May 2, 2023 Updates
USCIS Announces Results of FY 2024 H-1B Initial Registration Period
U.S. Citizenship and Immigration Services (USCIS) announced the results of the fiscal year (FY) 2024 H-1B initial registration period and expressed concerns about fraud. During the registration period for the FY 2024 H-1B cap, USCIS saw a significant increase in the number of registrations submitted compared to prior years. For FY 2024, total registrations were 780,884, with 110,791 registrations selected. For FY 2023, there were 483,927 total registrations, with 127,600 selected. The total number of H-1B visas that can be issued each year is 85,000.
USCIS said that a large number of eligible registrations for beneficiaries with multiple eligible registrations, which was much larger than in previous years, “has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. This may have unfairly increased their chances of selection.” USCIS said that each petitioner signs an attestation under penalty of perjury and that if the agency finds that the attestation was not true and correct, it may deny the petition or revoke the approval, and may refer the petitioner for investigation and law enforcement action. “Based on evidence from the FY 2023 and FY 2024 H-1B cap seasons, USCIS has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating law enforcement referrals for a criminal prosecution,” the agency said.
The American Immigration Lawyers Association (AILA) noted that an “eye-popping 408,891 registration applications were for individuals on whose behalf multiple employers submitted a registration, a 147% increase in multiple registrations from last fiscal year.” AILA President Jeremy McKinney said, “These numbers starkly highlight both how the H-1B system doesn’t meet legitimate demand, and how the registration system has been left vulnerable to exploitation.” AILA called for measures including ensuring that every available visa is used; promulgating a rule by USCIS and the Department of State to change how the H-1B lottery is run, basing it on individuals with bona fide job offers rather than registrations, and executing USCIS’s announced plan to thoroughly.
SOURCE: ABIL Immigration Insider, April 30, 2023; and https://www.dol.gov/agencies/eta/foreign-labor
April 2023 Monthly Review
OFLC: Form ETA-9089 Case Creation, Submission Available Soon in FLAG
The Department of Labor’s Office of Labor Certification (OFLC) announced on April 21, 2023, that it will begin accepting the revised Form ETA-9089, Application for Permanent Employment Certification, in the Foreign Labor Application Gateway (FLAG) system on May 16, 2023. Filers may begin creating and staging applications on April 24, 2023.
As a result of the transition to the revised version of the form and the transition to FLAG, OFLC will no longer accept any new applications submitted via the legacy PERM Online System after May 15, 2023, at 6:59 pm ET. OFLC also will no longer accept the previous version of Form ETA-9089 after May 15, 2023, either electronically or by mail. OFLC said it will make recordings of several webinars on this topic available shortly.
SOURCE: ABIL Immigration Insider, April 23, 2023; and https://www.dol.gov/agencies/eta/foreign-labor
USCIS Extends Temporary Suspension of Biometrics for Certain Form I-539 Applicants
U.S. Citizenship and Immigration Services (USCIS) announced on April 19, 2023, that it has extended through September 30, 2023, the temporary suspension of the biometrics submission requirement for certain applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, requesting an extension of stay in or change of status to H-4, L-2, or E nonimmigrant status. The previously announced suspension was in place until May 17, 2023.
USCIS said it will allow adjudications for the specified categories to proceed based on biographic information and related background checks, without capturing fingerprints and a photograph. However, the agency said it retains discretion, on a case-by-case basis, to require biometrics for any applicant.
Form I-539 applicants meeting the biometrics suspension criteria are not required to submit the $85 biometric services fee for Form I-539 during the suspension period. USCIS will return a biometric services fee if submitted separately from the base fee but will reject paper Form I-539 applications if the applicant meets the above criteria and submits a single payment covering both the filing fee and the $85 biometrics services fee.
USCIS said it plans to establish a permanent biometrics exemption for all Form I-539 applicants in the coming months.
SOURCE: ABIL Immigration Insider, April 23, 2023; and https://www.uscis.gov/newsroom/alerts/uscis-extends-temporary-suspension-of-biometrics-submission-for-certain-form-i-539-applicants
Office of Foreign Labor Certification (OFLC) Reconsiders Denials based on ETA-9089 Question H.10-B
The Department of Labor’s Office of Foreign Labor Certification (OFLC) posted an announcement on April 14, 2023, regarding recent permanent labor certification applications that were denied where the employer did not explicitly answer the question in field H.10-B of Form ETA-9089, Application for Permanent Employment Certification.
OFLC said it has “thoroughly reviewed” past and current permanent labor certification (PERM) applications with respect to how question H.10-B on the Form ETA-9089 has been completed. As a result of this review, OFLC concluded that some employers have not consistently answered the question accurately by providing acceptable alternate job titles. Rather, they include statements such as “see H.14 – Special Skills.” OFLC has recently denied such applications for being incomplete.
OFLC evaluated these denials and determined that while they are “appropriate,” it has stopped issuing denials for this issue for pending applications and “will not deny for this reason for any application submitted on or before May 30, 2023, by which point OFLC expects to be accepting the updated version of Form ETA-9089 in the Foreign Labor Application Gateway system. Further, OFLC will overturn denials based solely on this issue.”
OFLC said it recognizes that “as it transitions to the updated version of Form ETA-9089, which will incorporate Form ETA-9141 into PERM applications, there may be questions about whether employers should alter how they complete Form ETA-9141 as a result of this announcement. OFLC is considering that issue and will issue guidance in the near future if we determine that such guidance is necessary.”
SOURCE: ABIL Immigration Insider, April 16, 2022; and https://www.dol.gov/agencies/eta/foreign-labor
USCIS Removes 60-Day Rule for Civil Surgeon Signatures on Form I-693
U.S. Citizenship and Immigration Services (USCIS) announced on March 31, 2023, that it is removing the requirement that civil surgeons sign Form I-693, Report of Immigration Medical Examination and Vaccination Record, no more than 60 days before an individual applies for an underlying immigration benefit, including Form I-485, Application to Register Permanent Residence or Adjust Status. The requirement had been subject to a temporary waiver since December 9, 2021.
USCIS said that this policy update will allow it to adjudicate cases with immigration medical examinations that previously would have been considered invalid. Rather than issuing a Request for Evidence (RFE) in the case of a Form I-693 signed more than 60 days before the filing of the I-485, but otherwise valid, USCIS can now accept I-693s for adjudicative purposes for up to two years after the date the civil surgeon signed the form.
SOURCES: ABIL Immigration Insider, April 3, 2022; and https://www.uscis.gov/newsroom/alerts/uscis-removes-60-day-rule-for-civil-surgeon-signatures-on-form-i-693
Department of State to Raise Consular Fees
Effective May 30, 2023, a Department of State (DOS) final rule raises most consular service fees, although the fee increases are smaller than those proposed in the notice of proposed rulemaking due to revised projections for fiscal year (FY) 2022-2024 demand, DOS said.
Below are the adjustments that DOS will implement under the final rule:
· The application processing fee for non-petition-based nonimmigrant visas (NIVs) (except the E category) will increase from $160 to $185.
· The application processing fee for H, L, O, P, Q, and R category NIVs will increase from $190 to $205.
· The processing fee for Border Crossing Cards for Mexican citizens aged 15 and over will increase from $160 to $185.
· The fee for E-category NIVs will increase from $205 to $315.
· The fee for the exchange visitor waiver of the two-year residency requirement will stay at $120, instead of the proposed $510.
SOURCES: ABIL Immigration Insider, April 3, 2022; and https://www.govinfo.gov/content/pkg/FR-2023-03-28/pdf/2023-06290.pdf
USCIS Updates Policy on Timeframes for Paper-Based Filings/Responses
U.S. Citizenship and Immigration Services (USCIS) has updated policy guidance to address situations when the last day to file a benefit request or respond to a USCIS action falls on a Saturday, Sunday, or federal holiday. In these situations, effective immediately, USCIS will consider a filing or response submitted on paper timely if the agency receives it by the end of the next business day. While the receipt date for these cases will continue to reflect the date USCIS physically received the request, USCIS will consider the benefit request timely filed.
USCIS said it is pursuing several ways to increase flexibility related to filing deadlines, including this policy update. The update applies to all benefit requests or responses to a USCIS action that the agency receives on paper on or after March 29, 2023. The update does not affect electronic filings or responses submitted electronically, which USCIS considers received immediately upon submission. USCIS is not applying this policy retroactively.
SOURCES: ABIL Immigration Insider, April 3, 2022; and https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-on-time-frames-for-paper-based-filings-and-responses-ending-on-saturdays