Health Care Blog

The Department ofState has recently issued the December 2022 Visa Bulletin. This blog post analyzes this month’s Visa Bulletin.  The FY 2023 employment-based immigrant visa limit is 197,000, ascompared with 281,507 in FY 2022.  Thesequotas are greater than the usual 140,000 employment-based limit because ofspillovers of unused family-based immigrant visas in the prior fiscalyear.  Slowdowns related to COVID causedthe allocation of family-based visas to be short of the limit.

Visa Bulletin

Table A:  Final Action Dates — Applications withthese dates may be approved for their Green Card (Permanent Residency card) orImmigrant Visa appointment.

Table B: Dates of Filing

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

MU Law Analysis

As expected, there was a retrogression in India EB2 inthe coming months due to high demand.  Allcategories of EB-2 retrogression, which reflects a smaller allocation ofemployment based immigrant numbers than in the past two years. 

On the other hand, India EB-3 progressed two months,which was unexpected good news. 

The WW and Philippine EB-3 remaincurrent. We expect these categories to be current through much of the current fiscalyear. 

EB-3 Other Workers, which is the category for occupations suchas Nurse Aides, remains retrogressed but held steady to June 2020 forPhilippines and ROW.  We do not expectfurther retrogression in these two categories. We would not be surprised to see some progression in these categoriesthroughout this fiscal year.

China EB-3 advanced by six weeks, but a note at the end of theVisa Bulletin said that EB-1 China and India should expect a retrogression inthe in the coming months.

As of August 19, 2022, the US Department of Education nolonger recognizes the accreditation of institutions by the Accrediting Councilfor Independent Colleges and Schools (ACICS).

On November 1, 2022, the USCIS explained in a News Alert how this loss of recognition willaffect the following immigration-related student programs:

•  24-Month STEM OPT Extension Program
• USCISwill issue a denial to any F-1 student filing a Form I-765 STEM OPT extensionif:
• TheSTEM degree that is the basis for the STEM OPT extension was obtained from acollege or university that was accredited by ACICS; and
• Thestudent’s DSO recommendation for a STEM OPT extension, as indicated on FormI-20, is dated on or after August 19, 2022 (the date when ACICS ceased to berecognized as an accrediting agency).
• STEM-OPTstudents whose Forms I-20 have a DSO recommendation date prior to August 19,2022 are not affected.

• H-1B Master’s CAP Eligibility and I-140 AdvancedDegree/Professional Eligibility
• Students who obtain theirdegree after August 19, 2022 from an institution that is solelyaccredited by ACICS may NOT use that degree to qualify for the H-1B Master’sCAP or to qualify for an I-140 petition filed under the advanced degree andprofessional classifications.
• If astudent’s degree was conferred prior to August 19, 2022 from anACICS-accredited school, that degree may still be used to qualify for the H-1BMaster’s CAP or to qualify for an I-140 petition filed under the advanceddegree and professional classifications, as long as all other requirements aremet.

•  H-1B CAP Exemption/ACWIA Fee Exemption
• Aninstitution accredited solely by ACICS no longer qualifies for an exemptionfrom the H-1B cap or the ACWIA fee, unless the institution is exempt on anotherbasis.

 ACICS’s website provides a list of institutions currentlyaccredited by ACICS.

The Consular ElectronicApplication Center (CEAC) is the online platform where one submits fees, forms,and documents to the National Visa Center (NVC). In the last two months, MU hasobserved two primary malfunctions on CEAC. Please note, these malfunctions areseemingly random and do not affect every case.

The most prominent malfunctionprevents the payment of IV fee bills, causing delays for many cases. This malfunctioncauses CEAC to reject fee bill payments or causes payments to be “in process”for long periods of time.

MU has submittedinquiries to the NVC about the payment malfunction, requesting a solution. Inreply, the NVC stated it is working to correct the malfunction. The NVCprovided no estimate for when it would fix this malfunction.

The second malfunctionmislabels dependents as Follow-to-Join instead of Accompanying, and vice versa.This prevents the completion of case, even if fee bills have already been paid.

MU has submittedinquiries to the NVC about these and other malfunctions but has yet to receivea response. MU is working to resolve these issues through other contacts andhopes the NVC will act soon to move the cases forward.  If you have questions about your specificcase, please contact your MU attorney. 

The Department of State has recently issued the November 2022 Visa Bulletin. This blog post analyzes this month’s Visa Bulletin.

Visa Bulletin

Table A:  Final Action Dates — Applications withthese dates may be approved for their Green Card (Permanent Residency card) orImmigrant Visa appointment.

Table B: Dates of Filing

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

MU Law Analysis

All dates remained the same as in the October 2022 VisaBulletin.  USCIS has stated that theUSCIS expects retrogression in India EB2 in the coming months due tohigh demand.  It remains to be seen if IndiaEB-3 will also retrogress at some point.

The WW and Philippine EB-3 remaincurrent. We expect these categories to be current through the fiscal year.

EB-3 Other Workers, which is the category for occupationsthat require less than two years of education or experience to perform the job,remains retrogressed but did move forward from May 2019 to June 2020 forPhilippines and ROW.  We do not expectfurther retrogression in these two categories.

OnSeptember 28, 2022, U.S. Citizenship andImmigration Services (USCIS)issued a news alert, announcing,effective September 26, Lawful Permanent Residents who properly file Form-I-90to replace an expired or expiring green card will receive an automatic 24-monthextension, as opposed to the previous 12-month extension.

Receiptnotices for Form I-90 should now include updated language granting LawfulPermanent Residents the automatic 24-month extension. USCIS is in the processof printing amended receipt notices for those individuals with pending I-90s.

Toevidence their lawful status, Lawful Permanent Residents may present theupdated I-90 receipt notice with their expired green card. This will allowLawful Permanent Residents to continue working and traveling, despiteexperiencing long processing delays to replace their expired green card.

Ifan individual no longer has their Green Card, they will need additional evidenceof their lawful permanent resident status while waiting to receive areplacement green card.

In December 2021, USCIS announced that it would waive therequirement that the medical exam, Form I-693, be signed by the civil surgeonno more than 60 days prior to filing the I-485, Application to RegisterPermanent Residence or Adjust Status (green card application).  This waiver of the 60-day rule was set toexpire on September 30, 2022. USCIS just announced that this waiver has beenextended to March 31, 2023.

This extension will provideadditional flexibility to I-485 applicants and allow them to avoid having toundergo a second medical exam in many instances while still encouragingapplicants to file the I-485 as soon as possible after completing the medicalexam.

The I-693 medical exam willcontinue to remain valid for two years from the date of the civil surgeon’ssignature, regardless of when the I-485 is filed.

In the thirdphase of its initiativeto expand premium processing eligibility, on September 15, 2022, USCISissued a news alert that its premiumprocessing program will be expanded again to include additional pending I-140petitions filed under the EB-1 and EB-2 categories.

MU issued updateson the firstphase and secondphase of theinitiative earlier this year.

Beginning September15, 2022, USCIS will accept Form I-907 requests for:

·       EB-1 multinational executive and managerpetitions received on or before January 1, 2022; and

·       EB-2 NIW petitions received on or before February1, 2022.

New (initial)I-140 filings for the categories above are not eligible for premiumprocessing at this time.

USCIS has 45 daysto issue an RFE, approval, or denial on cases that request premium processingfor these newly included Form I-140 classifications. Per USCIS’s I-907 webpage, the fee for filing Form I-140requesting EB-1, EB-2, or EB-3 immigrant visa classification is $2,500.

USCIS will rejectany premium processing requests for the classifications above that are filedbefore the appropriate start date. 

The USCIS recently posted updated processesand procedures for green card cases filed during Fiscal Year 2023 (FY2023)which ends on September 30, 2023.  Belowis a short summary of the key issues regarding the coming fiscal year’s greencard cases.

The US Department of State estimates the annual allotment ofemployment-based green cards will be approximately 200,000 due to unusedfamily-based visa numbers from FY 2022 (ending September 30, 2022).  Please see our previousblog post for an explanation of the unused family-based numbers flowinginto the employment-based category.  Eachyear there are 140,000 green cards allocated for employment-based cases bystatute; the coming year’s allotment of 200,000 is a large increase inavailable green cards.

Q: If there is an increase in available green cards, why have theIndian EB2 numbers retrogressed in October 2022?

A: The DOS and USCIS estimate the annual usage of green cardsbased on the number of pending applications. When estimating how many green cards will be approved, the DOS and USCISconsider the following factors:

• A percentage of the pending applications will not be approvedfor a variety of reasons;
• An accounting for applicants who have more than one green cardapplication pending;
• An estimate of the number of dependents who will be included onthe   application; and
• How far along in the application process the pending cases are,e.g. how     likely it is to result in the use of a green card during the comingmonths.

Given these factors, the DOS and USCIS estimate the Indian EB2category is still oversubscribed and so applied a cut-off date.

Q: Does retrogression affect my priority date or place in linefor a green card?

A: No, retrogression does not impact or change your prioritydate or place in line.  Retrogressiononly means a green card is not immediately available to applicants in certaincategories. 

Q: My category retrogressed, what is my path forward to a greencard if I am in the US and have filed my I-485?

A: The USCIS will hold your pending I-485 until your prioritydate becomes current and a green card is available.  During the time your I-485 is pending withthe USCIS, even if your category is retrogressed, you can:

• Apply for a work authorization card also called an EAD;
• Apply for a travel authorization card also called Advance Paroleor AP;
• Once your I-485 has been pending with the USCIS for more than180 days, you can “port” your pending green card application to a new employerwho provides a qualified job offer; and
• Your dependent children may be eligible for benefits under theChild Status Protection Act (CSPA) (for more specific information abut the CSPAplease contact your MU attorney).

You are considered to be in a “period of authorized stay” whileyour I-485 is pending.

Q: I did not file my I-485 with a medical exam (form I-693),should I affirmatively send in a medical exam or wait until the USCIS issues anRFE (request for evidence) or deficiency notice asking for a medical exam?

A: The USCIS requests applicants not send in a medicalexam until the USCIS requests the medical exam via RFE or deficiencynotice.  Immigration files are oftentransferred between USCIS offices to process the cases as quickly as possible.  USCIS indicates it is difficult to match anunsolicited medical exam to a pending case.

Q: How does the transfer of underlying basis request work?

A: If an applicant has two or more approved I-140s, theapplicant can request that the USCIS move the pending I-485 from one I-140 toanother.  This request must be made inwriting and include a form I-485j where appropriate.  Applicants must affirmatively request atransfer of underlying basis; the USCIS does not review the applicant’s filesand transfer the I-485 automatically when an I-140 becomes current in adifferent category.  All transferrequests are reviewed and granted at the discretion of the USCIS.

Q: When the USCIS adjudicates the principal applicant’s I-485,does the USCIS also adjudicate the I-485 of the dependent family members?  What happens if a dependent family member’sI-485 is not approved and the priority date of principal retrogresses?

A: USCIS makes every effort to adjudicate all family members’cases together.  However, each case istreated independently and has unique factors of review.  If a principal applicant’s I-485 is approved,but a dependent applicant’s I-485 remains pending, and the priority date of theprincipal applicant retrogresses, the dependent’s I-485 will remain pendingwith the USCIS until the principal’s priority date becomes current again.

To celebrate being nominated asa finalist, MU was invited to an award ceremony this past Tuesday, September13, 2022, at TQL Stadium, home of FC Cincinnati Football Club. MU strives to bean enjoyable and diligent workplace and was very honored to receive thisrecognition. MU hopes to always be a great place to work for all its employees!

The Department of State has recentlyissued the October 2022 Visa Bulletin.  This blog postanalyzes this month’s Visa Bulletin.

Visa Bulletin

Table A:  Final Action Dates — Applications with these dates may beapproved for their Green Card (Permanent Residency card) or Immigrant Visaappointment.

Table B: Dates of Filing

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

MU Law Analysis

Therehave been reports that India EB1 and EB2 are now “unavailable” throughOctober 1, 2022.  However, there has beenno specific announcement from the DOS that visas are unavailable.  USCIS has stated (in court filings) that theUSCIS expects retrogression in India EB2 in the coming months due tohigh demand.

Oncevisas become unavailable on Chart A, USCIS will be unable to approve any moregreen card cases (I-485) in those specific categories.  All I-485s will remain pending until the applicablepriority date becomes current again on Chart A. However, while cases are retrogressed, those with a pending I-485 arestill eligible for AC21 portability and can renew their I-485-based EAD (workauthorization) and Advance Parole (travel authorization).

EB-3 Other Workers, which is thecategory for occupations that require less than two years of education orexperience to perform the job, remains retrogressed but did move forward fromMay 2019 to June 2020 for Philippines and ROW.