Visa Lawyer Blog

Articles Posted in Highly Skilled Workers

by

border-g740e70764_1280

USCIS Updates Policy Manual Clarifying Physical Presence Requirement for Asylees and Refugees

The U.S. Citizenship and Immigration Services (USCIS) recently updated its Policy Manual to clarify that BOTH asylees and refugees must have been physically present in the United States for one year at the time the Immigration Officer adjudicates their Form I-485, Application to Register Permanent Residence or Adjust Status, rather than at the time the individual files their adjustment of status application.

This policy is effective immediately and applies to all Form I-485 Applications to Register Permanent Residence or Adjust Status and Form N-400, Applications for Naturalization, that are pending on February 2, 2023, and applications filed on or after that date.

What does this mean?

This means that in order to be eligible for adjustment of status (a green card), an asylee or refugee must have been physically present in the United States for at least 1 year after either being granted asylum status or admitted as a refugee.

Additionally, the policy manual:

  • Provides that asylees and refugees are required to accrue 1 year of physical presence by the time of adjudication of the adjustment of status application, rather than by the time they file the application (and that USCIS may request additional information to determine such physical presence in the United States).
  • Clarifies that asylee and refugee adjustment applicants who have held the immigration status of exchange visitor (J-1 or J-2 nonimmigrants) and who are subject to the 2-year foreign residence requirement under INA 212(e) are not required to comply with or obtain a waiver of such requirement in order to adjust status under INA 209.
  • Makes technical updates, including clarifying processing steps for refugees seeking waivers of inadmissibility and removing references to the obsolete Decision on Application for Status as Permanent Resident (Form I-291).
  • Provides that USCIS considers a refugee or asylee who adjusted status to a permanent resident despite filing for adjustment before accruing 1 year of physical presence to have been lawfully admitted for permanent residence for purposes of naturalization if the applicant satisfied the physical presence requirement at the time of approval of the adjustment of status application.

Continue reading

by

spin-wheel-g87d245642_1280

It’s that time of the year again. The H-1B cap season for FY 2024 will soon be in full swing.

USCIS has just announced that the H-1B initial registration period for the FY 2024 cap is scheduled to open at noon ET on March 1, 2023 and will remain open until noon ET on March 17, 2023.

Prospective petitioners (also known as registrants), and their authorized representatives, who are seeking authorization to employ H-1B workers subject to the cap, must complete an electronic registration process on their myUSCIS online account to receive a chance at selection. The registration process is simple and easy, requesting only basic information about the prospective petitioner and each requested worker.

The H-1B FY 2024 selection process will be based off properly submitted electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

That means that in order to have a chance of being selected, all prospective petitioners and their authorized representatives seeking to file H-1B cap-subject petitions for FY 2024, including for beneficiaries eligible for the advanced degree exemption, must first register during the registration period (March 1, 2023, to March 17, 2023) and pay the associated $10 registration fee for each beneficiary.

Continue reading

by

happy-birthday-gc71254c11_1920

Welcome back to Visalawyerblog! We hope you had a wonderful Christmas break with your families.

In this blog post, we share a new update from the State Department regarding the continuation of its interview waiver policy for certain nonimmigrant visa types.

In a new announcement, the Secretary of State has revealed that it is extending its interview waiver policy for certain nonimmigrant visa types until December 31, 2023, allowing Consular officers to continue to waive the in-person interview requirement for certain classes of immigrants.

What is the extension all about?

As you might recall back in December of last year, the State Department first announced its interview waiver policy for temporary workers applying for H-1, H-3, H-4, L, O, P, and Q visas in their country of nationality or residence, following USCIS approval of their petitions.

The State Department has now confirmed it will continue its interview waiver policy until at least the end of 2023.

Who qualifies?

Interview Waiver Policy for H, L, O, P, Q visas

Pursuant to the interview waiver policy, Consular officers have the discretion to waive the visa interview requirement for:

  • individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who were previously issued any type of visa, and that have not had any visa refusal or ineligibility issues in the past OR
  • first-time individual petition-based H-1, H-3, H-4, L, O, P, and Q who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided that they have no ineligibility issues and have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA)

Continue reading

by

a-book-g7ca408570_1920

In this blog post, we bring you some unfortunate news. Recently, the U.S. Department of Education announced that it will no longer recognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.

Sadly, this means that certain F-1 student visa applicants will be impacted by this change, including those undertaking an English language study program. The U.S. Citizenship and Immigration Services has said that such programs are required to be accredited under the Accreditation of English Language Training Programs Act.

Additionally, this change will impact F-1 students applying for a 24-month science, technology, engineering and mathematics (STEM) optional practical training (OPT) extension, because government regulations now require use of a degree from an accredited, Student and Exchange Visitor Program (SEVP) certified school to receive a STEM OPT extension.

The regulations make clear that the school must be accredited at the time of the application (the date of the designated school official’s (DSO) recommendation on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status).

What happens next?

Students who have been impacted by this change will receive notification letters from SEVP informing them that their schools’ certification has been withdrawn.

USCIS has said that students who are enrolled at an ACICS-accredited school should contact their DSOs immediately to understand how this loss of accreditation will impact their status and/or immigration benefits.

To make matters worse, schools accredited by ACICS will not be able to issue program extensions, and students will only be allowed to finish their current session if the ACICS-accredited school chooses to voluntarily withdraw its certification or if is withdrawn by SEVP.

If a student’s ACICS-accredited school can provide evidence of a Department of Education recognized accrediting agency or evidence in lieu of accreditation within the allotted timeframe, the student may remain at the school to complete their program of study.

Requests for Evidence Imminent for I-539 Extend/Change of Status

The U.S. Citizenship and Immigration Services (USCIS) will be issuing requests for evidence (RFEs) to individuals who filed Form I-539, Application to Extend/Change Nonimmigrant Status, on or after August 19, 2022, requesting a change of status or reinstatement to attend an ACICS-accredited English language study program.

Once the individual receives the RFE, they will be given the opportunity to provide evidence in response, such as documentation showing that the English language study program they are seeking to enroll in meets the accreditation requirements.

If the student does not submit a new Form I-20 from a school accredited by an entity recognized by the Department of Education, USCIS will deny a change of status or reinstatement request.

Continue reading

by

together-gc428d3cbf_1920

Our readers will be happy to know that the Department of State has released a new update in the month of October on the status of worldwide consular visa operations.

The COVID-19 pandemic caused a period of uncertainty and created tremendous backlogs at the Consular level. As most of you will remember, Consular missions around the world suspended routine visa services in March of 2020 to combat the rapid spread of COVID-19. Later, the Department of State announced a phased resumption of routine visa services, however some Consulates and Embassies resumed services faster than others. Since then, things have slowly but surely started to turn around.

To help improve visa processing, the State Department has said that worldwide visa operations are now recovering faster than expected. More U.S. foreign service personnel have been hired to reduce visa interview wait times at Consular posts worldwide. It is expected that this year, the Department of State will reach pre-pandemic processing levels. This is amazing news for immigrants that have been waiting for visa interview appointments for months, or even years.

How did COVID-19 impact Worldwide Visa Operations?

The COVID-19 pandemic impacted the agency’s ability to process visa applications in two major ways.

First, restrictions on travel to the United States, social distancing, and local quarantine restrictions made it difficult to accommodate large groups of people inside Consular facilities, such as waiting rooms. This of course reduced the number of people that could be scheduled for in-person visa appointments dramatically, causing a reduction in the number of visa applications that could be processed.

Secondly, due to the suspension of visa services worldwide, the State Department experienced a substantial decrease in funding which led to a declining workforce in 2020 and 2021. This dramatically impacted the number of applications that could be processed.

Continue reading

by

businessmen-gd26be9ace_1280

In this blog post, we share with you some new updates regarding the employment-based numerical limits for immigrant visas in fiscal year 2022.

As a result of the global COVID-19 pandemic and the suspension of visa services at U.S. Consulates and Embassies worldwide, approximately 140,000 family-sponsored visa numbers went unused during fiscal year 2021.

This was due to the pent-up demand for in-person visa interviews that could not be accommodated. Fortunately, these visa numbers have trickled down to the employment-based categories, expanding the number of visa numbers available in fiscal year 2022 to nearly double the usual amount.

Sadly, fiscal year 2022 is nearly coming to a close. To provide the public with more transparency regarding the usage of employment-based visa numbers, the U.S. Citizenship, and Immigration Services (USCIS) has updated its frequently asked questions for employment-based adjustment of status. We breakdown the questions and answers down below.

How many employment-based visas did USCIS and DOS use in FY 2021? How many employment-based visas went unused in FY 2021?

A: The annual limit for employment-based visa use in FY 2021 was 262,288, nearly double the typical annual total. The Department of State (DOS) publishes the official figures for visa use in their Report of the Visa Office.

Overall, the two agencies combined to use 195,507 employment-based immigrant visas in FY 2021.

  • DOS issued 19,779 employment-based immigrant visas, and USCIS used 175,728 employment-based immigrant visas through adjustment of status, more than 52% higher than the average before the pandemic.
  • Despite our best efforts, 66,781 visas went unused at the end of FY 2021.

UPDATED: Can you estimate how many family-sponsored or employment-based immigrant visas USCIS and DOS will use during FY 2022?

A:  DOS has determined that the FY 2022 employment-based annual limit is 281,507 – (slightly more than double the typical annual total) – due to unused family-based visa numbers from FY 2021 being allocated to the current fiscal year’s available employment-based visas.

  • Through July 31, 2022, the two agencies have combined to use 210,593 employment-based immigrant visas (FY2022 data is preliminary and subject to change).
  • USCIS alone approved more than 10,000 employment-based adjustment of status applications in the week ending August 14, 2022, and DOS continues its high rate of visa issuance, as well. USCIS states that it will maximize our use of all available visas by the end of the fiscal year and are well-positioned to use the remaining visas.

NEW: Will my case be processed faster if I file a second Form I-485?

A: Submitting a new adjustment of status application typically does not result in faster adjudication and may have the opposite effect by adding extra burden to the USCIS workload.

  • USCIS is identifying and prioritizing all employment-based adjustment of status applications with available visas and approved underlying petitions, including those received prior to this fiscal year. This includes applications where noncitizens have submitted a transfer of underlying basis requests.

Continue reading

by

spin-wheel-g155c980bc_1280

Welcome back to Visalawyerblog! In this post, we bring you the latest H-1B lottery news.

Today, August 23, 2022, USCIS announced that the computer-generated H-1B lottery has been fully completed to select enough petitions to meet the H-1B regular cap and the U.S. advanced degree exemption for fiscal year 2023.

With this announcement, USCIS brings the 2023 fiscal year H-1B lottery to a close. Those wishing to participate in the program must wait until March 2023 to submit new applications for the fiscal year 2024 H-1B visa lottery.

For fiscal year 2023, USCIS previously announced that the agency received 483,927 H-1B registrations and initially selected 127,600 registrations as needed to reach the fiscal year 2023 numerical allocations. No second lottery was conducted. Those with selected registrations received notification of selection through their myUSCIS accounts including a selection notice, with details about when and where to file.

In comparison to fiscal year 2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations to meet the fiscal year 2022 numerical allocations. A second lottery took place which selected an additional 27,717 registrations, and a third lottery selected an additional 16,753 registrations, for a total of 131,970 selected registrations in fiscal year 2022.

What happens next?

At this point, USCIS has completed its selection process and sent out non-selection notifications via the myUSCIS online accounts to those petitioners and their attorneys who were not selected for FY 2023.

Continue reading

by

packages-gfaf2c587b_1280
We kickoff the start of a brand new week with some new developments in the world of immigration.

USCIS Transfers Certain H-1B Petitions to the California Service Center

On June 16, 2022, the U.S. Citizenship and Immigration Services announced that certain H-1B petitions, including fiscal year (FY 2023) cap subject H-1B petitions, going through the intake process at the Vermont Service Center (VSC) will be transferred to the California Service Center (CSC) where they will go through data intake and adjudication.

Continue reading

by

approved-gc01ea1702_1280

Did you file an EB-2 National Interest Waiver petition on or before June 1, 2021, and still haven’t received a decision? What about an EB-1 petition as a multinational executive or manager filed on or before January 1, 2021? If so, be prepared for some exciting news!

USCIS recently announced the news we have all been waiting for. The agency will soon allow such applicants to upgrade their petition to Premium Processing Service by filing Form I-907, Request for Premium Processing Service, and paying the required filing fee.

What is this next update all about?

On May 24, 2022, USCIS released a news alert notifying the public that it will expand premium processing service for certain petitioners who have filed a pending Form I-140, Immigrant Petition for Alien Worker under the EB-1 multinational executive/managers and EB-2 NIW immigrant classifications.

Who does this update apply to?

To qualify for premium processing service, you must have applied for your I-140 either under the E13 multinational executive, E13 manager classification, or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW).

Those who fall under the above categories will be eligible to upgrade their petitions by requesting premium processing service and filing Form I-907, Request for Premium Processing Service provided they filed their petitions with USCIS within a certain time period as discussed below.

When can I apply?

  • USCIS will accept premium processing service requests for E13 multinational executive and manager petitions starting June 1, 2022, but only for those E13 executive and manager petitions that were received by USCIS on or before January 1, 2021.
  • Additionally, USCIS will accept premium processing service requests for E21 National interest Waiver petitions, starting July 1, 2022, but only for those E21 NIW petitions that were received by USCIS on or before March 1, 2021.
  • Starting July 1, 2021, USCIS will also accept premium processing service requests, but only for those E13 multinational executive and manager petitions that were received by USCIS on or before March 1, 2021. 

Continue reading

by

woman-g95091901a_1280

USCIS is about to make it a lot easier for certain noncitizens to remain employment authorized. On May 3, 2022, the agency announced a new Temporary Final Rule (TPR) that automatically extends the period of employment authorization on Employment Authorization Documents (EADs) from 180 days up to 540 total days.

The automatic extension time is counted from the expiration date of the employment authorization and/or EAD. This new regulation became effective as of yesterday, May 4, 2022, and will be in effect until October 15, 2025. Once the regulation reaches its time limit, the automatic extension will revert to 180 days.

USCIS decided to issue this new policy to prevent employment interruptions for noncitizens that have pending EAD renewal applications with the agency (Form I-765 Application for Employment Authorization).

Who qualifies for the automatic extension?

The additional extension of up to 540 total days will be available only to renewal applicants who timely file a Form I-765 renewal application with USCIS from the period of May 4, 2022, to October 26, 2023, and who were previously eligible to receive the 180-day automatic extension.

For those who file their Form I-765 renewal application after October 26, 2023, the normal 180-day automatic extension period will apply.

You are eligible for the automatic extension if you:

  • Properly filed Form I-765 for a renewal of their employment authorization and/or EAD before their current EAD expired, and
  • Were otherwise eligible for a renewal, meaning that:
    • Their renewal application is under a category that is eligible for an automatic extension (see the list of categories below); and
    • The Category on their current EAD matches the “Class Requested” listed on their Form I-797C Notice of Action, Receipt Notice. (Note: If you are a Temporary Protected Status (TPS) beneficiary or pending applicant, your EAD and this Notice must contain either the A12 or C19 category, but the categories do not need to match each other. In addition, for H-4, E, and L-2 dependent spouses, an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status (including E-1S, E-2S, E-3S, and L-2S class of admission codes) must accompany Form I-797C when presenting proof of employment authorization to an employer for Form I-9, Employment Eligibility Verification, purposes).

Which categories are eligible?

You must be in one of the following employment eligible categories to be eligible to receive an automatic extension of up to 540 days and your renewal application must be timely filed by October 26, 2023:

Continue reading