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. [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).

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.

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]

1/14/2021 - DOL Revises OES Wage Methodology Again to Raise Wage Levels
In October 2020, the DOL issued an Interim Final Rule dramatically raising the wage levels that are used for H-1B and PERM green card filings. That rule was overturned in court for procedural flaws. In a final salvo, the outgoing Trump administration's leadership at DOL has issued a Final Rule that once again revises the methodology used to compute the 4 wage levels in the OES wage system. The new methodology yields wage levels as follows: 1) Level I wages will be at the 35th percentile, as compared to 17th percentile currently; 2) Level II wages will be at the 53rd percentile, as compared to 34th percentile currently; 3) Level III wages will be at the 72nd percentile, as compared to 50th percentile currently; 4) Level IV wages will be at the 90th percentile, as compared to 67th percentile currently. The new wage levels go fully into effect on July 1, 2022. Current wage levels stay in force until June 30, 2021, after which the prevailing wages will be at 90% of the new wage levels for 1 year. There is also a complex transition period in force for certain I-140 beneficiaries. The rule is expected to face legal challenge for utilizing an arbitrary methodology that defies the requirements of the implementing statute. [link]

1/1/2021 - The Current State of the H-1B Program
Under the Trump administration, the immigration agencies have issued a flurry of memos, proposals and final rules affecting H-1B workers. Most of these rules have been challenged in court, leaving many people confused about the current state of the H-1B program. As we rapidly approach cap season for the new year, we would like to quickly summarize the current state of the H-1B program for our readers. As we reported earlier, USCIS entered into a settlement with ITServe in summer of 2020, in response to that organization's lawsuits challenging the high rate of RFEs and denials in recent years. The settlement relaxed documentary requirements in petitions involving third-party worksites. In October 2020, USCIS issued an interim final rule that would have effectively upended the ITServe settlement and reimposed strict requirements on H-1B petitioners. At the same time, the DOL issued an interim final rule that dramatically increased wage levels for PERM and LCA filings. Both rules were overturned by courts in December 2020 for procedural deficiencies, and the Trump administration does not have enough time to reissue the rules before the Biden administration takes over on January 20, 2020. Therefore, the ITServe Settlement continues to apply and prevailing wage levels have returned to normal. Also in October 2020, USCIS proposed a major revision to the H-1B cap registration system, which would have effectively required Level 4 wages for all cap cases. That proposal is now essentially dead, as there is not enough time for it to pass before the Biden administration takes over. Moreover, despite signaling that H-4 EADs would be repealed at any given moment, such a repeal is not going to happen before January 20, 2020, and is unlikely to occur thereafter under the immigrant-friendly Biden administration. The bottom line is that the H-1B cap registration system will operate this year exactly the same as last year, and the standard of review for petitions will continue to follow the ITServe settlement. [link]

12/31/2020 - Trump Extends H/L/J and Immigrant Visa Stamping Restrictions Until March 31
In June 2020 and April 2020, President Trump issued executive orders prohibiting visa stamping for the immigrant, H-1B, H-2B, H-4, L-1, L-2 and most J visa categories through December 31, 2020. He has now extended those orders to March 31, 2021. Significant exceptions apply to both orders. The H/L/J visa stamping bans do not apply to anyone who was in the United States on June 24, 2020, or had a nonimmigrant visa/advance parole on that date. The immigrant visa restrictions do not apply to anyone who was in the United States on April 23, 2020, or who already had an approved immigrant visa/advance parole on that date. Both orders also contain exemptions for certain essential workers. Status filings (i.e., extensions, amendments, transfers, adjustments, etc.) are not impacted by definition. Moreover, employees of companies that were parties to an October 2020 lawsuit against the orders are exempted. Lastly, many observers expect incoming President Biden to overturn both orders shortly after he takes office on January 20, 2020. It should be noted that exempt individuals may still face delays at consulates due to COVID-19-related staffing issues. [link]

12/23/2020 - January Visa Bulletin Issued
The Department of State has issued the January Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applications must now 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 March 22, 2010 and the cutoff for EB-2 India is October 8, 2009. We expect USCIS to apply the "Final Action Dates" for adjustment applications for the rest of the fiscal year (ending September 31, 2021). [link]

12/20/2020 - Congress Fails to Pass S386 / HR1044 (Fairness for High-Skilled Immigrants Act)
Despite passing both the House and the Senate, S386 / HR1044 (Fairness for High-Skilled Immigrants Act) will not become law this year. That proposal would have ended the per-country limitation for employment-based immigrant visas, dramatically shortening the wait times for Indian-born applicants. Congress failed to reconcile key differences in the House and Senate versions of the bill, and both bills expire after 12/31/20 with the end of the Congressional cycle. Last ditch efforts to append a reconciled bill to the year-end omnibus budget failed. Looking ahead, we suspect that some immigration reform is likely to pass under the Biden administration. Congress will have to decide whether to adopt a piecemeal that is limited to a repeal of per-country limitations, or a combined approach that includes the repeal and broader immigration reforms requested by various communities and groups. [link]

12/1/2020 - Recent DOL and USCIS Rules Overturned in Court
As we reported earlier, effective October 8, 2020, a DOL interim final rule increased the wages listed at each of the 4 wage levels (I-IV) in the OES system. In certain areas with already-high wage levels (such as Seattle, San Francisco and New York), the new OES wage data effectively made H-1B filings cost-prohibitive. Also in October, USCIS issued an Interim Final Rule revising the regulatory standards for H-1B petitions starting on December 7, 2020. Generally, the new rule encapsulated de facto USCIS policy as expressed in RFEs over the last few years. For example, the rule revised the definition of specialty occupation to require the beneficiary's degree to very closely relate to the offered position's duties, emphasized that petitioners placing H-1B employees at third party worksites must document the availability of work at the site, and stated that USCIS would issue approvals for only up to 1 year where there is a third-party worksite. Both Interim Final Rules were challenged in court by a broad range of plaintiffs led by the Chamber of Commerce, and both rules have now been struck down. The reviewing judge found that the agencies were using the COVID-19 pandemic as a pretext to avoid necessary notice-and-comment requirements under the Administrative Procedure Act. The repeal of the USCIS Interim Final Rule means that USCIS will continue to be bound by the significant concessions granted under the ITServe settlement from earlier this year. Also, the repeal of the DOL Interim Final Rule means that the OES wage data issued in July 2020 should once again apply. It remains to be seen if the agencies appeal the decision, or if the Biden administration will support re-proposals of the defeated rules that comply with the rulemaking formalities. [link]

11/20/2020 - December Visa Bulletin Issued
The Department of State has released the Visa Bulletin for December 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart, which is similar to the November chart with slight variations. Notably, EB-1 India has progressed by two months to November 1, 2020, and EB-3 has retrogressed by one year to January 1, 2014. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The filing cutoff for EB-2 India remains at May 15, 2011. [link]

11/8/2020 - Joe Biden Defeats Donald Trump in Presidential Election
After a close contest, Joe Biden has defeated Donald Trump in the Presidential election. Starting on January 20, 2020, the Biden administration will begin unravelings the many knots that the Trump administration created within the immigration system. Biden is expected to issue executive orders within the first 100 days of his presidency to undo the child separation policy at the border, return the asylum system to normal, reverse the public charge rule, cancel plans for a Border Wall, re-implement DACA, end the Muslim bans, re-orient ICE/CBP towards prioritizing criminals for deportation, and streamline the naturalization process. He will also push Congress to pass laws creating a pathway to citizenship for 11 million undocumented people, reform the temporary visa system, preserve the diversity lottery system, increase the number of employment-based visas according to market demand, and end the per-country cap for immigrant visas. These latter changes are highly dependent on cooperation from anti-immigrant members of Congress, who have blocked all broad-based immigration reform for over a decade. [link]

10/30/2020 - USCIS Proposes Wage-Based Revision to H-1B Cap
In March 2020, USCIS implemented a new pre-registration system for the H-1B cap. The agency has now proposed a further revision that would favor highly paid cap applicants. Under the proposed system, cap registrants who are offered Level IV wages would be given first preference for the 65,000 regular cap and the 20,000 U.S. Master's exemption. Level 3 wage candidates would only be considered if all Level 4 registrations have been selected, and so on down to Level 1. If there are more registrations than cap numbers at any wage level, a lottery will be conducted at that wage level. Under this system, USCIS expects that no Level 1 candidates would be selected under the H-1B lottery. When USCIS first proposed its cap registration system, we wrote a comment letter reminding the agency that Congress never intended to limit the H-1B viss to "the best and the brighest." Rather, any candidate with knowledge falling within a "specialty occupation" should qualify. In response to our comment, USCIS made an important admission: "DHS agrees that Congress has not limited the H-1B classification to the 'best and brightest' foreign nationals." The latest proposal is at odds with this admission. It states that the proposed wage-preference cap system was devised in order to "maximize H-1B cap allocations, so that they more likely would go to the best and brightest workers." However, this purpose is contrary to Congressional intent, which DHS has previously recognized. The new rule is expected to face a court challenge (like most of the recent proposals by USCIS). [link]

10/29/2020 - November Visa Bulletin Issued
After a long delay, the Department of State has issued the November Visa Bulletin, with date cutoffs closely matching the October Visa Bulletin. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The priority date cutoff for purposes of Form I-485 filings under EB-3 India is January 1, 2015, while that of EB-2 India is May 15, 2011. The Final Action dates for EB-2 India (September 22, 2009) and EB-3 India (March 1, 2010) have progressed slightly. Because of the unusual reversal where EB-3 is more favorable than EB-2, a large number of EB-2 eligible individuals are seeking to downgrade their I-140s to EB-3, and thereby file for adjustment of status many years visbefore they would otherwise have been able to. As receipts have started to come in for EB-3 downgrades, speculative rumors about mass denials of downgrade cases are proving to be unfounded. Our firm is currently accepting both I-485 and I-140/I-485 downgrade cases for processing. Given the enormous demand for filings, it unknown whether priority dates will continue to be as favorable in December as they are in November. [link]

10/16/2020 - Premium Processing Fee Increase
To address the budget shortfall at USCIS, Congress passed Pub. L. No. 116-159, which increases the fee for Form I-907, Request for Premium Processing, from $1,440 to $2,500, for all filings except those from petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status. USCIS will be implementing this change in piece-meal fashion. For now, no new form types are being added to premium processing service, but the fee will increase to $2500 effective October 19. [link]

10/7/2020 - DOL Changes Computation of Prevailing Wage in OES Wage Survey
The Department of Labor maintains the OES Wage Survey, which is the primary source of wage data for computation of H-1B and PERM prevailing wages. In an interim final rule effective October 8, 2020, DOL is revising its methodology to effectively increase the wages listed at each of the 4 wage levels (I-IV) in the OES system. For example, what was previously a Level IV wage under the prior system will now correspond roughly to a Level II wage. The rule is expected to face court challenge because the DOL published it as an Interim Final Rule, without going through the normal notice and comment procedure that applies to agency rulemaking. Under the Administrative Procedure Act, a federal agency can only a publish a rule without giving the public an opportunity to comment on a proposed version if "good cause" exists. "Good cause" can exist in case of emergency or Congressional acquiescence. Many observers believe that the DOL rule does not meet this standard, and instead has been rushed through as an Interim Final Rule as a political move in anticipation of the November presidential election. [link]

10/7/2020 - USCIS Issues New Specialty Occupation Regulation
USCIS has issued an Interim Final Rule revising the regulatory standards for H-1B petitions effective December 7, 2020. Generally, the new rule encapsulates de facto USCIS policy as expressed in RFEs over the last few years. The regulation also contains some important changes to existing policy. The rule revises the definition of specialty occupation to require the beneficiary's degree to very closely relate to the offered position's duties. Speculative employment is not permitted, and petitioners placing H-1B employees at third party worksites must document the availability of work at the site. USCIS will issue approvals for only up to 1 year where there is a third-party worksite (given that purchase orders are rarely for a duration in excess of 1 year). All H-1B petitioners must also demonstrate that they will serve as the legal "employer" of the H-1B worker. The new regulation deviates from the January 2010 Neufeld Memo's emphasis on "employer control" and instead adopts a totality of circumstances test to gauge whether an H-1B petitioner is the "employer." The regulation also suggests that failed site visits at claimed worksites could lead to the revocation of all H-1B petitions listing such worksites. As we predicted earlier, this new regulation has been promulgated to undo the significant concessions granted under the ITServe settlement from earlier this year, which was a cause of embarrassment for the agency. As with the DOL Interim Final Rule, this USCIS Interim Final Rule is expected to face legal challenge. [link]

9/29/2020 - Proposed Changes to USCIS Fees and Forms Put on Hold
USCIS previously issued a final rule that would have imposed new fees and forms effective October 2. Several immigration advocates challenged the legality of the rule. Today, in Immigrant Legal Resource Center v. Wolf, a federal district court in California issued a nationwide preliminary injunction on the USCIS rule. The nationwide scope of the injunction is especially noteworthy given that the U.S. Supreme Court in DHS v. New York recently took issue with district courts issuing broad, nationwide injunctions benefiting non-parties. That Supreme Court case is what eventually led USCIS to reimpose the public charge rule (discussed below). Today's district court injunction means that the proposed fee increases and form changes will not take effect from October 2. All fees and forms currently on the USCIS website will continue to be valid. While the injunction on USCIS is only temporary, it should be noted that a final decision is unlikely for several months. Also, any such temporary injunction must show "likelihood of success on the merits" so chances are high that the immigration advocates who challenged the rule will eventually win their case. The district court observed a number of procedural flaws in USCIS's fee rule, including the fact that Trump's appointee to head DHS, Chad Wolf, has been appointed illegally. [link]

9/26/2020 - October Visa Bulletin Issued
Because of the COVID-19 pandemic, a large number of visa numbers went unused at the consulates in the last few months. Those numbers are being carried forward to the start of the new fiscal year in October 2020. In order to ensure that all of these numbers are used, DOS has issued a visa bulletin with very significant progression in the "Dates for Filing" category, and more modest progression of the "Final Action Dates" category. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The priority date cutoff for purposes of Form I-485 filings under EB-3 India is January 1, 2015, while that of EB-2 India is May 15, 2011. Because of the unusual reversal where EB-3 is more favorable than EB-2, a large number of EB-2 eligible individuals are seeking to downgrade their I-140s to EB-3, and thereby file for adjustment of status many years before they would otherwise have been able to. Our firm is currently accepting both I-485 and I-140/I-485 downgrade cases for processing. Given the enormous demand for filings, it is questionable whether priority dates will continue to be as favorable in November as they are in October, despite the fact that the October Visa Bulletin contains a forecast promising "rapid forward movement" in the coming months. It is quite likely that the DOS did not anticipate the rush for filings and the number of downgrades being filed. [link]

9/25/2020 - USCIS Proposes Ending Duration of Status (D/S) Status Expiration
Currently, nonimmigrants on F, J and I visa status are issued I-94s listing "Duration of Status" or D/S as their status expiration date. This means that they will not begin to accrue unlawful presence until the day after there is a formal finding of a status violation by USCIS or an immigration judge. USCIS has issued a proposal that would now assign a fixed end-date for I-94s issued to F, J and I nonimmigrants. This means that people in these categories would have to file periodic extensions of status, pay biometrics fees, and attend biometrics interviews. Interested parties who oppose the change can file a comment at the following link. [link]

9/22/2020 - USCIS Reimposes Public Charge Requirements
Based on pending litigation, the Second Circuit Court of Appeals had put the DHS's controversial public charge rule on hold. The court has now lifted its nationwide injunction. USCIS will not re-adjudicate cases that were initially filed without public charge information (due to the prior injunction) and then approved. However, all public charge requirements (such as filing Form I-944 with adjustment cases) have been reimposed. Further, USCIS may issue RFEs for pending cases that were filed without public charge information while the injunction was in effect. [link]

9/5/2020 - Revised Specialty Occupation Regulation Expected Soon
USCIS is pushing forward with long-delayed plans to revise the fundamental regulatory standard for H-1B visas: "specialty occupation". The proposal will revise the definition of "specialty occupation" to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and adopt a more restrictive definition of employment and employer-employee relationship. As many of you know, in a recent settlement with ITServe, USCIS agreed not to enforce employer-employee documentary requirements that were first laid out in the January 2010 Neufeld Memo. As we explained earlier this year, USCIS agreed to the provision mainly because it planned to re-impose a strict employer-employee definition in a future rulemaking. It is important to note that the IT Serve settlement will have no impact on this proposed regulation, once it is adopted. The proposal's renewed focus on "best and the brightest" H-1B workers means that preference will be given to high wage level workers. It should be noted that our firm previously challenged USCIS on this issue by highlighting that the H-1B statute never intended for the H-1B visa to be reserved for the "best and brightest" and in response, USCIS acknowledged that fact. How the agency now plans to get around that stark admission remains to be seen. We expect the proposed regulation to be enacted before the start of the next presidential administration cycle (in January 2021). [link]

8/25/2020 - USCIS Cancels Furlough Plans
It appears that USCIS had mischaracterized its profitability in earlier statements warning of imminent furloughs. In response to pressure from Members of Congress, USCIS has now discovered that it has sufficient funds to continue operations through the end of fiscal year 2020 (September 30, 2020) with no furloughs. Case processing delays are still to be expected. [link]

8/25/2020 - Interview Waiver Window Expanded to 2 Years
Due to pandemic-related disruption, DOS has expanded the window for Interview Waiver eligibility. Previously, only those applicants whose nonimmigrant visa expired within 12 months were eligible for an interview waiver when applying for visa re-stamping. DOS has temporarily extended the expiration period to 24 months. This policy is in effect until December 31, 2020. [link]

8/24/2020 - September Visa Bulletin Issued
The Department of State has released the Visa Bulletin for September 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The filing cutoff for EB-3 India remains at October 1, 2009, while that of EB-2 India remains at July 8, 2009. [link]

8/19/2020 - I-765 Approval Notices are Proof of Employment Authorization in Some Cases
Due to the COVID-19 pandemic and bureaucratic inefficiency, USCIS has been delaying the production of EAD cards in cases where Form I-765 has already been approved. Form I-9 instructions currently state that an approval notice for Form I-765 cannot be the basis to start work. To alleviate the harms that the delayed card production has caused, USCIS has announced that employees may use Form I-765 approval notices dated between December 1, 2019 and August 20, 2020 as proof of work authorization for Form I-9 purposes. [link]

8/18/2020 - OPT Students Must Update SEVIS With Employment Information
USCIS has issued a reminder that all OPT students must update their school's DSO with their current employment information. Failure to do so could be considered as grounds for falling out of status. SEVIS will count each day without employer information toward the total number of unemployment days allowed. [link]

8/12/2020 - DOS Expands Exceptions to June 22, 2020 Trump Executive Order Affecting H/L/J Nonimmigrants
DOS has announced additional exceptions to the Trump Executive Order restricting entry of H/L/non-research J Nonimmigrants in 2020. H-1B workers seeking visas can avail of stamping if their employment involves alleviating the effects of COVID-19, is at the request of a U.S. government agency, or if Part II, Question 2 of their approved Form I-129 listed previously approved employment without change with the same employer. An additional exemption applies to technical workers who meet 2 out of 5 listed factors. Those factors include the inability to perform remote work, potential hardship to the U.S. employer, unusual expertise held by the employee, a wage rate over 15% of the prevailing wage, or employment meeting a critical infrastructure need. L-1 workers employed by an employer meeting a critical infrastructure need can also apply for an exemption to allow for stamping. [link]

8/5/2020 - More Success for Immigrant Advocates in Federal Court
The government has declined to appeal a prior ruling by a district court that permanently enjoined USCIS from implementing its August 8, 2018 USCIS policy memo on the accrual of unlawful presence for F, J, and M nonimmigrants. That memo had suggested that F-1 students could be found to be out of status, and accruing unlawful presence, retroactively. However, that memo has been invalidated. As before, students can now be found to be out of status only as of the date that such a decision is made (not retroactively). In another case, DHS was successfully sued for delays in the printing of EAD cards. [link]

7/31/2020 - DHS Public Charge Rule Put on Hold
In August 2019, DHS issued a revised regulation concerning the public charge basis for inadmissibility, making it easier for immigration authorities to deny the admission of foreigners who receive or might be at risk of receiving public assistance or welfare. Immigrant advocates have succeeded in having a federal court in New York place a temporary injunction against DHS from enforcing this new public charge rule. The ruling cites many flaws in the new public charge rule, including its discriminatory intent. A final decision on the merits of the case is forthcoming. In the meantime, USCIS will apply the prior public charge guidance (from 1999). [link]

7/27/2020 - Delays at USCIS Expected Due to Planned Furloughs
USCIS has begun issuing furlough notices to its employees and anticipates that the agency will need to furlough approximately 13,400 employees starting August 31, 2020, if the agency does not receive funding from Congress. Employees may remain furloughed until October 1, 2020. USCIS has requested a $1.2 billion bailout from Congress to keep the agency afloat. Advocates for reform are urging members of Congress to hold USCIS accountable for this budget shortfall and ensure that any funding provided by Congress is conditioned on key changes in transparency, fiscal responsibility, and efficiency. [link]

7/22/2020 - ICE Withdraws Guidance on In-Person Study for F-1 Students, with Exceptions
Under a long-standing regulation (8 CFR 214.2(f)(6)(i)(G)), F-1 students cannot take more than 1 online class. On March 9, 2020, ICE relaxed that requirement, allowing all currently enrolled students to continue F-1 study fully online. On July 6, 2020, it issued new guidance that would have required all students to take at most one class online. However, after Harvard and MIT sued ICE, the agency withdrew the July 6, 2020 guidance as part of a settlement. Therefore, the March 9, 2020 guidance continues to apply. Because the March 9, 2020 guidance only applied to continuing students, this means that newly admitted F-1 students cannot enter the US in the fall if their university program does not have at least hybrid (online/offline) instruction. [link]

7/21/2020 - August Visa Bulletin Issued
The Department of State has released the Visa Bulletin for August 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The filing cutoff for EB-3 India has progressed to October 1, 2009, while that of EB-2 India remains at July 8, 2009. [link]

7/16/2020 - DOS Lists Exceptions to June 22, 2020 Trump Executive Order Affecting H/L/J Nonimmigrants
DOS has announced a few exceptions to the Trump Executive Order restricting entry of H/L/non-research J Nonimmigrants in 2020. In line with the text of the order itself, the announcement mentions that exceptions exist for COVID-19-related healthcare workers and those working on projects essential to a U.S. government agency. Significantly, the announcement states that national interest exceptions are available for H-4, L-2, and J-2 visa applicants whose spouse or parent is currently in the United States or has a valid visa. The announcement also seems to imply that those currently in the United States (with or without a valid visa stamp) on June 24, 2020 might be eligible for H/L/J stamping, although final confirmation of that interpretation is pending. [link]

7/10/2020 - ICE Requiring F-1 Students to Attend Classes Onsite in Fall 2020
ICE has announced that for the Fall semester of 2020, all F-1 students will be required to attend at least some classes in-person. The three options for continued study will be: remote learning from outside the United States, in-person classes or a hybrid model that combined both in-person and online classes. Harvard and MIT have already sued to block the measure, and a hearing is scheduled for Tuesday to determine if the judge will grant the universities' emergency order to block the Trump administration from enforcing this restrictive rule change. [link]

6/23/2020 - Trump Issues Executive Order Restricting Entry of H/L/J Nonimmigrants in 2020
President Trump issued a broad executive order prohibiting certain individuals from entering the country's border using H-1B, H-2B, H-4, L-1, L-2 and most J visas for the rest of the year. Significant exceptions apply. Naturally, the order has caused widespread concern in immigrant communities (its intended effect). The proclamation prohibits anyone from entering the country this year using an H/L/J visa IF that person:

1. was outside the United States on June 24, 2020;
2. did not have a nonimmigrant visa that was valid on June 24, 2020; and
3. does not have a temporary travel document (such as an advance parole) valid on June 24, 2020 or thereafter.

The executive order also extends the prior immigrant visa ban, issued under Proclamation 10014, through December 31, 2020. That earlier proclamation suspended immigrant visa (green card) processing at US Consulates for individuals who:

1. were outside the United States on April 23, 2020
2. did not have an approved immigrant visa on April 23, 2020; and
3. do not have a temporary travel document (such as an advance parole) at the time of travel.

6/22/2020 - USCIS Issues Memo Required Under ITServe Settlement
Earlier this year, DHS and ITServe entered into a settlement agreement after a string of legal challenges by ITServe plaintiffs against USCIS's H-1B policies. USCIS has now issued a memo implementing the changes that it was required to make under the settlement. First, the memo repeals two earlier memos (January 8, 2020 Neufeld Memo and February 22, 2018 Third-Part Worksites Memo), which had been used by USCIS to apply a very high standard for the adjudication of H-1B petitions by IT consulting companies. Under the latest memo, H-1B petitioners must still meet the regulatory requirement of showing that an employer-employee relationship will exist with the H-1B worker, but it appears that that requirement can be met merely by providing an employment agreement. The memo further states that an H-1B petitioner is not required by existing regulation to submit contracts between the petitioner and third parties or identify and document the beneficiary's specific day-to-day assignments. USCIS will also not apply the itinerary requirement at 8 CFR 214.2(h)(2)(i) in H-1B adjudications for now, until it issues new regulations on this requirement. Despite these changes, H-1B petitioners must still attest under penalty of perjury that a "bona fide job offer exists at the time of filing". This is USCIS's way of saying that, as before, a consulting company must confirm a project for a beneficiary prior to filing an H-1B petition. If a filing is done even though no project is confirmed, USCIS might see the filing as frivolous. In effect, the latest memo significantly lowers the bar for how much documentation USCIS will require. Still, the memo does not rescind the requirement that H-1B petitioners have specific work available for beneficiaries. In light of this ongoing requirement, we are still recommending that clients provide all available contracts, vendor letters and client letters in cases involved third party worksites. [link]

6/17/2020 - July Visa Bulletin Issued
The Department of State has released the Visa Bulletin for July 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The filing cutoff for EB-3 India is at June 1, 2009, while that of EB-2 India is July 8, 2009. [link]

5/29/2020 - USCIS Resuming Premium Processing in Phases
USCIS will be restarting its premium processing service for I-129 and I-140 petitions in phases, according to the type of case. Generally, pending petitions will be premium-eligible sooner and new filings and cap cases will be eligible later. Click the following links for the details: [link]

5/26/2020 - Trump Issues Executive Order Limiting Entry of Certain Chinese F-1 Students
President Trump has added a new hurdle for certain Chinese F-1 students, on top of ongoing travel restrictions that apply because of the COVID-19 pandemic. Trump issued an executive order that temporarily suspends the entry of Chinese F-1 and J-1 students if they have received funding from, worked for, or otherwise have had a connection with the Chinese goverment (or any Chinese agency that that implements or supports the PRC s military-civil fusion strategy. ). Undergraduate students are exempted. [link]

5/26/2020 - ITServe Settlement Leads to Repeal of Memo Covering Third-Party Worksites
USCIS has entered into a settlement agreement with ITServe, after a number of recent legal victories by ITServe plaintiffs. Many of these plaintiffs have successfully challenged USCIS denials of H-1B petitions based on the 2018 USCIS Memo entitled "Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites" (2018 Memo). USCIS will repeal the 2018 Memo by August 18, 2020. After USCIS repeals the memo, the agency should not deny petitions for failing to meeting the itinerary requirement established at 8 C.F.R. 214.2(h)(2)(i)(B), until USCIS issues a clarifying regulation on the matter. Our analysis of the settlement can be found here. [link]