Healthcare Blog

To obtain an I-140 approval, the sponsoring employermust be able to demonstrate that the employer has the ability to pay therequired wage to the sponsored employee. 

The USCIS updated its policymanual,regarding ability to pay, on March 15, 2023. In order to establish the abilityto pay for a green card case, the employer/sponsor must include one of thefollowing:

(1) employer’s annual report,

(2) employer’s federal taxreturns, or

(3) employer’s audited financialstatement, with the I-140 filing.

However, if the employer has more than 100 workers,a financial officer statement can be included in lieu of one of these threedocuments.  The USCIS may acceptthe financial officer’s statement. 

If a financial officer statement is included, thestatement should detail the employer’s finances and ability to pay based onhaving 100+ employees. Examples of financial officer statements USCIS will NOT accept can be found in thepolicy manual as well.

In addition to the required ability to pay evidence,USCIS will consider all evidence relevant to the employer’s financial strengththat is submitted with the I-140 petition. USCIS may even request additionalevidence of ability to pay from an employer. Examples of additional evidenceare: employer’s bank account statements, personnel records, income and assetsof others, credit limits, bank lines and lines of credit.

Continuingits initiative to expand premium processingeligibility, on March 6, 2023, USCIS issued a News Release  that its premium processing program will beexpanded again to include applications for OPT and STEM OPT applications.

Pending OPT and STEM OPT Applications

Beginning March 6, 2023, USCIS willaccept Form I-907 (filed via paper or online) requests to upgrade to premium processingfor pending EAD applications under the following categories:

·        (c)(3)(A) – Pre-Completion OPT;

·        (c)(3)(B) – Post-Completion OPT; and

·        (c)(3)(C) – 24-Month Extension of OPT forSTEM students.

The Form I-907 filing fee for theseclassifications is $1,500.

USCIS has 30 calendar days to issue anRFE, approval, or denial on premium processing upgrade requests under theseclassifications.

Initial OPT and STEM OPT Applications

BeginningApril 3, 2023, USCIS will accept premium processing requests (filed via paperor online) for applications in the categories above when filed together withinitial OPT and STEM OPT applications.

TheDepartment of State has updated its webpage on Student Visas toreflect that it will now issue new students their F or M visas up to 365 daysin advance of the start date for a course of study as listed on the I-20.

However, studentsmay not enter the United States on the issued student visa more than 30 daysbefore their program start date.

Previously,visa interviews could be scheduled only up to 120 days before the program startdate.

TheUSCIS’s annual H-1BCap lottery registration window is now open and will close on Friday, March17, 2023 at noon Eastern. All entries into the Fiscal Year 2024 lottery must besubmitted by noon to be considered timely registered and eligible forselection.

MusilloUnkenholt encourages registering all candidates as soon as possible to avoidany technical issues or delays.

Ifan employer has candidates they would like to enter into the lottery, theemployer should reach out to their Musillo Unkenholt attorney as soon aspossible.

TheUSCIS intends to notify registrants selected in the first round of the lotteryby March 31, 2023. The USCIS may conduct multiple rounds of selection until itreaches the 85,000 H-1B quota, although they did not last year.

On February 14, 2023 USCIS updated its policy on the CSPA age calculationfor certain adjustment of status application. USCIS will now use the Department of State’s Visa Bulletin “DatesFor Filing” chart to determine both the “CSPA age” of an adjustment applicantand the start date of the 1-year period during which a noncitizen must seek toacquire lawful permanent residence to preserve their green card case from agingout.  This policy change is effective immediately andapplies to pending adjustment of status applications adjudicated on or afterFeb. 14, 2023.

This USCIS policy update affects casesof noncitizens who were near the age of 21 when they started their green card processin a preference category, but their respective visas only became availableafter they reached age 21 or older.

Under the previous guidance, USCISonly considered a visa immediately available for CSPA purposes when the immigrant petitionpriority date became current under the “Final Action Dates chart” of theDepartment of State’s Visa bulletin. Now, under the new policy, USCIS will consider the “Dates of Filingchart” in the Visa Bulletin to accept an adjustment of status application and tocalculate the CSPA age. 

More information on the new USCIS policy on the Child StatusProtection Act (CSPA) Age Calculation for Certain Adjustment of StatusApplicants is available at the USCIS Policy Alert (PDF, 345 KB) and on the USCIS Child Status Protection Act page.  The USCIS newsalert on this topic can be found here.

The Department of Statehas recently issued the March 2023 Visa Bulletin.  This blogpost analyzes this month's Visa Bulletin. 

Visa Bulletin

Table A:  Final Action Dates -- Applications with thesedates may be approved for their Green Card (Permanent Residency card) orImmigrant Visa appointment.

Table B: Dates of Filing

The USCIS is using theTable B Dates of Filing chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

Thiswas an uneventful Visa Bulletin.  Alldates remain the same as in the February Visa Bulletin.

Havingsaid this, the Visa Bulletin included a foreboding Note,

E.  VISA AVAILABILITY IN THE EMPLOYMENT-BASED THIRD(EB-3) PREFERENCE CATEGORY

Increaseddemand in the Employment Third category may necessitate the establishment of aworldwide final action date (including Mexico and Philippines) in the comingmonths to hold number use within the maximum allowed under the Fiscal Year 2023annual limit. This situation will be continually monitored, and any necessaryadjustments will be made accordingly.

Thismeans that retrogression is coming for all EB-3 categories, including thePhilippines and Worldwide.

Aswe have mentioned in our last few blogs, the FY 2023 employment-based immigrantvisa limit is 197,000, as compared with 281,507 in FY 2022.  These quotas are greater than the usual140,000 employment-based limit because of spillovers of unused family-basedimmigrant visas in the prior fiscal year. Slowdowns related to COVID caused theallocation of family-based visas to be short of the limit.    It is expected that theemployment-based quota will return to 140,000 in FY 2024, which starts October1, 2023.

MU Law will behosting a FREE webinar for our clients and friends on Tuesday,February 7, 2023 at 2PM Eastern (1PM Central).

Join us for this FREEwebinar to learn more about:

• H-1B Cap Basics, RegistrationProcess, and Projections
• What is a Specialty Occupation?
• H-1B Dependency
• Special Issues for StaffingCompanies, Third Party Placements
• Employer-Employee relationships,end-client documentation
• Cap-gap for F-1s as well as CPT/OPTmaintenance
• Alternatives to an H-1B
• Top 10 things H-1B employers can doto stay compliant

PLEASE JOIN US!

As of January 25,2023, The U.S. Citizenship and Immigration Services (USCIS) has reverted to itsoriginal practice of bundling the adjudication of  Form I-539, Application to Extend/ChangeNonimmigrant Status, and Form I-765, Application for Employment Authorizationfor H-4 and L-2 Derivatives when accompanied by the Principal Beneficiary’sproperly filed Form I-129, Petition for a Nonimmigrant Worker.

As a result, adependent’s filing will be processed within the same timeframe as the PrincipalBeneficiary’s properly and concurrently filed Form I-129, regardless of whetherthe forms are filed under standard or premium processing. The policy will remainin place for at least two years. 

The welcomed changein policy is due to the settlement agreement reached by the USCIS and spousesof H-1B and L-1 Visa Holders in the Lawsuit, Edakunni v. Mayorkas. Priorto this change, spouses of H-1B and L-1 Visa holders experienced lengthyprocessing times in the adjudication of Form I-539, Application toExtend/Change Nonimmigrant Status and Form I-765, Application for EmploymentAuthorization due to the “decoupling” of these forms from the Principal’s H-1Bor L-1 application. These lengthy processing times often led to delays in obtainingproper status and employment authorization documents. 

The USCIS isexpected to make an announcement addressing the settlement agreement soon. Ouroffice will be monitoring any further developments and provide updates.

U.S. Citizenship and ImmigrationServices (USCIS) announced the registration period for FY 2024 H-1B Cap willopen on Wednesday, March 1, 2023, at noon Eastern and will end on Friday, March17, 2023, at noon Eastern. USCIS intends to notify selected registrants byMarch 31, 2023.

During the registration window, employersmust register prospective H-1B beneficiaries online for the beneficiaries to beconsidered in the selection process. Registration requires minimal biographicalinformation about each beneficiary and whether the beneficiary is eligible forthe U.S. advanced degree cap.

Employers new to the H-1B Capelectronic registration process can create an H-1B Registrant account on myUSCISbeginning at noon Eastern on February 21. Employers who have an account forprevious H-1B Cap electronic registration periods may use their existingaccount for the upcoming registration period. Each beneficiary registered willincur a nominal $10 fee due to USCIS.

Under U.S. immigration law, USCIS mustselect 65,000 H-1B workers for the regular cap and 20,000 H-1B workers for theadvanced degree exemption (the master’s cap).

MU Law will be hosting a FREE webinar all about the H-1B Cap forour clients and friends on Tuesday, February 7, 2023, at 2PM Eastern. Learnmore here.