Healthcare Blog

OnJanuary 05, 2024, the USCIS updatedits policy manual to clarify how the UCSIS will determine an employer’s abilityto pay when an employment-based green card applicant ports to a new employerunder the American Competitiveness in the Twenty-First Century Act of 2000(AC21).

TheAC21 allows certain employment-based green card applicants to port, or changeemployers, without filing a new Form I-140 petition. Under certaincircumstances an employment-based green card applicant can change employers whentheir Form I-140 petition and Form I-485 application are concurrently filed andremain pending.

TheUSCIS has explained that when a green-card applicant changes employers whileForm I-140 is pending, USCIS will only consider the facts existing at the timeof filing when making an ability to pay determination. In other words, USCISwill only review initial evidence submitted with the Form I-140 petition (andany responses to Requests for Evidence) to determine if the petitioner hasestablished its ability to pay from the priority date to the date of filing theI-140 petition.

On December 20, 2023, USCIS publisheda Policy Alert,announcing changes to its Policy Manual, specifically the guidance for F and Mnonimmigrant students.  

The guidance clarifies that a studentdoes not violate his or her nonimmigrant status by simply having a green cardapplication pending with USCIS. A student in F and M status, upon entry to theUS, is required to demonstrate that he or she has aforeign residence and plans to leave the US after finishing his or her studies.However, a student’s intent can change afterarrival in the US. At the time the student enters in F or M status, a studentcan intend to leave the US at the completion of his or her schooling and thencan later change his or her intent and decide to apply for a green card in theUS.

Theguidance also announced several additional cosmetic changes to the Policy Manual, including a few new chaptersand transferring of section information.

USCIShas announced that they have received sufficient H-1b cap petitions toreach the statutory limit of 65,000 H-1b regular cap visas and the 20,000 H-1b advanceddegree visas for fiscal year 2024.

Since the H-1b cap limit has been hitfor the 2024 fiscal year, there will be no further selections in the H-1blottery for this fiscal year.

All registrants who were not selectedhave been sent notices through their online USCIS accounts to inform them thatthey have not been selected. The non-selection notice will update theregistration entry to state:

“NotSelected: Not selected – not eligible to file an H-1B cap petition based onthis registration.” “

All currently pending H-1b cappetitions will continue to be processed normally. USCIS will also continue toaccept all cap-exempt H-1bs petitions, such as:

1. Extensions and amendments topreviously approved H-1bs;
2. H-1b transfers for a change insponsoring employers;
3. H-1b concurrent petitions to allow anH-1b Beneficiary to work for multiple employers; and,
4. H-1b petitions filed by cap-exemptorganizations (Institutions of higher education and affiliated non-profitorganizations as well as non-profit or governmental research organizations).

The H-1b lottery will open forregistrations for the US government’s 2025 fiscal year in March of 2024.

TheDepartment of State has just issued the January2024 Visa Bulletin, which is the third of the 2024 US fiscal year. This blog post analyzes this month's Visa Bulletin. 

VisaBulletin

TableA: Final Action Dates-- Applications with these dates may be approved for their Green Card(Permanent Residency card) or Immigrant Visa appointment.

TableB: Dates of Filing

TheUSCIS is expected to use the Table B Dates of Filing chart for I-485employment-based filings. See: USCISVisa Bulletin Dates

MULaw Analysis

Thiswas a very positive Visa Bulletin.  Nearlyevery category advanced.  Philippineand All Other EB-3 leaped forward eight months, allowing thousands toobtain green cards.  China EB-3advanced seven months.  Even IndiaEB-3 moved forward by one month. 

Similaradvancements happened in EB-2, with India and China EB-2 (each twomonths), and Philippine and All Other EB-2 (three and a half months) allprogressing.  We even saw EB-1advancements in India and China.  IndiaEB-1 jumped three and a half years, and China moved ahead by four and a halfmonths.

MUexpected advancements.  We expect slowprogress in the near future, with occasional bursts like in this January VisaBulletin.  We still believe that there issome slack in the EB-3 numbers (non-India and China) and would not be surprisedto see the EB-3 dates advance into late 2022 or even 2023 before the end of thesummer.

The Department of Statehas just issued the December 2023 Visa Bulletin,which is the third of the 2024 US fiscal year. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A:Final Action Dates -- Applications with these dates may be approved for theirGreen Card (Permanent Residency card) or Immigrant Visa appointment.

Table B: Dates of Filing

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

MU Law Analysis

Thiswas an uneventful Visa Bulletin.   EB-2and EB-3 Final Action Dates for China each advanced three weeks to October 22,2019 (EB-2) and January 22, 2020 (EB-3). The Final Action Dates for allremaining employment-based categories remain as they were in November.

Aswe said last month, MU Law believes that the State Department is actingconservatively, which while frustrating, may prove to ratchet down the anxietyaround the monthly chart, and provide a better measure of processing times forthose involved. While no one likes a nearly two-year EB-3 retrogression fornon-India and China, it may prove to be a stable set of dates.  We do expect these categories to slowlyprogress throughout the fiscal year pushing into 2022, and perhaps even into2023.

USSenate Majority Whip Dick Durbin (D-IL) and US Senator Kevin Cramer (R-ND)introduced a bill, known as the HealthcareWorkforce Resilience Act, on November 2, 2023, to address the nation’s shortageof physicians and nurses.

Ifpassed, this bill will recapture 25,000 unused immigrant visa for nurses and15,000 unused immigrant visas for physicians, from previous years. Thesevisas would not be subject to the per country numerical limit that hasled to lengthy waits for green cards for nurses and physicians from severalcountries.

Spousesand children that are accompanying or following to join these nurses andphysicians, would be eligible for immigrant visas as part of this bill too. Thespouses and children’s visas would not be considered as part ofthe 25,000 and 15,000 allocated visas for the nurses and physicians.

Thenurse and physician cases would be required to be adjudicated by USCIS under USCIS’spremium processing program. There will be no additional fee for the premiumprocessing.

The Visa Bulletin is a vital tool for anyapplicant who is qualified to receive an immigrant visa (green card) becausethe Visa Bulletin notifies applicants as to whether they are eligible toreceive a visa number in a particular month.

Here are the top 10 things one needs to knowto understand the Visa Bulletin:

1. The employment-based (EB) visa has its ownsection on the Visa Bulletin where it is divided into its 5 preferencecategories. Every EB visa applicant falls into 1 of the 5 preferencecategories.

2. There are four markings on the EB visa chartto know:

a.    C: The category iscurrent, and every eligible applicant is eligible for a visa number.

b.    Final Action Date (FAD): Only those with priority dates before theFAD will be approved and issued an immigrant visa or green card.

c.    Dates of Filing (DOF): Those with priority dates before the DOF maybe able to file their I-485 or submit their civil documents to the NVC inpreparation for becoming current on the FAD.

d.    U: The category isunavailable, and no applicants may receive a number.

3. No country mayreceive more than 7% of the annual worldwide visas available.

4. Some countries have their own FAD because theyare in danger of going over the 7% limit.

5. Retrogression is when a FAD moves backwards chronologicallyon the next month’s Visa Bulletin, making less visa numbers available for aspecific category in the coming month.

6. The EB visa and its preference categories allhave annual caps that cannot be exceeded. 

7. The Department of State (DOS) cannot allocatemore than 27% of the total EB visa numbers available for the entire year in onequarter of the year. There is also a 10% limit on each month.

e.    EXAMPLE:There are 140,000 EB visa numbers for the year, then 14,000 may be given out ina month and 37,800 may be given out in a quarter.

8. The 7% per country limit may be set aside ifdemand for an EB preference category is less than the visa numbers availablefor that quarter. This only lasts until the end of the quarter.

9. If an EB preference category has a “C” markingfor every country, then that is an indication that the DOS is issuing visanumbers regardless of an applicant’s country for that quarter.

10. If the DOS runs out of a category before theend of the year, then the DOS will stop honoring requests for visanumbers. The category will become unavailable on the Visa Bulletin until thenext government fiscal year begins. 

OnOctober 20, 2023, USCIS announced that it would propose newrules for the H-1B program. The proposed new rules are detailed in the Federal Register published on October 23,2023.

Whilemany of the proposed changes clarify or codify current adjudicative trends,other changes impose new restrictions on H-1B eligibility.

Clarificationsand Codifications

• Deferenceto Previous USCIS Decisions

Theproposed rule codifies that USCIS officers should defer to prior approvals whenno underlying facts have changed at time of a new filing.

• AmendedH-1B Petitions

Currently,practitioners must judge when to file amended petitions based on archived USCISpolicy guidance and DOL guidance and regulation. The proposed new rule willclarify that an amended or new petition must be filed pursuant to any change inwork location that requires a new LCA.

• RelaxedRequirements for CAP-exemptions

The newrules would require that nonprofit and governmental research organizationsmerely conduct research as a fundamental activity, which is alooser interpretation that the previous requirement that these entities be primarilyengaged in research.

Additionally,the new rules would allow beneficiaries to qualify for H–1B cap exemption whenthey are not directly employed by a qualifying organization, but still provideessential work, even if their duties do not necessarily directly further theorganization's essential purpose.

• Extensionof the CAP-gap period

Currently,the CAP-gap is an automatic extension of status for F-1 students whose F-1validity period is set to expire before H-1B petitions go into effect onOctober 1. This poses a particular problem for H-1B CAP beneficiaries who arechosen in second or third rounds of the H-1B CAP, who cannot begin work onOctober 1. The new rules would extend the CAP-gap period, which would extendboth F-1 students’ statuses and work authorization, through April 1 of the yearfollowing H-1B petition submission. Such an extension would afford CAP-gapprotection for F-1 students whose H-1B petitions are approved with start datespast October 1.

• CAPLottery Selection

Under thenew rule, related entities would be prohibited from submitting multipleregistrations for the same beneficiary.

The rulewould also select individual H-1B lottery beneficiaries, rather thanregistrations. Currently, a beneficiary can conceivably be selected multipletimes if he or she has multiple registrations submitted on his or her behalf,resulting in low selection rates for most H-1B CAP lottery beneficiaries. Thenew rule would allow each beneficiary to be selected only once; if abeneficiary holds multiple registrations, each registering company would benotified of selection and provided an opportunity to file a legitimate H-1Bpetition on the beneficiary’s behalf.

BurdensomeRequirements

• Contract Requestsfor Third-Party Placements

The newrule would grant USCIS authority to request contracts, work orders, or othersuch evidence to document bona fide job offers. The new rule would require suchevidence show the contractual relationship between all parties, the terms andconditions of the beneficiary's work, and the minimum educational requirementsto perform the duties. 

Currently,the regulations do not state this authority.

SpecialtyOccupation Definition

The newrule imposes a new requirement for qualification as a “Specialty Occupation” thatthere exist a direct relationship between the required degree field(s) for theposition and the duties of the position. The new rule iterates that a generaldegree is insufficient to qualify. 

USCIS will now accept comments from thepublic on the proposed new rules for 60 days before afinal rule may be published.

USCIShas started issuing advance parole (AP) documents with a five year validityperiod to applicants who are eligible for five year employment authorizationdocuments (EADs).  USCIS recentlyannounced that certain initial and renewal EADs, including those filed byI-485 adjustment of status (green card) applicants, can now be approved for amaximum validity period of five years.

Thefive year AP have been issued both combined on the EAD card and as a separate APdocument.  The extended validity periodfor AP will reduce the number of times that applicants need to file form I-131while waiting for the green card to be issued.