U.S. Immigration Updates – Week of January 30, 2023

FY 2024 H-1B Cap Registration Opens March 1

U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for the fiscal year (FY) 2024 H-1B cap will open at noon ET on March 1, 2023 and run through noon ET on March 17, 2023.

Prospective H-1B cap-subject petitioners or their representatives must use a myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration. Prospective petitioners submitting their own registrations (U.S. employers and U.S. agents, collectively known as “registrants”) will use a “registrant” account. Registrants can create new accounts beginning at noon ET on February 21, 2023. Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 1 to enter beneficiary information and submit the registration with the $10 fee, USCIS said. Prospective petitioners or their representatives can submit registrations for multiple beneficiaries in a single online session.

USCIS noted that the U.S. Department of the Treasury has approved a temporary increase in the daily credit card transaction limit from $24,999.99 to $39,999.99 per day for the FY 2024 H-1B cap season. “This temporary increase is in response to the volume of previous H-1B registrations that exceeded the daily credit card limit,” USCIS explained.

USCIS said it plans to notify account holders by March 31.

For FY 2023, USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations projected as needed to reach the FY 2023 numerical allocations. For FY 2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations. USCIS conducted a second selection in July 2021 of an additional 27,717 registrations due to low filing volume from the initial selection. USCIS also conducted a third selection in November 2021 of an additional 16,753 registrations. This resulted in a total of 131,970 selected registrations for FY 2022. Many people think the number of initial registrants will be higher this year.

SOURCES: ABIL Immigration Insider, January 29, 2023; and https://rb.gy/tzicqo


USCIS Extends COVID-19 Related Flexibilities Through March 23, 2023

U.S. Citizenship and Immigration Services (USCIS) is extending certain COVID-19-related flexibilities through March 23, 2023. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date for the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and March 23, 2023:

· Requests for Evidence

· Continuations to Request Evidence (N-14)

· Notices of Intent to Deny

· Notices of Intent to Revoke

· Notices of Intent to Rescind

· Notices of Intent to Terminate regional centers

· Notices of Intent to Withdraw Temporary Protected Status

· Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

In addition, USCIS said it will consider Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

· The form was filed up to 90 calendar days from the issuance of a decision USCIS made; and

· USCIS made that decision between November 1, 2021, and March 23, 2023, inclusive.

USCIS said it “anticipates that, barring changes presented by the pandemic, this will be the final extension of these accommodations, and requesters must comply with the response requirements set forth in any request or notice dated after March 23, 2023.”

The reproduced signature flexibility announced in March 2020 became permanent policy on July 25, 2022.

SOURCES: ABIL Immigration Insider, January 29, 2023; and https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities-1


New Settlement Agreement Helps H-4 and L-2 Dependent Spouses

The Department of Homeland Security (DHS) reached a settlement agreement in Edakunni v. Mayorkas that is good news for H-4 and L-2 dependent spouses. Effective January 25, 2023, U.S. Citizenship and Immigration Services (USCIS) has returned to a pre-Trump administration policy of adjudicating Form I-539, Application to Extend/Change Nonimmigrant Status and Form I-765, Application for Employment Authorization for H-4 and L-2 derivatives, along with the underlying Form I-129, Petition for Nonimmigrant Worker, when these forms are filed concurrently.

This applies in cases filed using standard or premium processing. If these forms are filed separately, USCIS will not bundle the adjudication of the forms.

SOURCES: ABIL Immigration Insider, January 29, 2023; and https://www.forbes.com/sites/stuartanderson/2023/01/21/uscis-settles-lawsuit-that-should-help-h-1b-and-l-1-visa-spouses/?sh=75dfd209216a


Green Card Validity Extended for Conditional Permanent Residents with Pending I-751 or I-829

U.S. Citizenship and Immigration Services (USCIS) is extending the validity of Permanent Resident Cards (green cards) for petitioners who properly file Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, for four years beyond the card’s expiration date. This change started on January 11, 2023, for Form I-829 and on January 25, 2023, for Form I-751. Previously, these forms were valid for two years.

USCIS said it is making this change “to accommodate current processing times for Form I-751 and Form I-829, which have increased over the past year.” USCIS has updated the language on Form I-751 and Form I-829 receipt notices to extend the validity of a green card for 48 months for individuals with a newly filed Form I-751 or Form I-829. The agency said it will issue new receipt notices to eligible conditional permanent residents who previously received notices with an extension shorter than 48 months and whose cases are still pending. These receipt notices can be presented with an expired green card as evidence of continued status while the case remains pending with USCIS, the agency said: “By presenting your updated receipt notice with your expired Green Card, you remain authorized to work and travel for 48 months from the expiration date on the front of your expired Green Card.”

SOURCES: ABIL Immigration Insider, January 29, 2023; and https://www.uscis.gov/newsroom/alerts/uscis-extends-green-card-validity-for-conditional-permanent-residents-with-a-pending-form-i-751-or


January 2023 – Monthly Review

DOS Releases February 2023 Visa Bulletin with Certain Retrogressions

The Department of State’s Visa Bulletin for February 2023 includes the following information about retrogressions in the worldwide final action and application filing dates in the employment third preference “Other Workers” category:

· Higher than expected number use in the Employment Third Preference “Other Workers” (EW) category, most notably amongst applicants with earlier priority dates, has necessitated further retrogressions in the worldwide final action date and application filing date for February 2023 to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. Except for China and India, all countries are subject to a final action date of 01JAN20 and an application filing date of 01FEB20. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

· The bulletin also notes the availability of the Certain Religious Workers category. The Consolidated Appropriations Act, 2023, enacted on December 29, 2022, extended the Employment Fourth Preference Certain Religious Workers (SR) category until September 30, 2023. As indicated in item E of the January 2023 Visa Bulletin, the extension resulted in this category immediately becoming available, subject to the same final action dates as the other Employment Fourth Preference categories per applicable foreign state of chargeability.

SOURCE: ABIL Immigration Insider, January 21, 2023, and: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-february-2023.html


USCIS to Expand Premium Processing for EB-1 and EB-2 petitions and for Certain Students and Exchange Visitors

U.S. Citizenship and Immigration Services (USCIS) announced on January 12, 2023, that it is implementing the final phase of the Premium Processing expansion for Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications.

Also, in March, USCIS will expand Premium Processing to certain F-1 students seeking Optional Practical Training (OPT) and F-1 students seeking STEM OPT extensions who have a pending Form I-765, Application for Employment Authorization. In April, USCIS will expand premium processing to F-1 students seeking OPT and F-1 students seeking STEM OPT extensions who are filing an initial Form I-765.

Petitioners who wish to request Premium Processing must file Form I-907, Request for Premium Processing Service. Beginning January 30, 2023, USCIS will accept Form I-907 requests for:

· All pending E13 multinational executive and manager petitions and E21 National Interest Waiver (NIW) petitions; and

· All initial E13 multinational executive and manager petitions and E21 NIW petitions.

USCIS said it will announce specific dates for each F-1 student group in February. USCIS anticipates expanding Premium Processing in May for certain student and exchange visitors with pending Form I-539 applications to extend or change nonimmigrant status, and in June for certain student and exchange visitors who are filing initial Form I-539 applications.

SOURCE: ABIL Immigration Insider, January 15, 2023, and https://www.uscis.gov/newsroom/alerts/uscis-announces-final-phase-of-premium-processing-expansion-for-eb-1-and-eb-2-form-i-140-petitions


U.S. Supreme Court Decline to Resurrect Public Charge Rule

After the Trump administration’s 2019 public charge rule was invalidated nationwide following a court battle and the Biden administration’s dropping of its defense of the rule, Texas and 13 other states attempted to intervene and bring back the rule through litigation. The Biden administration also issued a new public charge rule, which those states challenged. On January 10, 2023, the Supreme Court declined to review the case, Cook County, Illinois v. Mayorkas.

Texas filed a new lawsuit on January 5, 2023, once again challenging invalidation of the 2019 rule and the Biden administration’s new rule, so it appears that the legal battles are not over.

SOURCE: ABIL Immigration Insider, January 15, 2023, and https://www.icirr.org/News/Trump-era-public-charge-lawsuit-comes-to-an-end


Department of Homeland Security Makes Corrections to Proposed Fee Rule

The Department of Homeland Security (DHS) published two corrections to its proposed rule to raise fees for certain immigration and naturalization benefit requests. For Form I-129CW and I-129, Petition for a CNMI Nonimmigrant Worker (with biometric services fee), the proposed fee is

$1,015 (rather than $1,055). For Form I-765, Application for Employment Authorization – Online (with biometric services), the proposed fee is $555 (rather than $650).

DHS explained that the typographical errors were corrected in the advance copy posted for public inspection, but that printing was too far along to correct them in the official publication in the Federal Register on January 4, 2023.

SOURCE: ABIL Immigration Insider, January 15, 2023, and https://www.govinfo.gov/content/pkg/FR-2023-01-09/pdf/2023-00274.pdf


USCIS Publishes Proposed Rule to Raise Fees

U.S. Citizenship and Immigration Services (USCIS) published a proposed rule on January 4, 2023, to raise fees. The Department of Homeland Security (DHS) also proposes to fund the asylum program with a controversial new Asylum Program Fee of $600 to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker. DHS said it has determined “that the Asylum Program Fee is an effective way to shift some costs to requests that are generally submitted by petitioners who have more ability to pay, as opposed to shifting those costs to all other fee payers.” This new $600 fee would be in addition to processing fees for those petitions.

USCIS said it “cannot maintain adequate service levels with the effects of the budget cuts and its current level of spending without lasting impacts on operations.” The proposed rule states that if USCIS fees are not adjusted, “USCIS processing times and backlogs will not improve.”

The proposed changes include, among others, incorporating biometrics costs into the main benefit fee and removing the separate biometrics fee; requiring separate filing fees for Form I-485, Application to Register Permanent Residence or Adjust Status, and associated Form I-131, Application for Travel Document (advance parole), and Form I-765, Application for Employment Authorization; establishing separate fees for Form I-129 by nonimmigrant classification; revising the premium processing timeframe interpretation from calendar days to business days; and creating lower fees for forms filed online.

The proposed fee hikes include, among others:

· Application for Employment Authorization – Online, from current $410 to new $555

· Application for Employment Authorization – Paper, from current $410 to new $650

· Application for Employment Authorization – Online and Paper (with biometric services), from current $495 to new $650

· H-1B Pre-Registration Fee, from current $10 to proposed $215

· I-129 Petition for a Nonimmigrant Worker: H-1 Classifications, from current $460 to proposed $780

· I-129 Petition for L Nonimmigrant Worker, from current $460 to proposed $1,385

· I-129 Petition for O Nonimmigrant Worker, from current $460 to proposed $1,055

· I-140 Immigrant Petition for Alien Worker, from current $700 to proposed $715

Comments on the proposed rule are due by March 6, 2023. USCIS will hold a public engagement session on January 11, 2023, from 2 to 3:30 p.m. ET. For more information or to register, see https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-virtual-listening-session-on-proposed-rule-to-adjust-certain-immigration-fees.

SOURCE: ABIL Immigration Insider, January 8, 2023; and https://www.govinfo.gov/content/pkg/FR-2023-01-04/pdf/2022-27066.pdf


DHS Proposes Regulatory Changes to H-1B and Adjustment of Status Applications

The Department of Homeland Security is proposing regulatory changes to adjustment of status (AOS) procedures as well as to the H-1B. DHS proposes to amend its regulations in order to improve the efficiency in the processing of the Application to Register Permanent Residence or Adjust Status (Form I-485), reduce processing times, improve the quality of inventory data provided to partner agencies, reduce the potential for visa retrogression, and promote the efficient use of immediately available immigrant visas to include the expansion of concurrent filing to the employment-based fourth preference (certain special immigrants) category, including religious workers.

DHS is also proposing to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. Specifically, DHS proposes to revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.

SOURCES: Stuart Anderson, Forbes, January 3, 2023: https://www.forbes.com/sites/stuartanderson/2023/01/03/the-outlook-on-h-1b-visas-and-immigration-in-2023/?sh=4a6415d16980; AOS proposal: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=1615-AC22; H-1B proposal: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=1615-AC70


CDC Announces New COVID-19 Testing Requirement for Air Passengers from China

Effective January 5, 2023, the Centers for Disease Control and Prevention (CDC) will require a pre-departure negative COVID-19 test, or documentation of recovery within the last 90 days, for air passengers boarding flights to the United States originating from the People’s Republic of China (PRC) and the Special Administrative Regions of Hong Kong and Macau.

CDC said it is announcing this step “to slow the spread of COVID-19 in the United States during the surge in COVID-19 cases in the PRC given the lack of adequate and transparent epidemiological and viral genomic sequence data being reported from the PRC. These data are critical to monitor the case surge effectively and decrease the chance for entry of a novel variant of concern. CDC will continue to monitor the situation and adjust our approach, as necessary.”

CDC made the decision following China’s announcement that it is dropping quarantine requirements for inbound international arrivals and resuming outbound travel for Chinese citizens. According to reports, a regional health chief in Hong Kong said that almost half of air passengers arriving on December 26, 2022, in Italy’s Milan airport from China tested positive for COVID-19. Although some countries in addition to the United States have imposed restrictions, such as Japan, Spain, and Italy, so far others are not changing their entry requirements, such as France and Great Britain, although the latter is reportedly considering the issue. India imposed similar restrictions on travelers from Japan, South Korea, and Thailand, in addition to China.

SOURCE: ABIL Immigration Insider, December 31, 2022, and https://www.cdc.gov/media/releases/2022/p1228-COVID-china.html

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