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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.

USCISannounced on 10/12/2023 that they have launched the Enterprise Change ofAddress (E-COA) self-service tool This tool will allow foreign nationals toupdate their address with USCIS through their USCIS online account.

USCIS requires any foreign national inthe US in nonimmigrant status or legal permanent resident status to updatetheir address within 10 days of moving, regardless of whether they have apending case with USCIS. In cases where there is a pending case, it isespecially important to update the mailing address to ensure critical documentsare received.

To update your address using the E-COAservice, you must do the following:

    1)   Create a USCIS online account if youdo not have one here.

    2)   Log in and select the “Change ofAddress” option at the top of the webpage and start the 4-step application toupdate your address:

a. Step 1 – Enter your full legal name and dateof birth;

b. Step 2 — Enter your current physicaladdress. Answer whether the physical address is the same as the mailingaddress, if the mailing address is different, you must enter that here as well;

c. Step 3 – Enter your A-number if any. You canfind this number on receipt or approval notices for certain case typesassociated with green card petitions (i.e., I-140s, I-485s, I-765s) as well ason EADs and Green Cards. Lastly, enter receipt numbers for any pending cases;and,

d. Step 4 – carefully review the informationand submit.

Once the request is submitted, yourphysical and mailing address will be updated with USCIS for all pending cases.

At this time, the E-COA service is notavailable for foreign nationals applying for certain immigration benefitsassociated with the Violence Against Women Act (VAWA), T nonimmigrant status,or U nonimmigrant status. For a full list of the categories that are ineligiblefor address updates through E-COA, please refer to USCIS’s website here.

The Department of Statehas just issued the November 2023 Visa Bulletin, which is the second 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 beapproved for their Green Card (Permanent Residency card) or Immigrant Visaappointment.

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

This was one of the leastinteresting Visa Bulletins in a long time. All dates are exactly as they were last month, except for All Other,Mexico, and Philippine EB-2, which advanced one week.

MU Law believes that theState Department is acting conservatively, which while frustrating, may proveto ratchet down the anxiety around the monthly chart, and provide a bettermeasure of processing times for those involved. While no one likes a nearlytwo-year EB-3 retrogression for non-India and China, it may prove to bea stable set of dates.  We do expectthese categories to slowly progress throughout the fiscal year pushing through2022, and perhaps getting into 2023 before the end of the fiscal year.

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.