Health Care Blog

OnJuly 26, 2023, the Department of State published in the FederalRegister new rulemaking that would allow U.S. citizens abroad to beaccompanied by an attorney, interpreter, and/or other third party whenattending certain appointments at an Embassy or Consulate overseas, such as anappointment for a US passport, to Report of Birth Abroad, to request assistancein locating or assisting U.S. citizens, to request emergency medical assistance,crime victim assistance, amongst other selected services. 

Thenew rule makes it clear that individuals will bear any costs associated withthe attendance of an attorney, interpreter, and that the representation orassistance by a third party or attorney does not excuse the applicant’s in-personappearance. 

Theproposed rule affects 20 CFR parts 50, 51, and 71.  Public comments should be submitted by September24, 2023.

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!

The USCIS has announced in a NewsAlert that it will select a second round of H-1B registrations in theFiscal Year 2024 H-1B Cap lottery (FY 2024 refers to CAP registrations filed inMarch 2023).

While there are only 85,000 H-1Bcap-subject visas available each year, a staggering 758,994 registrations wereentered into the H-1B lottery for FY2024. MU previously released a blog post onthis announcement here.

The second round of selectionsindicates that not enough H-1B filings were submitted between April 1, 2023 andJune 30, 2023 to meet the 85,000 H-1B CAP.

USCIS noted in its NewsAlert that it will announce once the second-round selection process iscompleted. Those with selected second-round registrations will have their ortheir attorney’s myUSCIS accounts updated to include a selection notice, whichincludes details of when and where to file.

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, August22, 2023 from 2:00-3:00 pm Eastern (1:00-2:00 pm Central).

Join us for this FREE webinar to learn more about:

• H1Bsfor Registered Nurses – Schedule A vs. H1B Timeline
• RegisteredNurse Beneficiary Requirements
• RegisteredNurse Position Requirements (BS in Nursing)
• H1Bsfor Registered Nurses at Cap Exempt Institutions
• StaffingCompanies vs. Direct Placement

PLEASE JOIN US!

U.S. Citizenshipand Immigration Services recently announced they will be expanding myProgress (formerlyknown as personalized processing times) to Form I-765, Application forEmployment Authorization, and Form I-131, Application for Travel Document.myProgress was previously available to applicants with an online USCIS accountwho had filed Form N-400, Application for Naturalization; Form I-90,Application to Replace Permanent Resident Card; or Form I-130, Petition forAlien Relative.

myProgress is atool created by the USCIS to provide personalized estimates of wait times for“major milestones” on an applicant’s case. According to the USCIS, theestimated wait times are based on historical patterns of cases with similarfacts. However, the USCIS did note that these wait times are not guaranteed, asthe USCIS cannot take into consideration all possible processing delays.

To view estimatedwait times via myProgress, applicants must first create a USCIS online accountor log into their existing account and select their pending application. Applicantsshould see a myProgress tab, which displays the estimated wait time until theircase has a decision. This tab will also display a check mark beside threemilestones as they are completed:

• Confirmation thatthe application was received;
• Biometricservices appointment (if required) has been completed; and
• The decision onthe pending case.

myProgress willnot provide information about the applicant’s eligibility to file an Outside ofNormal Processing Time service request. To determine their eligibility,Applicants will still be required to visit the public Check Case ProcessingTimes webpage.

Theretrogression cut-off in the EB3 category pushed back priority dates to2020.  While a retrogression is nevergreat news, this retrogression is not as dramatic as it might seem at firstlook.  Our sense is that when the October2023 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 is not forthcoming with their demand and usagedata, please assume large error bars around our projection.

Asignificant retrogression of priority dates is common nearly every summer.  Visa numbers began to run out towardSeptember 30, which is the end of the fiscal year.  The DOS is trying to use the last of the140,000 annual employment-based visas in September.  (Note- in some years the employment-basedvisa quota is greater than 140,000). While the DOS could theoretically release all 140,000 immigrant visas onOctober 1 every year, they do not do this so that there is a steady stream ofimmigrant visas throughout the year.

InOctober an additional 140,000 EB visas will be allocated, which is why weexpect the dates to progress again. Again, it is difficult to be too precise with an October 2023 EB-3projection because we do not know too much about the DOS’ demand and usagedata.

The Department of Statejust issued the August 2023 Visa Bulletin. This blog post analyzes this month’sVisa Bulletin.

Visa Bulletin

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

USCIS

The USCIS is expected touse Table A: Final Action Dates chart for I-485 employment-based filings. ABeneficiary must be current on the above Table A chart to file their I-485, Adjustmentof Status applications. See: USCIS Visa Bulletin Dates

MU Law Analysis

As we explained last month, the DOS has almost exhausted all employment-based visasfor FY 2023.  As a result, almost allcategories retrogressed will retrogress even further in August, essentiallyending visa issuance until the start of the next fiscal year on October 1,2023.  There were some slight improvementsin the Chinese dates probably reflecting strained US-Chinese relations anddecreased demand related to COVID in the 2019-2022 time frame.

These EB-3 retrogressionsmean that the USCIS and DOS overextended priority dates earlier in the year anddid not see the demand for the visa numbers that were there.

The Visa Bulletin includesa Note about EB-3s, indicating that the demand exceeded the expectation.  Accordingly, MU does not expect anyprogression in EB-3 for the rest of the fiscal year.

Even the EB-1 dates wereretrogressed, including the Indian date by 10 years.  The Visa Bulletin does say that the IndianEB-1 dates should return to at least February 2022 at the start of the nextfiscal year.

USCIS announced that applicants filing Form I-539seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrantstatus can now request premium processing on Form I-907 based on the followingschedule:

• Effective June 13, USCISnow accepts I-907 requests filed via paper form or online for F, M, or Japplicants with a pending I-539;
• Starting June 26, USCISwill accept I-907 requests filed together with I-539 applications seeking F, M,or J status;

This expanded premium processing isonly available for change of status requests. The I-907 request must be submitted in the same manner as the I-539application, either online or snail mail. The premium processing clock will start only once all I-539 applicantshave completed biometrics.

The premium processing fee for F, M,and J change of status applicants is $1,750 and the processing time is 30 days.

USCIS hasissued a policy alert and hasupdated its policy manual toprovide additional guidance on the compelling circumstances that may warrantthe issuance of certain Employment Authorization Documents (EADs).

Under thecurrent regulation, USCIS may, in its discretion, issue EADs to certain I-140beneficiaries who, at the time of filing Form I-765: (1) hold E-3, H-1B, H-1B1,O-1, or L-1 nonimmigrant status; (2) have an I-140 priority date that is notcurrent according to the visa bulletin; and (3) can demonstrate compellingcircumstances that justify the issuance of employment authorization.

Anindividual with a valid compelling circumstances-based EAD is considered byUSCIS to be in a period of authorized stay, and therefore will not accrueunlawful presence.

In itsupdated policy manual, USCIS providesa non-exhaustive list of situations that could lead to a finding that compellingcircumstances exist, including:

• serious illness and disability,
• employer dispute or retaliation,
• other substantial harm to the applicant, or
• significant disruption to the employer.

The updated policymanual also provides guidance on evidence an applicantcould submit to demonstrate compelling circumstances such as:

• school or higher education enrollment records,
• mortgage records, or
• long-term lease records

Finally, USCIS confirms in its policy manual thata compelling circumstances-based EAD will be granted for a validity period ofup to 1 year, with the possibility of subsequent renewal(s).

TheDepartment of State just issued the July 2023 Visa Bulletin. This blog postanalyzes this month’s Visa Bulletin.

VisaBulletin

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

USCIS

The USCIS isexpected to use Table A: Final Action Dates chart for I-485 employment-basedfilings. A Beneficiary must be current on the above Table A chart to file theirI-485, Adjustment of Status applications. See: USCIS Visa Bulletin Dates

MU LawAnalysis

This VisaBulletin shows that the DOS has almost exhausted all employment-based visas forFY 2023.  All categories remained thesame or retrogressed.

The twocategories that retrogressed were EB-3 for All Other Countries, including thePhilippines.  The date was moved back toFeb 1, 2022, from June 1, 2022, a four-month retrogression.   India EB-3 dropped back to January 1, 2009,which is a significant retrogression. 

These EB-3retrogressions mean that the USCIS and DOS overplayed their progression earlierin the year and did not see the demand for the visa numbers that were clearlythere. 

MU’sexpectation is that we will see any more progression throughout FY23, throughSeptember 30, 2023.

The VisaBulletin included these notes about the two retrogressed categories.

E.RETROGRESSION IN THE EMPLOYMENT-BASED THIRD PREFERENCE (EB-3) FOR REST OF WORLDCOUNTRIES, MEXICO, AND PHILIPPINES

In the May2023 Visa Bulletin, the EB-3 final action dates for Rest of World, Mexico, andthe Philippines were established to keep number use within the FY 2023 annuallimit. This was in part due to higher than expected demand from applicants withpriority dates earlier than the established final action dates.  The Department and USCIS continue to seeincreased demand from these applicants, necessitating retrogression.  As a result, the Rest of World, Mexico, and PhilippinesEB-3 final action dates have retrogressed to 01FEB22. This situation will becontinually monitored, and any necessary adjustments will be made accordingly.

F.RETROGRESSION IN THE EMPLOYMENT-BASED THIRD PREFERENCE (EB-3) FOR INDIA

Asreaders were informed was possible in Item E of the June 2023 Visa Bulletin, ithas become necessary to retrogress the EB-3 final action date for Indiaeffective in July. India’s EB-3 number use has been consistently robustthroughout the fiscal year, and it is estimated that applicants chargeable toIndia will use all EB-3 numbers made available to them during this fiscal year,taking into account INA 202(a)(5) and INA 202(e), by the end of June. Thus,applicants from India are subject to a final action date of 01JAN09. Thissituation will be continually monitored, and any necessary adjustments will bemade accordingly.