Visa Lawyer Blog

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We kick off the start of a brand-new week with the latest in the world of immigration. This week we are excited to announce new H-1B FY 2023 cap season updates — the lottery is now complete!

H-1B Fiscal Year 2023 Season Updates

As our readers will know, the mandatory electronic registration period for the H-1B fiscal year 2023 season kicked off on March 1, 2022, and ended on March 18, 2022.

We had expected USCIS to notify all H-1B petitioners of selection by April 1st (the earliest date when H-1B cap-subject petitions for FY 2023 can be filed). However, news of selection came much quicker.

On March 29, 2022, USCIS announced that the H-1B FY 2023 cap was reached, and that enough registrations were also received for the advanced degree exemption (U.S. master’s cap). From these registrations, USCIS selected petitioners at random to be eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Petitioners will need to login to their USCIS online accounts to check the status of their registration.

If you were not selected in the FY 2023 cap the following status will be shown in your online account:

  • Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

If you were one of the lucky winners of the FY 2023 cap the following status will be shown:

  • Selected: Selected to file an H-1B cap petition.

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In this blog post, we share exciting news in the world of immigration law. On March 29, 2022, the United States Citizenship and Immigration Services (USCIS) released a much-anticipated announcement explaining the actions it will take to reduce the substantial backlog, and new policy changes that will be implemented to cut down processing times significantly.

The agency has outlined 3 main initiatives that will drastically improve processing times at the USCIS level across the board.

  1. USCIS has announced that it will be setting agency-wide backlog reduction goals
  2. Expansion of Premium Processing Service to other types of immigration petitions and
  3. Improving timely access to Employment Authorization Documents (EADs)

Backlog Reduction Initiatives

USCIS will be establishing a new system of “internal cycle time goals,” which are internal metrics that the agency will now be using to help guide the reduction of the current backlog and will determine how long it will take USCIS to process immigration benefits going forward.

The agency will be making certain efforts such as increasing its capacity, implementing technological improvements, and expanding staffing to improve these “cycle times,” so that processing times will be much quicker. USCIS expects these goals to be accomplished by the end of fiscal year 2023.

Cycle times explained

USCIS has stated that publicly, it releases processing times showing the average amount of time it takes the agency to process a particular form – from when the agency received the application until a decision was made on the case.

However, USCIS has said that it also utilizes internal mechanisms to monitor the number of pending cases in the agency’s workload through a metric called “cycle times.” A cycle time measures how many months’ worth of pending cases for a particular form are awaiting a decision.

According to USCIS, cycle times are generally comparable to the agency’s publicly posted median processing times. Cycle times are what the operational divisions of USCIS use to gauge how much progress the agency is, or is not, making on reducing the backlog and overall case processing times.

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In this blog post, we share with you some recent updates for the Temporary Protected Status (TPS) program. On March 16, 2022, Secretary Alejandro Mayorkas announced the designation of Afghanistan for Temporary Protected Status (TPS) for a period of 18 months.

What is Temporary Protected Status?

Temporary Protected Status (TPS) is a statutorily authorized program established by the United States Congress in 1990. The program allows migrants whose home countries are considered unsafe, the right to live and work in the United States for a temporary, but extendable, period of time. Though they are not considered lawful permanent residents (green card holders) or U.S. citizens, they are authorized to live in the United States without fear of deportation under temporary protected status. Applicants may also apply for employment authorization by filing Form I-765 Application for Employment Authorization with USCIS along with their application for TPS.

A country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions.

Afghanistan’s recent designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Afghanistan that prevent Afghan nationals, from returning safely.

Who can apply?

Individuals eligible for TPS under this designation must have continuously resided in the United States since Tuesday, March 15, 2022. Eligible applicants must be a national of Afghanistan or a person without nationality who last habitually resided in Afghanistan.

Any Afghan nationals who attempt to travel to the United States after Tuesday, March 15, 2022, will not be eligible for Temporary Protected Status.

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The ongoing turmoil in Ukraine, Afghanistan, and Ethiopia has prompted the U.S. Department of State to issue new guidance regarding the possibility of filing a Form I-130 Petition for Alien Relative at U.S. Embassies and Consulates overseas for Afghan, Ethiopian, and Ukrainian immediate relatives fleeing conflict zones.

DOS has clarified that U.S. Citizens who are physically present with their Afghan, Ethiopian, or Ukrainian, immediate family members overseas, who have not yet filed the Form I-130 Petition for Alien Relative with the United States Citizenship and Immigration Services (USCIS), may do so by filing the application locally at their nearest U.S. Embassy or Consulate that processes immigrant visas.

Only U.S. Citizens impacted by the large-scale disruptive events in Afghanistan, Ethiopia, and Ukraine, are allowed to locally file Form I-130 at U.S. Embassies or Consulates overseas. It is required that the U.S. Citizen be physically present in the country where they wish to file their petition.

Who can you petition for with Local Filing?

DOS has stated that U.S. Citizens may locally file Form I-130 on behalf of their spouses, unmarried children under the age of 21, and parents, provided their relative fled:

  • Afghanistan after August 2, 2021
  • Ethiopia after November 1, 2020 or
  • Ukraine after February 1, 2022

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Welcome back to Visalawyerblog! We kick off the start of a brand-new week with some long awaited and very happy news for EB-5 immigrant visa investors wishing to participate in the Regional Center program.

As you may know, the EB-5 Regional Center Program is a statutorily authorized program that must be extended by Congress in order to operate. Unfortunately, for months on end, members of Congress failed to pass a bill to reauthorize the Regional Center program leaving thousands of prospective applicants in limbo, and those waiting to file green cards with big worries. Following the program’s expiration at midnight on June 30, 2021, it remained in a period of lapse amid negotiations within Congress for a new government appropriations funding bill to be passed to extend the program.

As luck would have it on March 10, 2022, Congress reauthorized the EB-5 Regional Center Program through fiscal year 2027 in appropriations legislation passed by the government. While this is a big relief for many would-be Regional Center investors, the new legislation has also introduced some important changes to the program.

The EB-5 Reform and Integrity Act of 2022, as it is called has resurrected the EB-5 Regional Center Program until September 30, 2027, but introduces some new increases in the minimum EB-5 investments.

Once enacted, the new law will increase the new minimum investment amount to $1,050,000 for standard EB-5 investments (from the previous minimum investment of $1,000,000); $800,000 for investments in Targeted Employment Areas (TEAs) (from the previous $500,000 investment); and $800,000 for minimum investment for infrastructure projects. New changes also allocate a portion of the EB-5 immigrant visa quota to investments in rural areas, high unemployment areas, and infrastructure projects.

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It is that time of the month again! In this blog post, we will cover the release of the April Visa Bulletin 2022 and what you can expect for employment based and family preference categories during the month of April 2022.

The Department of State releases the visa bulletin on a monthly basis, which summarizes the availability of immigrant visa numbers for that particular month. The “Final Action Dates” and “Dates for Filing Applications,” charts indicate when immigrant visa applicants should be notified to assemble and submit the required documentation to the National Visa Center.

Adjustment of Status Filing Chart April 2022

For Family-Sponsored Filings:

Pursuant to guidance released by USCIS, for all family-sponsored preference categories, applicants must use the Dates for Filing Chart in the Department of State Visa Bulletin for April 2022.

For Employment-Based Preference Filings:

All applicants, except EB-5 Regional Center, falling under employment-based preference categories, must use the Dates for Filing chart in the Department of State Visa Bulletin for April 2022.

April 2022 Visa Bulletin Final Action Cutoff Dates

Employment-Based Categories

FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

According to the Department of State’s April 2022 Visa Bulletin, the following final cutoff dates will apply for the issuance of an immigrant visa for employment-based categories:

  • EB-1: All countries, including India and China, will remain current.
  • EB-2: India will advance by more than 2 months to July 8, 2013, and China will remain at March 1, 2019. All other countries will remain current.
  • EB-3 Professionals and Skilled Workers: EB-3 India and China will remain unchanged from the previous month, at January 15, 2012, and March 22, 2018, respectively. All other countries will remain current.
  • EB-5: The Non-Regional Center program will be current for all countries, including China. The Regional Center program has been reauthorized by recent legislation but is still listed as Unavailable in the April Visa Bulletin Final Action Date chart, given that certain provisions of the reauthorizing legislation have not yet taken effect.

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We are happy to start this week with interesting new developments in the world of immigration law.

As some of our readers may be aware, all green card applicants filing Form I-485 Application to Register Permanent Residence or Adjust Status, are given the opportunity to file the Form I-765 Application for Employment Authorization, and Form I-131 Application for Travel Document, along with their green card application (or separately at a later time), in order to receive what has been commonly referred to as an employment authorization document (EAD) and advance parole (AP) “combo” card.

With this “combo” card, green card applicants have engaged in lawful employment inside of the United States, and cards with the notation ‘Serves as I-512 Advance Parole’ have been used to re-enter the U.S. after temporary foreign travel.

That is all about to change. USCIS has announced that in an effort to drastically reduce the processing times associated with EAD and AP documents, the agency will now be discontinuing its policy of issuing the “combo” card.

Going forward, U.S. Citizenship and Immigration Services will be separating the issuance of the employment authorization document (EAD card) and advance parole (AP) document. This means that green card applicants that file the Forms I-765 and I-131 together with their green card (or at a later time) can expect to receive two separate documents in the mail, instead of one single combo card.

EADs that do not have the notation ‘Serves as I-512 Advance Parole,’ can only be used for employment purposes. Green card applicants wishing to return to the U.S. after temporary foreign travel must have a valid Advance Parole document. Applicants should not engage in international travel without such document.

Substantial Backlogs

USCIS has made this change to help alleviate the substantial processing times of EAD and AP documents during the Coronavirus pandemic. Unfortunately, these delays have caused employment interruptions for thousands of applicants who have had to wait many months for these applications to be approved.

Presently, the Nebraska Service Center is currently reporting processing times of between 11.5 to 13.5 months for an EAD to be issued based on a pending adjustment of status application. While the California Service Center is currently reporting a wait period of between 20 months to 21.5 months.

This lengthy waiting period has prompted USCIS to take action to separate issuance of the EAD and AP, in what will hopefully result in faster processing times.

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We have some breaking news for Ukrainian nationals. In a swift and unprecedented move, the Department of Homeland Security, today announced the designation of Ukraine to receive Temporary Protected Status (TPS) for an 18-month period.

What is Temporary Protected Status?

Established by the U.S. Congress in 1990, temporary protected status (TPS) is a program that allows migrants whose home countries are considered unsafe, the right to live and work in the United States for a temporary, but extendable, period of time. Though they are not considered lawful permanent residents (green card holders) or U.S. citizens, they are authorized to live in the United States without fear of deportation under temporary protected status. Applicants may also apply for employment authorization by filing Form I-765 Application for Employment Authorization with USCIS along with their application for TPS.

A country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions.

Ukraine’s designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Ukraine that prevent Ukrainian nationals, and those of no nationality who last habitually resided in Ukraine, from returning to Ukraine safely.

Who can apply?

Individuals eligible for TPS under this designation must have continuously resided in the United States since Tuesday, March 1, 2022. Eligible applicants must be a national of Ukraine or a person without nationality who last habitually resided in Ukraine.

Any Ukrainian nationals who attempt to travel to the United States after Tuesday, March 1, 2022, will not be eligible for Temporary Protected Status.

Ukraine’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for Temporary Protected Status, and an Employment Authorization Document (EAD).

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Today, Americans woke up to the tragic news of Russia’s targeted attack on Ukraine, adding to increased anxieties surrounding the already uncertain global climate during the COVID-19 pandemic.

To provide some relief in these unprecedented circumstances, the U.S. government and Centers for Disease Control (CDC) have amended their regulations to determine that it is in the national interest to permit the entry of Ukrainian noncitizen nonimmigrants who (1) are traveling with a U.S. citizen or lawful permanent resident; (2) were physically present in Ukraine as of February 10, 2022; and (3) possess valid travel documents allowing them to travel to the United States.

For their part, the CDC has announced that, based on a request from the U.S. Department of State and consistent with the determination made by the Secretary of Homeland Security, it will exercise its enforcement discretion regarding certain aspects of its “Amended Order: Requirement for Proof of Negative COVID-19 Test Result or Recovery from COVID-19 for All Airline Passengers Arriving into the United States,” and its “Amended Order Implementing Presidential Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic pdf icon[PDF – 52 pages],” effective immediately.

What does this mean?

The CDC will exercise enforcement discretion effectively immediately for the following groups of individuals, to the extent they were physically present in Ukraine as of February 10, 2022:

U.S. citizens; lawful permanent residents; noncitizens in possession of a valid U.S. immigrant visa; as well as noncitizen nonimmigrants who are traveling with a U.S. citizen or lawful permanent resident and possess valid travel documents allowing them to travel to the United States, known as “covered persons.”

Pursuant to this exercise of enforcement discretion, covered persons will not be required to provide proof of a negative COVID-19 test result prior to boarding a flight to the United States or to complete the attestation at Section 1 of the Combined Passenger Disclosure and Attestation to the United States of America pdf icon[PDF – 7 pages] form.

CDC is requesting that all air carriers cooperate in this exercise of enforcement discretion. Noncitizen nonimmigrants must continue to complete Section 2 of the Combined Passenger Disclosure and Attestation to the United States of America pdf icon[PDF – 7 pages] form attesting to either being fully vaccinated and providing proof of being fully vaccinated against COVID-19 or, if traveling pursuant to an exception, including a national interest exception, that they have made arrangements to receive a COVID-19 test within three to five days of arrival in the United States, to self-quarantine for seven days, to self-isolate in the event of a positive COVID-19 test or the development of COVID-19 symptoms, and to become fully vaccinated for COVID-19 within 60 days of arrival in the United States if intending to stay in the United States for more than 60 days.

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Welcome back to Visalawyerblog! New developments in the world of immigration are happening on a daily basis. In today’s post we cover the status of consular services at the U.S. Embassy in Kyiv, Ukraine.

As you may know, the region has been embroiled in political turmoil with U.S. sanctions on Russia escalating. To protect Americans in the region, the Department of State has announced the departure of all diplomatic employees from the U.S. Embassy in Kyiv.

Beginning February 13th, the Embassy in Kyiv has suspended Consular visa services including interview waiver services. The Department of State has indicated that applicants who had visa appointments in Kyiv can apply for their visas in any other country in which they are physically present, so long as appointments are available. Applicants are advised to contact the U.S. Embassy or Consulate where they wish to apply to inquire about case transfers.

Those with immigrant visas that were pending in Kyiv can request a transfer of their case to another U.S. Embassy by contacting the receiving U.S. Embassy’s country to authorize and initiate the transfer. Each Embassy will have a list of requirements that must be satisfied to initiate the transfer process.

Non-immigrants and immigrant visa holders must continue to abide by the vaccination mandate in order to gain admission to the United States.

Vaccination Mandate

 Effective November 8, all non-citizen, nonimmigrant (not a U.S. citizen, U.S. national, lawful permanent resident, or traveling to the United States on an immigrant visa) airline passengers traveling to the United States, must demonstrate proof of vaccination as defined by the U.S. Centers for Disease Control and Prevention (CDC) Director Order prior to boarding a U.S. bound aircraft. More details regarding what constitutes full vaccination are available on this page of the CDC website.

All travelers to the United States, regardless of vaccination status, must show a pre-departure negative COVID-19 viral test taken within one (1) day of travel to the United States prior to boarding. This applies to all travelers – U.S. citizens, lawful permanent residents (LPRs), and foreign nationals. Additional information may be found on CDC’s website.

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