U.S. Immigration Updates– Week of February 27, 2023 & February 2023 Monthly Review

Weekly Updates

USCIS Issues Clarifying Guidance for Individuals Authorized to Work Under Special Student Relief Provisions

U.S. Citizenship and Immigration Services (USCIS) has released policy guidance to clarify the validity period of employment authorization for F-1 nonimmigrant students experiencing severe economic hardship due to emergent circumstances (also known as special student relief (SSR)) who are authorized to work under the SSR provisions. The guidance applies to all pending and future applications for SSR employment authorization as of February 22, 2023, the date the guidance was published.

The update clarifies that in cases of severe economic hardship due to emergent circumstances, USCIS may grant off-campus SSR employment authorization to an F-1 nonimmigrant student for the duration of the Federal Register notice validity period, which is typically 18 months. The employment authorization may not extend past the student’s academic program end date.

USCIS said that emergent circumstances are “events that affect F-1 nonimmigrant students from a particular region and create severe economic hardship. These events may include, but are not limited to, natural disasters, financial crises, and military conflicts.”

SOURCES: ABIL Immigration Insider, February 26, 2023; and https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230222-SpecialStudentRelief.pdf


DOS: F and M Student Visas Can Be Issued Up to a Year in Advance

The Department of State (DOS) announced that F and M student visas for new students now can be issued up to 365 days before the start date for a course of study. However, the student cannot enter the United States on a student visa more than 30 days before the start date.

F and M student visas for continuing students may be issued at any time, DOS said, as long as the student is currently enrolled at a Student and Exchange Visitor Program-approved school or institution and in the Student and Exchange Visitor Information System. Continuing students may enter the United States at any time before classes start.

SOURCES: ABIL Immigration Insider, February 26, 2023; and . https://travel.state.gov/content/travel/en/us-visas/study/student-visa.html


USCIS Requests Comments on Proposed Revision of Nonimmigrant Petition Based on a Blanket L Petition

U.S. Citizenship and Immigration Services (USCIS) seeks comments on a proposed revision of the nonimmigrant petition based on a blanket L intracompany transferee petition.

USCIS explained that employers seeking to classify employees outside the United States as executives, managers, or specialized knowledge professionals, as nonimmigrant intra-company transferees pursuant to a previously approved blanket petition, may file this form. USCIS uses the information provided through the form to assess whether the employee meets the requirements for L-1 classification under blanket L petition approval.

Comments are due by April 24, 2023. USCIS notice and request for comments, 88 Fed. Reg. 10531 (Feb. 21, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-21/pdf/2023-03528.pdf



March Visa Bulletin Includes Updates on Visa Availability in Coming Months

The Department of State’s Visa Bulletin for March 2023 includes updates on visa availability in various categories, including possible retrogressions in the coming months:

· Visa availability in the EB-2 preference category for all countries (including China and India): Higher than expected number use, mostly due to continued new filings by applicants from all countries with priority dates earlier than the established final action dates, will necessitate corrective action in the coming months to hold number use within the maximum allowed under the fiscal year 2023 annual limit.

· Visa availability in the EB-3 preference category: Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months.

· Further retrogression in the EB-4 preference category: The number of use and demand in this category have continued to increase, which necessitates further retrogression of final action dates and application filing dates.

· Retrogression of the EB-5 preference category final action date for India: For March, the final action date for the EB-5 Unreserved category for India is set at 01JUN18.

The bulletin also notes that the National Visa Center has provided totals of applicants

SOURCE: ABIL Immigration Insider, February 19, 2023; and https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-march-2023.html

E-Verify Recommends Timeframes to Resolve Certain Social Security Mismatches; Deadline is September 29, 2023

E-Verify notified employers on February 15, 2023, that it recommends that employees with E-Verify Social Security Administration (SSA) Tentative Nonconfirmation mismatch cases falling within certain timeframes visit their local SSA offices within preferred date ranges:

E-Verify said these timeframes are “recommended,” and that all affected employees must visit SSA to resolve their mismatch by September 29, 2023, or their cases will receive a Final Nonconfirmation.

SOURCE: ABIL Immigration Insider, February 19, 2023; and https://www.e-verify.gov/social-security-administration-resumes-e-verify-operations


FY 2024 H-1B Cap Registration Period Set

United States Citizenship and Immigration Services (USCIS) announced that the Fiscal Year 2024 H-1B Cap Registration period will open at Noon ET on March 1st and close at Noon ET on March 17th. Any employer interested in filing an H-1B petition on behalf of an employee or potential employee must do so during that period. Employers that are new to the H-1B Registration process will need to create a USCIS registration account. However, employers will not be able to create that account until Noon ET on February 21st. The registration fee is currently $10 for each employee registered.

SOURCE: National Law Review: //www.natlawreview.com/type-law/immigration


Department of State Plans Visa Renewal Program for H and L Workers

According to reports, the Department of State (DOS) plans to launch a pilot program later this year to allow visa renewals in the United States for H and L nonimmigrant workers who currently must leave the country to renew their visas at consular offices abroad. The program could expand eventually. Practitioners say such a policy, which was in place until 2004, would help to relieve backlogs and lengthy wait times abroad, and reduce the burden on consular offices and visa holders. The program is expected to benefit tens of thousands of foreign tech professionals in the United States on H-1B visas, among others.

The timeframe for the pilot program remains unclear. It appears that new regulations would not be required, but a new consular division in Washington, DC, would be needed. “That’s not a small endeavor,” said Julie Stufft, Deputy Assistant Secretary for Visa Services in the Bureau of Consular Affairs.

SOURCE: ABIL Immigration Insider, February 12, 2023; and https://news.bloomberglaw.com/daily-labor-report/state-department-plans-pilot-for-domestic-visa-renewal-this-year


USCIS Issues Documentation Reminder for Permanent Residence and Adjustment Applications

U.S. Citizenship and Immigration Services (USCIS) issued a reminder to applicants on February 10, 2023, to file all required initial evidence and supporting documentation listed under the Checklist of Required Initial Evidence heading when they file Form I-485, Application to Register Permanent Residence or Adjust Status. “Submitting all required initial evidence and supporting documentation at the same time [as] you file Form I-485 may eliminate the need for us to issue a Request for Evidence (RFE) to obtain additional evidence and documentation. This may also help avoid adjudication delays if we decide that you do not need to be interviewed,” USCIS said.

In particular, USCIS emphasized submitting Form I-693, Report of Medical Examination and Vaccination Record, when filing Form I-485. “We generally consider a completed Form I-693 to remain valid for two years after the date the civil surgeon signed Form I-693. Additionally, from Dec. 9, 2021, until March 31, 2023, we are temporarily waiving the requirement that the civil surgeon’s signature is dated no more than 60 days before you file your Form I-485,” the agency said.

USCIS published a new edition of Form I-485 (edition date 12/23/22) on December 23, 2022. Earlier versions will be rejected.

SOURCE: ABIL Immigration Insider, February 12, 2023; and https://www.uscis.gov/newsroom/alerts/reminder-to-submit-all-required-initial-evidence-and-supporting-documentation-including-form-i-693


Green Cards and Employment Authorization Documents Redesigned

U.S. Citizenship and Immigration Services (USCIS) announced on January 30, 2023, that it has begun issuing newly designed permanent resident cards (green cards) and employment authorization documents (EADs). Current cards remain valid until their expiration dates (unless otherwise noted, such as through an automatic extension of a green card or EAD as indicated on a Form I-797, Notice of Action, or in a Federal Register notice).

Security-related changes include “improved detailed artwork; tactile printing that is better integrated with the artwork; enhanced optically variable ink; highly secure holographic images on the front and back of the cards; a layer-reveal feature with a partial window on the back photo box; and data fields displayed in different places than on previous versions,” USCIS said.

USCIS noted that some green cards and EADs issued after January 30, 2023, may still display the existing design format because USCIS will continue using existing cardstock until current supplies are depleted. Both versions of the cards are acceptable for Form I-9, Employment Eligibility Verification; E-Verify; and Systematic Alien Verification for Entitlements (SAVE), USCIS said. Some older green cards do not have an expiration date. “These older Green Cards without an expiration date generally remain valid; however, USCIS encourages applicants with these older cards to consider applying for a replacement card to prevent fraud or tampering should the card ever get lost or stolen,” the agency said.

SOURCE: ABIL Immigration Insider, February 5, 2023; and https://www.uscis.gov/newsroom/news-releases/uscis-redesigns-green-card-and-employment-authorization-document


DOJ Raises Penalties Against Employers for Immigration-Related Violations

The Department of Justice (DOJ) issued a final rule adjusting for inflation of several immigration-related civil monetary penalties against employers assessed or enforced by DOJ components. Penalty ranges have been increased for the unlawful employment of immigrants, certain immigration-related paperwork violations, and unfair employment practices.

SOURCE: ABIL Immigration Insider, February 5, 2023; and https://www.govinfo.gov/content/pkg/FR-2023-01-30/pdf/2023-01704.pdf


New USCIS Data Show H-1B Denial Rates Remain Low

Following the Trump administration, when H-1B denial rates reached as high as 24%, employers now see denial rates, on average, of 2%, the lowest on record. Despite fewer denials, companies face the prospect of 80% of H-1B registrations failing to result in hiring a foreign-born employee due to the low annual limit on H-1B petitions.

The H-1B denial rate declined during the final year of the Trump administration after judges declared many of its H-1B-related actions unlawful. That forced a legal settlement and changes to restrictive immigration policies that resulted in the denial rate for new H-1B petitions for initial employment in FY 2021 dropping to 4%, far lower than the denial rate of 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020.

H-1B petitions for “continuing” employment are primarily for existing employees. The denial rate for H-1B petitions for “continuing” employment was 2% in FY 2022, far below the 12% denial rate in FY 2018 and FY 2019.

H-1B visas play a vital role in the U.S. immigration system—and the U.S. economy—because they are usually the only practical way to hire long-term international students or other high-skilled foreign nationals. At U.S. universities, international students account for 74% of the full-time graduate students in electrical engineering and 72% in computer and information sciences, and 50% to 70% in mathematics, materials sciences, and other technical fields.

Today, employment for people with computer-related skills goes far beyond well-known tech companies and includes nearly all businesses and organizations in America with a digital footprint. That is one reason the H-1B annual limit of 85,000 is so inadequate, equaling 0.05% of the U.S. labor force. Congress established the cap of 65,000 on new H-1B petitions before the spread of the World Wide Web, smartphones, e-commerce, social media, electric vehicles, and numerous other innovations that have fueled the demand for people with technical skills. Increasing output by growing the labor supply would reduce inflationary pressure and improve the U.S. standard of living, according to economists.

SOURCE: Stuart Anderson, Forbes, February 7, 2023: https://www.forbes.com/sites/stuartanderson/2023/02/07/new-uscis-data-show-h-1b-denial-rates-remain-low/?sh=1b34b04138c7

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