarried and under the age of 21,
  • Any non-U.S. citizen who is the sibling of a U.S. citizen or LPR, provided both the non-U.S. citizen and the U.S. citizen or LPR sibling are unmarried and under the age of 21,
  • Any non-U.S. citizen who is the child, foster child, or ward of a U.S. citizen or LPR, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications.
There is also a broad "national interest exemption" that the Department of State has determined to apply for F-1 students with programs beginning August 1, 2021 or later, green card holders, journalists, pilots, certain J-1 exchange visitors, and critical infrastructure workers. Given the dire COVID-19 situation in India, it is expected that the proclamation will continue to last for several months. [link]

4/30/2021 - Prior Deference Memo Resurrected by Biden USCIS
In 2004, USCIS issued a memo directing officers to generally defer to prior determinations of eligibility when adjudicating extensions petitions involving the same parties and facts as the initial petition. USCIS rescinded the 2004 memo in 2017, as part of the Trump administration's crackdown on legal immigration. USCIS is now restoring the 2004 deference policy, which means that RFE and denial rates for H-1B extensions (with no change in employer or circumstances) should increase. [link]

4/22/2021 - May Visa Bulletin Issued
The Department of State has issued the May Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. The Final Action date for EB-3 India is August 1, 2010 and the cutoff for EB-2 India is February 1, 2011. The Dates for Filing chart should be used for all family-sponsored applications, except that F2A applicants may file adjustment of status applications using the Final Action Dates chart. [link]

4/12/2021 - USCIS Will Allow F-1 Students to File OPT Applications Online
In the past, F-1 OPT applicants who filed their I-765 applications just before the deadline faced the risk of losing out on the opportunity to have work authorization if the I-765 application were rejected (e.g., for an incorrect check amount or outdated form). USCIS is now allowing such OPT applications to be filed online (and thereby accepted immediately), which should help avoid this problem. [link]

4/1/2021 - Presidential Proclamation 10052 Expires
Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants, expired on March 31, 2021. This will particularly come as a relief for many first-time H-1B and L-1 visa applicants. [link]

3/31/2021 - USCIS Allowing for Resubmission of Rejected I-485 Applications
In the rush to file Form I-485 adjustment applications in October and November 2020, certain applicants omitted to complete boxes 9.a. and 10 in Part 2 of the form, resulting in rejection by the USCIS mailroom. By the time the rejection was received, priority dates for many applicants had already retrogressed, precluding a refiling. USCIS will be contacting applicants affected by this situation and allow them to resubmit their applications, in recognition of the agency's extraordinary delay in receipting incoming I-485 applications. [link]

3/30/2021 - USCIS Has Completed the H-1B Initial Electronic Registration Selection Process
USCIS has conducted its lottery for the fiscal year (FY) 2022 H-1B numerical allocations (H-1B cap) and the advanced degree exemption (master s cap). All petitioners have been notified via their my.uscis.gov accounts. Selected applicants can file their full petitions within a 90 day window beginning in April. Unselected candidates may be selected in a second lottery, which may be run later this year depending on the number of filings from April to June. [link]

3/14/2021 - USCIS Will Consider Motions to Reopen for H-1B Denials Targeting Consulting Companies in 2019 and 2020
IT consulting companies that file H-1B petitions have long been a target of USCIS scrutiny. That scrutiny culiminated in the February 2018 memo entitled Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, which led to a high level of RFEs and denials. The memo was rescinded in June 2020 as part of a settlement between ITServe and DHS. USCIS has now suggested that it will entertain late-filed Motions to Reopen for H-1B denials that were based on the February 2018 memo, and another memo from March 2017 which led to increased denials for Computer Programmer positions. These motions can be filed where there is time remaining in the validity period initially requested on the H-1B petition. Practically speaking, this means that petitioners who had an H-1B cap denial in 2019 or 2020 should consider filing a motion to reopen if:

  • The H-1B denial was under "specialty occupation" grounds and the LCA was filed under the Computer Programmer (OES: 15-1131) category, or
  • The H-1B denial referenced that the work would be done at a third party worksite

Motions should only be filed if the petitioner has an ongoing need for the beneficiary. [link]

3/12/2021 - USCIS Abandons Enhanced Public Charge Requirements
As part of its policy to crack down on immigration, the Trump administration greatly expanded documentation requirements to meet the public charge provision within the Immigration and Nationality Act. That statute prohibits the entry of immigrants who might become "public charges" due to poverty. USCIS has now repealed the Trump-era regulation that enhanced the agency's ability to deny applications on public charge grounds. Form I-944 has been withdrawn and is no longer required with adjustment applications. The public charge statute will now be enforced as it was before the Trump administration took office. [link]

3/9/2021 - TPS Announced for Venezuela
Temporary Protected Status (TPS) has been extended to Venezuela nationals who have been in the United States since March 8, 2021. The 180-day registration period runs from March 9, 2021 through Sept. 5, 2021. [link]

3/5/2021 - April Visa Bulletin Issued
The Department of State has issued the April Visa Bulletin. The Final Action date for EB-3 India is September 1, 2010 and the cutoff for EB-2 India is May 1, 2010. The Dates for Filing for EB-3 and EB-2 India are January 1, 2014 and May 15, 2011, respectively. USCIS has yet to announce which chart will apply in April. [link]

3/4/2021 - USCIS Announces Flexibilities for OPT I-765 Filings Given Delays
In an acknowledgement of its inordinate delays in processing Form I-765 applications for F-1 students seeking OPT work authorization, USCIS has announced a few "flexibilities" in its processing procedures for such applications. First, the 12 months of post-completion OPT will now begin upon Form I-765 approval. Second, Form I-765 applications rejected by the USCIS mailroom (e.g., for missing checks or forms) between Oct. 1, 2020 and May 1, 2021 can be resubmitted until May 31, 2021 using the same I-20. Lastly, Form I-765 applications that were erroneously accepted despite a missing signature or check will not be denied outright. Rather, USCIS will request correction through a Request for Evidence. [link]

3/2/2021 - March Visa Bulletin Issued
The Department of State has issued the March Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applications must be filed based on the Final Action Dates chart, which was the normal practice in the last fiscal year. The Dates for Filing chart should be used for all family-sponsored applications, except that F2A applicants may file adjustment of status applications using the Final Action Dates chart. The Final Action dates for EB-3 India is July 1, 2010 and the cutoff for EB-2 India is January 15, 2010. We expect USCIS to apply the "Final Action Dates" for adjustment applications for the rest of the fiscal year (ending September 31, 2021). [link]

2/19/2021 - Biden Introduces US Citizenship Act of 2021 in Congress
Keeping his campaign promise, President Joe Biden has presented a sweeping immigration reform bill to Congress. If passed, the massive 353-page bill will result in the most significant transformation of immigration law in the last 50 years. The bill seeks to create a pathway to citizenship for 11 million undocumented people, increase the diversity quota from 55,000 to 80,000, eliminate the 3 and 10-year bars for unlawful presence, improve the immigration court system, eliminate the 1-year deadline for filing asylum claims, and re-orient border enforcement towards the use of smart technologies. In the area of employment-based immigration, the bill would:

  • Eliminate the per-country cap on immigrant visas
  • Exempt dependents of I-130 and I-140 beneficiaries from the immigrant visa count
  • Raise the worldwide immigrant visa quota from 140,000 to 170,000
  • Reclaim around 220,000 unused immigrant visas from fiscal years 1992 to 2020
  • Make "current" the priority date of all STEM U.S. Ph.D. graduates
  • Make "current" the priority date of anyone who has spent 10 years in the green card process
  • Allow DHS/DOL to pass regulations restricting employment-based immigration in markets with high unemployment
  • Forbid DHS from revoking the H-4 EAD program, and allow for automatic extensions to address processing delays
  • Reshape the H-1B lottery to favor the highest wage earners

The bill faces Republican opposition due to its legalization program for the undocumented. Analysts predict that the current bill has a slim chance of collecting the required 60 votes in the Senate. However, Democratic lawmakers will also be pushing the bill in piece-meal fashion, which should result in passage of certain components. The country-cap repeal is expected to be passed this year, as a prior version passed both houses in December 2020 before failing to be reconciled in timely fashion. [link]

2/5/2021 - Filing Dates Announced for FY2022 H-1B Cap Registration Period
USCIS announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will open at noon Eastern on March 9 and run through noon Eastern on March 25. During this period, prospective petitioners will be able to fill out petitioner and beneficiary information and submit their registrations. This year's registration process will be run almost exactly the same as last year, with a $10 registration fee per applicant. Lottery winners will be announced on March 31, 2021. [link]

1/30/2021 - Sweeping Changes by the New Biden Administration
Despite being in power for less than 2 weeks, President Joe Biden has already reversed many of the Trump administration's damaging immigration policies. The Biden administraton is retooling USCIS with pro-immigration leaders, such as Alejandro Mayorkas, which should lead to improvements in processing and adjudication at the agency. Through executive orders and proclamations, the Biden administration has:

  • Revoked the Muslim and African travel bans
  • Issued a 100 day pause on deportations
  • Halted border wall construction
  • Increased accountability by ICE and CBP
  • Ended the inhumane childhood separation policy at the border
  • Blocked the Trump administration's attempt to discount the undocumented from the census
  • Extended Syrian TPS by 18 months
  • Ordered immigration agencies to preserve the DACA program

The administration will also present to Congress a broad immigration reform package that would legalize 11 million undocumented people, and significantly boost priority dates by ending per-country caps and reclaiming unused immigrant visa numbers from prior years. The Biden immigration bill faces stiff Republican opposition and is unlikely to pass as a whole. More likely, pieces of the bill will be passed over time through bi-partisan negotiation or budget reconciliation.

The most important changes in the area of H-1B/H-4 law are as follows. The administration has:

  • Withdrawn a USCIS proposal to revoke the H-4 EAD rule
  • Revoked the Buy American Hire American order, which was the basis for very high RFE and denial rates in recent years
  • Cancelled final rules that have not yet gone into effect, such as the recent H-1B/DOL rule on employer control. That rule would have required end-clients in third party arrangements to file LCAs and concurrent H-1B petitions. The rule also sought to resurrect the January 2010 Neufled Memo, which expanded employer control documentation requirements for many years before being withdrawn in June 2020 pursuant to the ITServe settlement.
  • Instructed USCIS to delay implementation of its H-1B cap rule, which effectively requires H-1B petitioners to file cap registrations with Level 4 wages to have any chance of being picked in the lottery. Though USCIS confirmation is pending, that rule is now expected to take effect next year and not this cap season (March 2021).

Another DOL rule, to increase the prevailing wages in the OES wage data system, has also been delayed by 60 days, now taking effect on May 14, 2011. Court challenges are expected against both the DOL prevailing wage rule and the H-1B cap rule. A prior version of the prevailing wage rule was blocked by courts in December 2020, and the new version still suffers from the same procedural flaws as the overturned rule. The H-1B cap rule similarly suffers from statutory deficiencies. It will be up to courts and the Biden administration to decide whether to overturn these rules.

Additional reforms are expected soon, including repeals of the green card/H/L/J travel bans (Presidential Proclamations 10014 and 10052), the public charge rule, and the health insurance requirement for immigrant visa applicants. [link]

Click here for an automatic form that allows you to contact your district's Congressional representatives about the need for Comprehensive Immigration Reform.

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INFORMATION UPDATES
10/24/2023
Here are the Top 5 Tips for H-1B employers regarding the efficent hiring of H-1B workers. This article highlights visa caps, accurate job classification, meticulous documentation, readiness for site inspections, and the importance of staying informed on evolving regulations.

7/26/2023
Recent news has created some concern in the H-1B community about increased government investigations for H-1B employers.  Here are tips for when the government comes knocking.

4/3/2023
Akshat Tewary has recently been cited in various publications for his advocacy work on corporate banking reform.

1/30/2022
Many clients have recurring questions about the upcoming H-1B registration period, which runs from March 1, 2022 to March 18, 2022. Here are answers to the Top 5 FAQ's About this Year's H-1B Cap.

11/20/2020
We have submitted a comment letter to the DHS explaining that its latest proposal to favor high wage earners for selection under the H-1B lottery is contrary to the Immigration and Nationality Act (INA) and Congressional intent, and is therefore illegal.

7/10/2019
The House of Representatives has passed a very significant bill, H.R. 1044, that would fundamentally change the landscape for employment-based green cards for Indian and Chinese nationals. Read our analysis of the bill, its chance of final passage, and its likely impact.

1/25/2019
We filed a complaint requesting DHS to take down their highly partisan "Walls Work" website, which violates OMB/DHS guidelines under the Information Quality Act.

1/2/2019
We have submitted a comment letter to the DHS highlighting numerous legal flaws in the proposed H-1B cap registration system.

5/14/2018
93 percent of approved H-4 EADs have been issued to Indian citizens. And 93 percent of approved H-4 EADs have been issued to women.

12/20/2017
USCIS processing data reveals that the agency has significantly increased scrutiny of H-1B petitions. In November 2017, the approval rate for H-1B petitions was 82.4%, which is a significant drop from the 92.3% approval rate for the same time last year. The RFE rate in November 2017 was 46.6%, which is more than 4 times the recent low of 11.8% in May 2016.

4/24/2017
Join us on Monday, April 24, 2017 at 8:00pm EST for a free, 1-hour webinar entitled "Is the H-1B Program in Jeopardy?" We will discuss the various currently-pending legislative bills, executive orders and judicial cases impacting the H-1B program. Click here at that time to join the conference.


7/10/2015
A recent AAO decision, Matter of Simeio Solutions LLC, has significantly changed immigration law as it relates to H-1B employees who shift to new worksites. Read our analysis of the case, which answers the question: When Are Amended H-1B Petitions Required for Worksite Changes?.

2/15/2014
The House of Representatives is considering immigration reform measures. Click here for our summary of the Senate's version of immigration reform, which was passed in June 2013. The bill is particularly significant for IT companies that rely heavily on foreign workers.

1/24/2012
Companies that sponsor H-1B petitions can proactively update their information in VIBE, which is the commercial database that USCIS uses to check company status. This link allows customers to update their records without being subject to commercial marketing by Dun and Bradstreet.

10/5/2011
In a troubling development, the USCIS California Service Center has informally publicized that an amended H-1B petition should be filed if an LCA is filed anytime after approval of a prior, un-expired petition. USCIS is expected to formalize a position on this issue soon.

9/14/2011
Applicants for a change from F-1 to H-1B status under the "Cap Gap" regulations should remember that cap-gap work authorization only applies until September 30, 2011. If a Cap Gap H-1B petition remains pending on October 1, 2011, the H-1B beneficiary is eligible to stay in the US while that change of status petition is pending, but effective that date he/she cannot work.

4/7/2011
USCIS has provided a Q+A covering the F-1 to H-1B Cap Gap regulations.

1/22/2011
Our sports immigration blog covers the issue of major league sports lockouts, and what effect they have on the immigration status of professional athletes.

11/8/2010
Based on recent USCIS processing trends, we have issued an article addressing the implications of the January 2010 Neufeld Memorandum for computer consulting companies filing H-1B petitions.

2/9/2010
In light of recent publicity regarding refusals of traveling H-1B workers at the Newark port-of-entry, we have prepared an information bulletin entitled "Is Traveling a Violation? Tips for H-1B Workers Going Abroad." This article covers implications of the Neufeld Memo, 221(g) denials at the Consulate, and admission refusals by CBP officers.

2/4/2010
We have issued an information summary entitled "H-1B Cap Filings for Current F-1 Students," which covers various issues facing F-1 students relating to Optional Practical Training (OPT) and H-1B Cap filings. The article provides a summary of both employment categories and discusses various issues such as employer obligations under OPT and H-1B and the Cap-Gap provisions.

9/11/2009
As we reported earlier, the USCIS's Office of Fraud Detection and National Security (FDNS) has begun to increase the number of investigations and random audits being conducted on H-1B employers. USCIS-Vermont Service Center has confirmed that it expects to conduct 20,000 site visits to H-1B employers in the near future. These audits are in addition to the normal complaint-driven investigations that have always been conducted by state-level Department of Labor agencies. Moreover, there have been troubling reports that in some cases, FDNS is "outsourcing" H-1B auditing functions to private detectives with no formal training or allegiance to the USCIS. It is highly questionable whether lay private detectives and investigators would know of the complex regulations, nuances and exceptions that relate to employers' obligations under the H-1B program. H-1B employers are encouraged to pay due attention to their compliance requirements in the near term, including proper maintenance of I-9 records and LCA-related public access file/notice postings.

3/6/2009
Our firm conducted a web teleconference on March 6, 2009 on the topic of "LCA Compliance Issues for Employers of H-1B Workers."



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