Visa Lawyer Blog

Articles Posted in Professionals

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The February 2024 Visa Bulletin was recently published by the Department of State.

While the Dates for Filing Chart remains unchanged from the previous month, the Final Action Dates Chart shows some modest advancements in some of the employment-based preference categories, specifically EB-1 worldwide continues to be current, EB-2 Worldwide will advance by two weeks to November 15, 2022, EB-3 Professional and Skilled Workers, India will advance by one month to July 1, 2012, and the rest of the world will advance by one month to September 1, 2022. EB-5 India will advance by one week to December 15, 2015, while the rest of the world will remain current.

For family-sponsored categories, the Final Action Dates for F2A Worldwide, F2A China, F2A India, and F2A Philippines will advance by more than 3 months to February 8, 2020, while F2A Mexico will advance to February 1, 2020. The February Dates for Filing remain the same as the previous month.

Whether you are applying for an immigrant visa at a U.S. Consulate overseas or applying for adjustment of status to permanent residence in the United States, you won’t want to miss these new updates.

Highlights of the February 2024 Visa Bulletin

Employment-based categories

  • The February Dates for Filing remain the same as January 2024

Final Action Dates

  • EB-1 India: The EB-1 India Final Action Date will remain at September 1, 2020.
  • EB-1 China: The EB-1 China Final Action Date will remain at July 1, 2022
  • EB-1 Worldwide: All other countries will remain current.
  • EB-2 India: The EB-2 Final Action Date for India will remain at March 1, 2012
  • EB-2 China: The EB-2 China Final Action Date will remain at January 1, 2020.
  • EB-2 Worldwide: Final Action Dates for the remaining countries in EB-2 will advance by two weeks, to November 15, 2022.
  • EB-3 Professional/Skilled Workers: The EB-3 Professional/Skilled Worker Final Action for China, will remain at September 1, 2020. India will advance by one month to July 1, 2012. Final Action Dates for the remaining countries in the category will advance by one month to September 1, 2022.

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On January 5, 2024, the U.S. Citizenship and Immigration Services (USCIS) released updated policy guidance describing how the agency analyzes an employer’s ability to pay the offered wage to prospective employees with employment-based immigrant petitions requiring a job offer, filed with USCIS under the first, second, and third preference categories, also known as EB-1, EB-2, and EB-3.

Specifically, the policy guidance clarifies how an employer’s ability to pay will be demonstrated where a beneficiary of a pending Form I-140 Immigrant Petition for Alien Worker, decides to change to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21).

As a general matter, employers must be able to demonstrate their continuing ability to pay the offered wage to employees with petitions filed under the employment first, second, and third preference categories (EB-1, EB-2, EB-3) starting from the priority date of the underlying I-140 petition, until the beneficiary receives lawful permanent resident status (a green card).

Under the updated guidance, when an employee moves to a new employer under AC-21 while the underlying I-140 petition is still pending, USCIS will determine whether the petitioner meets its ability to pay requirement by only reviewing the facts in existence at the time of filing. This means that, USCIS will only consider initial evidence submitted with the petition (and any responses to Requests for Evidence) to determine if the petitioner has established its ability to pay from the priority date to the date of filing the I-140 petition.

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As the new year approaches, we have some unfortunate news to report for certain employment-based applicants who may wish to file their petitions with premium processing service in 2024, including those filing:

  • Form I-129 Petition for a Nonimmigrant Worker
  • Form I-140 Immigrant Petition for Alien Worker, as well as
  • Certain applicants filing Form I-765 Application for Employment Authorization and
  • I-539 Application to Extend or Change Nonimmigrant Status with USCIS.

On December 28, 2023, USCIS published a final rule in the Federal Register that will increase the filing fee for Form I-907, Request for Premium Processing Service, to adjust for inflation.

The final rule states that starting February 26, 2024, the Department of Homeland Security (DHS) will increase the premium processing fees USCIS charges for all eligible forms and categories to reflect the amount of inflation from June 2021 through June 2023 according to the Consumer Price Index for All Urban Consumers.

Please note that not all petitions are eligible to request premium processing service. Applicants may only request premium processing if USCIS has specifically designated your classification as one that is eligible for premium processing service. To determine whether premium processing is available for your benefit request please review the USCIS webpage.

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The January 2024 Visa Bulletin is finally here, and with it some big advancements for the employment-based preference categories in the New Year, specifically for India and China, and some promising forward movement in the Final Action Dates for EB-2 Worldwide and EB-3 Professional/Skilled Workers Worldwide.

For family-sponsored categories, the New Year brings big advancements in the Final Action Dates for F2A Mexico, F2 Worldwide, F2B Mexico, F3 Mexico, F3 Worldwide, and modest advancements for F4. The Dates for Filing remain the same as December.

Whether you are applying for an immigrant visa at a U.S. Consulate overseas or applying for adjustment of status to permanent residence in the United States, you won’t want to miss these new updates.

Highlights of the January 2024 Visa Bulletin

Employment-based categories

  • EB-1 India: The EB-1 India Final Action Date will advance by three years and eight months, to September 1, 2020, and the Date for Filing will advance by a year and a half, to January 1, 2021.
  • EB-1 China: The EB-1 China Final Action Date will advance by four and a half months, to July 1, 2022, and the Date for Filing will advance five months, to January 1, 2023.
  • EB-2: The EB-2 Final Action Date for India will advance by two months, to March 1, 2012, and the EB-2 China Final Action Date will advance by approximately nine weeks, to January 1, 2020. Final Action Dates for the remaining countries in EB-2 will advance by three and a half months, to November 1, 2022.
  • EB-3 Professional/Skilled Workers: The EB-3 Professional/Skilled Worker Final Action Dates will advance by over 7 months for China, to September 1, 2020, and by one month for India, to June 1, 2012. Final Action Dates for the remaining countries in the category will advance by eight months, to August 1, 2022.

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It’s a brand-new week full of important updates from the U.S. Citizenship and Immigration Services (USCIS). This time for employment authorization documents (EADs).

Recently, USCIS announced that certain applicants who have filed to renew their employment authorization cards (EADs) on Form I-765, Application for Employment Authorization, may qualify for an automatic extension of their expiring employment authorization and/or employment authorization documents (EADs) while their renewal applications are pending with USCIS.

Beginning October 27, 2023, those who are eligible will receive 180-day automatic extensions of their EADs, including those who have applied for or have received Temporary Protected Status (TPS) or asylum.

Previously, USCIS had passed a regulation that increased the automatic extension period for certain EAD applicants from 180 days to 540 days. This announcement will not impact EADs that were already issued for up to the 540-day period. Those extensions will remain in place. For such individuals, the increased automatic extension will end when they receive a final decision on their renewal application or when the “up to 540-day period” expires (counted from the expiration date of the employment authorization and/or their EAD), whichever comes earlier.

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In this blog post, we summarize the movement of the family-sponsored and employment-based preference categories of the September Visa Bulletin.

This information will be helpful to those applying for an immigrant visa at a U.S. Consulate overseas, and those applying for adjustment of status to permanent residence in the United States.

Overview

What is the Visa Bulletin?

The Department of State releases the visa bulletin on a monthly basis, which summarizes the availability of immigrant visa numbers for that particular month in the employment and family preference categories. The purpose of the visa bulletin is to inform immigrants who are subject to the numerical quota system of when they are eligible to apply for an immigrant visa or adjustment of status application. Applicants can determine their place in line by looking at the priority date on their underlying immigrant petition. Applicants with a priority date that is “current” on the Visa Bulletin can move forward with the immigration process, because that means a visa number is available to them.

What are the preference categories that are subject to the numerical limitations?

The Family Sponsored Preference Categories and their annual limits are as follows:

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

  1. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
  2. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

The Employment-Based Preference Categories and their annual limits are as follows:

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, of which 32% are reserved as follows: 20% reserved for qualified immigrants who invest in a rural area; 10% reserved for qualified immigrants who invest in a high unemployment area; and 2% reserved for qualified immigrants who invest in infrastructure projects. The remaining 68% are unreserved and are allotted for all other qualified immigrants.

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Did you recently file an L-1 petition as an Intracompany Transferee under a previously approved blanket petition? Then you may want to hear about this important new update.

On Thursday August 3, 2023, the U.S. Citizenship, and Immigration Services (USCIS) announced new changes to the way that the agency will be issuing receipts for L-1 nonimmigrant intracompany transferees under a previously approved blanket L petition, including executives, managers, or specialized knowledge professionals.

What’s Changed?

When filing Form, I-129S, nonimmigrant petition based on blanket L Petition, together with Form I-129, Petition for a Nonimmigrant Worker, the petitioner will now receive two notices: the receipt notice and the approval notice (if the petition is approved).

Previously, petitioners would receive a stamped and signed Form I-129S along with the Form I-129 approval notice. USCIS will now do away with this practice.

Moving forward, the petitioner will receive a separate approval notice for the Form I-129S, which will serve as the endorsement.

Significance of the Approval Notice

The I-129S approval notice will serve as evidence that a USCIS officer has determined the beneficiary is eligible for L-1 status based on an approved blanket L petition and constitutes an endorsement of Form I-129S as required by 8 CFR 214.2(l)(5)(ii)(E). A copy of that notice will also be provided to the beneficiary to be included with their visa and/or admission papers.

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The news we have all been waiting for is finally here. Today, July 31, 2023, the U.S. Citizenship, and Immigration Services (USCIS) announced that they have conducted a second lottery to select from previously submitted electronic registrations to reach the FY 2024 numerical cap.

At this time, USCIS has notified all prospective petitioners with selected registrations from this round of selection (the second lottery) that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Only petitioners with selected registrations are eligible to file H-1B cap-subject petitions for FY 2024, and only for the beneficiary named in the applicable selected registration notice.

Please see the information below for a reminder about what you can expect now that the second lottery has been completed.

How will I know if I was selected in the second lottery?

Petitioners with selected registrations will have their myUSCIS online accounts updated to include a selection notice, which includes details of when and where to file. If you submitted your electronic registration with the assistance of an attorney, you must contact your legal representative/case manager to determine whether you were selected in the second randomized lottery.

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Did you participate in the H-1B electronic registration for Fiscal Year 2024? If so, we have some exciting news for you.

On Thursday, July 27, 2023, USCIS issued a news alert informing the public that they will conduct a second H-1B lottery to select additional H-1B registrations to reach the fiscal year (FY) 2024 H-1B numerical allocations, including the advanced degree exemption.

As our readers may recall, USCIS conducted its initial lottery in March of 2023, selecting a total of 110,791 registrations to meet the annual H-1B numerical cap for fiscal year 2024. Registrants had about a 14.6% chance of being selected in the initial lottery.

When will the second lottery take place?

In its announcement, USCIS has said that it they will soon select from previously submitted electronic registrations to reach the FY 2024 numerical allocations through a randomized selection process, aka “the second lottery.” However, a date has not been disclosed.

This means that in the coming weeks, petitioners or their authorized representatives should keep an eye out on their myUSCIS online accounts to know if they were selected in the second lottery.

Once the second lottery has taken place, USCIS will make an official announcement on its webpage indicating the lottery’s completion. At that point, USCIS will notify all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

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