Health Care Blog

On March 23, 2023, the U.S.Citizenship and Immigration Services (USCIS) announcedthe end of certain flexibilities initially introduced during the COVID-19pandemic. Prior to March 23, 2023, applicants and petitioners were granted an automatic60-day extension when responding to certain notices and requests.

Effective immediately, notices and requestsdated after March 23, 2023, must be responded to by the deadline listed in thenotice or request. This includes:

• Requests for Evidence;
• Continuations to Request Evidence(N-14);
• Notices of Intent to Deny;
• Notices of Intent to Revoke;
• Notices of Intent to Rescind;
• Notices of Intent to Terminateregional centers;
• Notices of Intent to Withdraw TemporaryProtected Status; and
• Motions to Reopen an N-400 Pursuantto 8 CFR 335.5, Receipt of Derogatory Information After Grant.

Applicants who wish to file FormI-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on aDecision in Naturalization Proceedings, must also comply with the deadlinesstated on the form instructions.

Upon request, the USCIS will continueto provide certain flexibilities on a case-by-case basis if the petitioner orapplicant is affected by an emergency or unforeseen circumstance, such as suchas natural catastrophes, national emergencies, or severe illness.

USCIS has announced that it has received more than 85,000 registrations duringthe registration period to reach the fiscal year (FY) 2024 H-1B cap. Musillo Unkenholt has begun the process of notifying clients if their caseswere selected or not selected in the H-1B lottery. Selected cases can file anH-1B petition with USCIS beginning April 1, 2023 through June 30, 2023. 

“Winning”the lottery does not guarantee an H-1B approval.  Petitioners filing H-1Bcap-subject petitions, including those petitions eligible for the advanceddegree exemption, must still establish eligibility for petition approval at thetime the petition is filed and through adjudication, based on existingstatutory and regulatory requirements.

Occasionally,the USCIS does not receive enough H-1B cap petitions during the April 1-June 30period to meet the 85,000 H-1B annual limit.  If this happens, USCIS willconduct subsequent lottery selections until it has approved 85,000 H-1Bpetitions.

On March 16, 2023, USCIS announced that theywill beginissuing Alien Documentation, Identification, and Telecommunication (ADIT)stamps through the mail forqualifying Lawful Permanent Residents (LPRs).

An ADIT stamp provides temporary evidence of LPRstatus and can be requested in situations where a LPR cannot rely on theirGreen Card for evidence of status. An ADIT stamp can be requested when:

1. The LPR no longer has their GreenCard; or
2. The LPR’s Green Card expired while aForm I-90, Application to Replace Permanent Resident Card; Form I-751, Petitionto Remove Conditions on Residence; or, Form N-400, Application forNaturalization is pending and anyautomatic extension of their green card has also expired.

Previously, a LPR had to make anappointment with a USCIS field office and have their passport physicallystamped to obtain an ADIT stamp. Now in qualifying cases USCIS will issue ADITstamps by mail.

 Thenew procedure for obtaining an ADIT stamp through the mail is:

1.  The LPR calls the USCIS contact centerat 800-375-5283 and explains why they need temporary evidence of LPR status.
2. The LPR identifies themselves andprovides their mailing address. At this time, USCIS will check whether themailing address provided can receive UPS or FedEx express mail. Since USCISwill issue the stamp via UPS or Fedex, a P.O. Box should not be provided as themailing address as P.O. Boxes only receive USPS mail.
3. If USCIS determines that the LPRqualifies to receive an ADIT stamp through the mail, then they will mail a FormI-94 with an ADIT stamp, DHS seal, and a printed photo of the LPR from USCISsystems.

In cases where there is an urgent needfor an ADIT stamp, USCIS will provide an appointment at a Field Office.Additionally, USCIS will not issue an ADIT stamp via mail if they cannotconfirm the LPR’s identity or address, or if they do not have a useable photoof the LPR in their systems.

The Department of Staterecently issued the April 2023 Visa Bulletin. This blog post analyzes this month’s VisaBulletin. 

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 will be using Table A: Final ActionDates chart for I-485 employment-based filings. A beneficiary must be currenton the above Table A chart in order to file their I-485, Adjustment of Statusapplications. See: USCIS Visa BulletinDates   

MU Law Analysis 

This month again there wasgood news and bad news for the retrogressed EB-2 and EB-3 categories. 

There was a retrogression in allcategories of EB-2 except China due to high demand. Philippineand ROW retrogressed by four months whereas India unexpectedlyretrogressed by nine months.  

The newsremains positive for Philippine and Worldwide EB-3, where dates held atCurrent. China EB-3 progressed three months, which wasunexpected, good news. 

Increased demand in the EmploymentThird category may necessitate the establishment of a worldwide final actiondate (including Mexico and Philippines) in the coming months. This means thatall EB-3 categories are expected to retrogress by the end of the fiscal year.

EB-3 OtherWorkers, which is the category for occupations such as Nurse Aides, remainsretrogressed but held steady to January 2020 for Philippine andROW.  

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.