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MU Law will be hosting a FREE webinar for ourclients and friends on Tuesday, February 7, 2023 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

·        H-1BCap Basics, Registration Process, and Projections

·        Whatis a Specialty Occupation?

·        H-1BDependency

·        SpecialIssues for Staffing Companies, Third Party Placements

·        Employer-Employeerelationships, end-client documentation

·        Cap-gapfor F-1s as well as CPT/OPT maintenance

·        Alternativesto an H-1B

·        Top10 things H-1B employers can do to stay compliant

PLEASE JOIN US!

Continuing its initiative to expand premium processing eligibility, on January 12, 2023, USCIS issued a news alert that its premium processing program will be expanded again to include initial I-140 petitions filed under the EB-1 and EB-2 categories, as well as applications for OPT and STEM OPT applications.

EB-1 and EB-2 I-140 Petitions

MU previously published blogs on the first phase, second phase, third phase of the initiative.

Beginning Jan. 30, 2023, USCIS will accept Form I-907 requests for:

    •    All pending E13 multinational executive and manager petitions and E21 NIW petitions; and

    •    All initial E13 multinational executive and manager petitions and E21 NIW petitions.

USCIS has 45 days to issue an RFE, approval, or denial on cases that request premium processing for these newly included Form I-140 classifications. USCIS will reject any premium processing requests for the classifications above that are filed before the appropriate start date.  

OPT and STEM OPT Applications

In March 2023, USCIS will accept Premium Processing upgrade requests for pending OPT and STEM OPT applications.

In April 2023, USCIS will accept Premium Processing requests for initial OPT and STEM OPT applications.

USCIS will announce the specific dates for each category in February 2023. 

USCIS also anticipates expanding Premium Processing for certain student and exchange visitors who have filed Forms I-539 in May 2023 and June 2023; an announcement from USCIS on this expansion is forthcoming.

USCIS has 30 days to issue an RFE, approval, or denial on cases that request premium processing for Form I-765 and I-539 classifications.

The Department of State has recently issued the February 2023 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

This was anuneventful Visa Bulletin.  Most datesremained the same as in the January2022 Visa Bulletin. 

TheWW and Philippine EB-3 remain current. We expect these categoriesto be current through much of the current fiscal year. 

EB-3 Other Workers, which is the category for occupationssuch as Nurse Aides, remains retrogressed. It reverted to January 2020 because of continued higher usage thanexpected by the State Department. 

We remind allreaders that the FY 2023employment-based immigrant visa limit is 197,000, as compared with 281,507 inFY 2022.  These quotas are greater thanthe usual 140,000 employment-based limit because of spillovers of unusedfamily-based immigrant visas in the prior fiscal year. Slowdowns related toCOVID caused the allocation of family-based visas to be short of the limit.  It is expected that the employment-basedquota will return to 140,000 in FY 2024, which starts October 1, 2023.

On January 3,2023,the USCIS publisheda proposed rule that will increase DHS (USCIS) government filing fees .  The proposed fees for most businessimmigration filings are in the table, below.  The above-link will lead the reader to thefull list of proposed increases.  DHS will accept public comments on theproposed rule for 60 days following publication of the proposed rule in the Federal Register. DHS will thencarefully review and consider each comment before drafting and publishing afinal rule to implement a new fee schedule.

USCIS lastraised their fees in 2016, and before that in 2010. USCIS fees pay for much ofthe USCIS budget.  Very little of theUSCIS’ budget comes from federal tax dollars.

Proposed fees

The U.S. Citizenship and ImmigrationServices (USCIS) announced it will conduct a nationwide trial of proposedchanges to certain portions of the naturalization test.  Currently, the naturalization test consists offour components: reading, writing, civics, and the ability to speak English.The USCIS subject matter experts reviewed the current format and suggestedredesigning the civics and speaking components of the test. The trial isexpected to improve the standardization and structure of the naturalizationtest.

The trial, tentatively scheduled for afive-month period in 2023, will test a newly developed English-speakingcomponent and a civics component with updated format and content. The reading and writing components of the naturalization test willremain unchanged.

The trial will be conducted with thehelp of volunteer community-based organizations (CBOs) that work with immigrantEnglish language learners and lawful permanent residents preparing fornaturalization. The UCSIS may use the results of the trial to support changesto the naturalization test.

The Department of State has recently issued the January2023 Visa Bulletin.  This blog post analyzesthis month’s Visa Bulletin.  The FY 2023employment-based immigrant visa limit is 197,000, as compared with 281,507 inFY 2022.  These quotas are greater thanthe usual 140,000 employment-based limit because of spillovers of unusedfamily-based immigrant visas in the prior fiscal year.  Slowdowns related to COVID caused the allocationof family-based visas to be short of the limit.

Visa Bulletin

Table A:  Final Action Dates –Applications with these dates may be approved for their Green Card (PermanentResidency card) or Immigrant Visa appointment.

Table B: Dates of Filing

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

MU Law Analysis

A retrogression has now happened in India EB1 and China EB-1. This reflects a smaller allocationof employment-based immigrant numbers than in the past two years, along withcontinued high demand in all immigration categories.

All other dates are the same as in the December2022 Visa Bulletin. 

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

EB-3 Other Workers, which is the category foroccupations such as Nurse Aides, remains retrogressed but held steady to June2020 for Philippines and ROW.  We do notexpect further retrogression in these two categories.  We would not be surprised to see someprogression in these categories throughout this fiscal year.

Weoften receive questions about the role of CGFNS in nurse immigration.  CGFNS has a number of different product lineswhich overlap and add to the confusion.

Hereare three of the most common uses of CGFNS within the US visa processingsystem.  It is best to think of thesethree product lines as independent:

CGFNScredentials evaluation (CES) – Many US state licensing bodiescall on CGFNS to review and evaluate foreign nurse’s credentials in advance ofqualifying the nurses to sit for the NCLEX exam.  CES is the process by which applicants canhave their nursing education evaluated by CGFNS for clearance to sit for thestate’s nursing exam (NCLEX).

CGFNSPredictor (Qualifying) Exam – This is an older, legacy examthat is now rarely used to assess a foreign nurse’s competence in nursing.  It was more widespread before the expansionof international NCLEX testing centers. 

CGFNSVisa Screen – This is the Healthcare Worker Certificate (HWC) that isneeded by RNs at the very end of their immigration process, at their consularinterview.  CGFNS’ HWC is branded theVisa Screen.  All nurses and allied healthcare workers musthave:

·       Passed the USlicensing exam;

·       Graduated from auniversity that is equivalent to a US school in the same profession;

·       Passed an Englishfluency examination; and

·       Hold a spotlessoverseas professional license. 

In recent years USCIS approved a second issuer of HWCs, Josef Silney. 

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.