Health Care Blog

TheU.S.Citizenship and Immigration Services (USCIS) announcedit will be permanently eliminating the biometrics service fee, $85.00, whenfiling Form I-539, Application to Extend/Change Nonimmigrant Status. Previously,USCIS had temporarily suspended biometric services fees for only H-4, L-2, andE applicants.

Effective October 1, 2023, allapplicants who file Form-I-539 to extend or change their nonimmigrantstatus will no longer be required to submit a biometrics service fee as part ofthe application process. If an applicant mistakenly submits the biometricservices fee, USCIS will issue the applicant a refund.

Further,USCIS has stated that most applicants who file Form-I-539 after Oct. 1^stwill not be scheduled to attend a biometric services appointment. If USCISdetermines that biometrics are required, the applicant will receive a notice withinformation about appearing for their biometric services appointment. If an applicanthas already been scheduled to appear for a biometrics services appointment, theapplicant should still attend the appointment as scheduled.

TheUSCIS updated its policymanual,regarding employment authorization documents (EADs), on September 27, 2023. TheUSCIS has increased the maximum validity period for EADs issued in manycategories.

USCIS updated the maximum validity period for initial andrenewed EADs to five years for the following categories: pendingemployment-based applications for adjustment of status (green card), refugees,granted asylum, granted withholding of deportation or removal, pendingapplication for asylum or withholding of removal, and pending application forsuspension of deportation or cancellation of removal.

USCISupdated the maximum validity period for initial and renewed EADs from one yearto the end date of the authorized parole period, not to exceed 5 years, forthose paroled as refugees.

USCISalso updated its policymanual toclarify that the Form I-94 can be used as both evidence of status andemployment authorization incident to status for the following: Asylees, spousesof US citizens or children of such spouses (K-3 and K-4), victims of severeforms of trafficking in persons (T-1), spouses of E nonimmigrants (E-1S, E-2S,E-3S) with limited exceptions, spouses of L nonimmigrants (L-2S), and victimsof qualifying criminal activity (U-1) and certain qualifying family members(U-2, U-3, U-4, and U-5).

Thisguidance is effective immediately and applies to EAD applications pending orfiled on or after September 27, 2023.

UnlessCongress passes a spending bill in the coming week, the US government will shutdown at midnight on Sunday, Oct. 1. However, not all immigration processes willhalt immediately in light of a shutdown.

Immigrationcases proceed through several different government agencies. A shutdown willaffect certain agencies (and thus their processes) differently thanothers. 

What willHalt as of an Oct. 1 Shutdown 

DOL

Mostsignificant to employment-based immigration cases, the Department of Labor(DOL) will not operate during a government shutdown.

LaborCondition Applications (LCAs), required for H-1B and E-3 filings, and PermanentLabor Certifications (PERMs), required for I-140 filings, cannot be drafted orfiled during a government shutdown, and pending LCAs and PERMs will not beissued during a shutdown.

Further,the DOL confirmed to the American Immigration Lawyers Association (AILA) thatthe full FLAG online filing system will be disabled during a governmentshutdown. LCA and PERM records cannot be accessed online or printed from theFLAG system during a shutdown.

The DOL andMU recommend that all LCA and PERM filings be filed this week, prior to thepotential shutdown. While LCAs typically take at least 7 days to be adjudicatedby the DOL, the DOL indicated that it will attempt to adjudicate LCAs that arereceived this week prior to the potential shutdown.

Finally,the DOL may allow flexibility for employers who miss filing deadlines due tothe government shutdown; if such guidance is issued, MU will update its blogaccordingly.

What MayProceed after an Oct. 1 Shutdown?

USCIS

Casesthat will be filed with or are currently pending with US Citizenship andImmigration Services (USCIS) will likely proceed without issue during ashutdown. In past shutdowns, USCIS has accepted late immigration filings thatcould not be timely filed due to the government shutdown.

DOS

Embassyservices, such as visa appointments, are run by the Department of State and arealso unlikely to be affected during a shutdown.

CBP

Entriesto the US, including Canadian TN appointments, are handled by Customs andBorder Patrol and are also unlikely to be affected by a shutdown.

If youare unclear how the shutdown will affect your case, clients are encouraged tocontact their MU attorney for best strategies in the week ahead and during thepotential government shutdown.

The Department of State has just issued the October2023 Visa Bulletin, which is the first of the 2024 US fiscal year  This blog post analyzes this month’s VisaBulletin.

Visa Bulletin

Table A: Final Action Dates — Applications with these dates may be approvedfor their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Table B: Dates of Filing

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

MU Law Analysis

The most notable dates in the Visa Bulletin were the -1DEC21 dates for Philippineand All Other EB-3.  While thesedates moved forward from last month’s May 2020 dates, many were hoping forprogression at least in 2022.  MU Lawbelieves that the State Department is acting conservatively, which whilefrustrating, may prove to ratchet down the anxiety around the monthly chart,and provide a better measure of processing times for those involved.  While no one likes a ~20 month retrogression,it may be wise.  We do expect thesecategories to steadily progress throughout the fiscal year pushing through2022, and perhaps getting into 2023 before the end of the fiscal year.

IndiaEB-3 and China EB-3advanced by more than three years to May 1, 2012 (India), and by four months toJanuary 1, 2020 (China), reflecting the slow but steady movement in thosecategories. 

IndiaEB-2 progressed toJanuary 1, 2012.  China EB-2 isnow October 1, 2019.  The ROW EB-2held basically even, advancing by just one week, to July 8, 2022.

As mentioned in a prior blogpost, on February 14, 2023 USCIS updatedits policy on the Child Protection Act (CSPA) age calculation forcertain dependents nearing age 21 and filing for adjustment of status (I-485 orgreen card application).  The CSPAprovides a method to calculate the dependent’s age based on the date animmigrant visa becomes available and to benefit from the calculation, the dependentmust also take certain steps toward applying for the green card within one yearof immigrant visa availability.  Theserequired steps are known as the “sought to acquire requirement.” 

The USCIS has updated its Policy Manualto consider the February 14^th USCIS policy change as an extraordinarycircumstance.  This is important because asan extraordinary circumstance, the February USCIS policy change may excuse anapplicant’s failure to meet the “sought to acquire requirement.” 

The February 14^th policy changeaims to benefit applicants who failed to meet the sought to acquire requirementand did not apply to adjust their status because their CSPA age was over theage of 21 under the old policy.  USCIS alsoclarified that it will consider dependents to have met the “sought to acquirerequirement” if their respective applications to adjust status were pending onFebruary 14, 2023 and submitted within 1 year of a visa becoming availablebased on the Final Action Dates chart and in accordance to the policy in effectat the time of the application.

For more information on this update, hereare the links to the USCISpress release and respective policyalert.  If you think yourdependent may benefit from this new policy, please reach out to your MUattorney.

TheTemporary Final Rule (TFR) which USCIS issued on May 4, 2022 allowing forcertain EAD renewals to qualify for an automatic extension of employmentauthorization of up to 540 days isset to expire on October 26, 2023.

Under current USCIS regulations, individualswho file a renewal application for their EAD qualify for an automatic extensionof employment authorization of 180-days past their EAD expiration if thefollowing requirements are met:

• A Form I-765 was properly filed torenew the current EAD prior to the expiration of the EAD;
• The renewal application is for acategory eligible for automatic extension. For a list of all eligible EADcategories please refer to USCIS’swebsite.
• The category of the EAD matches thestatus indicated on the Receipt Notice of the pending I-765 renewalapplication.
• The Form I-765 has not been denied.Denial of the renewal application terminates the employment authorizationprovided by the automatic extension.

The TFR has provided a temporarybenefit to individuals who meet the above requirements, expanding the automaticextension period for qualifying applicants whose Form I-765 is received on orbefore October 26, 2023.

Under the TFR, any qualifying renewalapplication filed on or before October 26, 2023, will gain the full benefit ofthe 540-day extension. Even applications received on October 26, 2023, will beprovided with an additional 540-days of employment authorization beyond theirEAD expiration.

From October 27, 2023, onward, anyqualifying EAD renewals received by USCIS will be granted the typical 180-dayextension.

TheU.S. Citizenship and Immigration Services (USCIS) has introduceda new onlineappointment request form, which allows individuals, attorneys, andaccredited representatives to request an in-person appointment at a fieldoffice for ADIT stamps, Emergency Advance Parole, Immigration Judge Grantswithout having to call the USCIS Contact Center.

Thenewly launched online form is not a self-scheduling tool.Individuals may request a specific date and time for an in-person appointment,but the USCIS cannot guarantee that the requested appointment date will bescheduled.  The USCIS Contact Center willreview submissions and the availability of in-person appointments at a specificfield office. The USCIS will then confirm and schedule the individual for anavailable in-person appointment.

Accordingto the USCIS, the online appointment request form aims to enhance the customerexperience by collecting required information upfront and potentiallyscheduling the requested appointment without any further engagement with theUSCIS Contact Center. However, the USCIS does state that the Contact Center maycontact an individual either by phone or email depending on the appointmentreason and urgency, using the information provided on the submitted request.

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, August 22, 2023 from 2:00-3:00 pm Eastern (1:00-2:00 pm Central).

Join us for this FREE webinar to learn more about:

• H1Bs for Registered Nurses – Schedule A vs. H1B Timeline
• Registered Nurse Beneficiary Requirements
• Registered Nurse Position Requirements (BS in Nursing)
• H1Bs for Registered Nurses at Cap Exempt Institutions
• Staffing Companies vs. Direct Placement

PLEASE JOIN US!

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, August 22, 2023 from 2:00-3:00 pm Eastern (1:00-2:00 pm Central).

Join us for this FREE webinar to learn more about:

• H1Bs for Registered Nurses – Schedule A vs. H1B Timeline
• Registered Nurse Beneficiary Requirements
• Registered Nurse Position Requirements (BS in Nursing)
• H1Bs for Registered Nurses at Cap Exempt Institutions
• Staffing Companies vs. Direct Placement

PLEASE JOIN US!

TheDepartment of State has just issued the September2023 Visa Bulletin.  This is the finalVisa Bulletin of Fiscal Year 2023. This blog post analyzes this month’s VisaBulletin.

VisaBulletin

Table A: Final Action Dates — Applicationswith these dates may be approved for their Green Card (Permanent Residencycard) or Immigrant Visa appointment.

Table B: Dates of Filing

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

MU LawAnalysis

As is oftenthe case toward the end of the fiscal year, there was not much movement as theUSCIS and DOS seek to use the remaining visas in the fiscal year.

EB-3 Other Workers,which is the category for occupations for most occupations, remainsretrogressed to 01May2020.  This date,along with all categories, will not advance until October 1, 2023, with thestart of the new fiscal year.  Our senseis that when the October 2023 visa bulletin is published, it will show an EB-3(non-India and non-China) with a mid-2022 priority date.  However, because the Department of State isnot forthcoming with their demand and usage data, please assume large errorbars around our projection.

EB-2 advancedfor all countries, except India and China, which may be good news for EB-2 inthe next fiscal year.

Sometimeduring September, the DOS may announce that all immigrant visas have been usedfor FY 2023.  Rest assured that this isexpected and will not have any bearing on the FY 2024 Visa Bulletin dates.