Visa Lawyer Blog

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Yesterday, February 14, 2024, the Biden administration released a memorandum designating Palestinians present in the United States for Deferred Enforced Departure (DED), based on the danger to civilians and deteriorating humanitarian conditions in Gaza.

The President’s order halts the removal of certain Palestinians from the United States for a period of 18 months and instructs the Department of Homeland Security to provide employment authorization to eligible beneficiaries, who have been continuously present in the United States since February 14, 2024.

The memorandum would allow DHS to provide employment authorization to such individuals for the duration of the DED period, and further directs the Secretary of Homeland Security to consider expanding employment eligibility for Palestinian F-1 nonimmigrant students.

The President’ s memorandum will soon be published in the Federal Register with further instructions for eligible Palestinian nationals to request Deferred Enforced Departure and employment authorization.

Please note that Palestinians who return to the Palestinian territories after February 14, have committed certain crimes, or present a national security threat, among others, may not be eligible for Deferred Enforced Departure.

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The March 2024 Visa Bulletin is finally here, and with it we have big advancements in the family sponsored preference categories, and minor advancements in the employment-based categories.

Highlights of the March 2024 Visa Bulletin

Dates for Filing Chart

The Dates for Filing Chart remains unchanged from the previous month, for both the family sponsored and employment-based categories, with the exception of the employment-based fourth preference category, EB-4 which will advance by 4 months to January 1, 2020.

Employment-based categories

Movement in the Final Action Dates

The Final Action Dates Chart shows some modest advancements in some of the employment-based preference categories, specifically:

  • EB-1 China will advance by two weeks to July 15, 2022
  • EB-1 India will advance by 1 month to October 1, 2020
  • EB-2 Worldwide, Mexico, and the Philippines will advance by 1 week to November 22, 2022
  • EB-3 Worldwide, Mexico, and the Philippines will advance by 1 week to September 8, 2022
  • EB-3 Other Workers, Worldwide and Mexico will advance by 1 week to September 8, 2020
  • EB-4 will advance by more than 6.5 months to December 1, 2019

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In this blog post, we share with you some new updates for the H-1B cap season for fiscal year 2025 and beyond.

 H-1B Cap Initial Registration Period FY 2025

USCIS has announced that the initial registration period for the FY 2025 H-1B cap season will open at noon Eastern time on March 6, 2024, and run through noon Eastern time on March 22, 2024.

During the registration period, prospective petitioners and their representatives, must use a USCIS online account to register each beneficiary electronically for the selection process and pay the associated registration fee for each beneficiary.

For more information on the H-1B Cap Season, visit H-1B Cap Season webpage.

Organizational Accounts and Online Filing for Forms I-129 and I-907

On February 28, 2024, USCIS will launch new organizational accounts in the USCIS online account webpage that will allow multiple people within an organization and their legal representatives to collaborate on and prepare H-1B registrations, H-1B petitions, and any associated Form I-907, online.

Also on February 28, USCIS will launch online filing of Form I-129 and associated Form I-907 for non-cap H-1B petitions.

Online Filing of H-1B Cap Petitions and I-907 Starting April 1, 2024

On April 1, 2024, USCIS will begin accepting online filing for H-1B cap petitions and associated Forms I-907 for petitioners whose registrations have been selected.

Petitioners will continue to have the option of filing a paper Form I-129 H-1B petition and any associated Form I-907 if they prefer. However, during the initial launch of organizational accounts, users will not be able to link paper-filed Forms I-129 and I-907 to their online accounts.

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On January 30, 2024, the U.S. Citizenship and Immigration Services (USCIS) published a final rule in the Federal Register making significant fee increases for various immigration applications and benefit requests. This fee increase will be the first major adjustment in the filing fees since 2016. The increase is meant to address the agency’s operational and financial challenges to support the timely processing of new applications.

The fee increase will take effect starting April 1, 2024. All applications postmarked after this date will be subject to the fee increases in the final rule.

TIP: To avoid paying the higher fees, USCIS must receive applications before April 1, 2024.

Highlights

  • Form I-130 (Petition for Alien Relative), used to petition for family members, including marriage green cards, will increase by 26% to $675 for paper filing, and $625 for online filers.
  • Form I-129F (Petition for Alien Fiancé(e)), used by U.S. Citizens to petition for their fiancé(e) to enter the U.S., will increase by 26 percent from $535 to $675
  • Form I-485 (Application to Register Permanent Residence or Adjust Status), used by immigrants seeking a green card for permanent residency, will increase by 18% from $1,225 to $1,440. Employment authorization, and advance parole, will now cost an additional $260 and $630, respectively. Previously these applications carried no additional cost when filing them alongside adjustment of status applications

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Exciting news! On January 24, 2024, the U.S. Citizenship and Immigration Services (USCIS) announced a new update to its Policy Manual, which clarifies that officers have the discretionary power to excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request, if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.

In general, USCIS does not approve an extension of stay or change of status for a person who failed to maintain their status or where such status expired before the filing date of the application or petition. If certain conditions are met, however, USCIS, in its discretion, may excuse the failure to file before the period of authorized stay expired.

The new update appears in Chapter 4. Section A. Extension of Stay or Change of Status, which includes a new subsection entitled “Requirements to Timely File a Request to Extend Stay or Change Status.”

It clarifies that USCIS may excuse a failure to file before the period of authorized status expires, where the requestor demonstrates in their request that:

  • The delay was due to extraordinary circumstances beyond the person’s control;
  • The length of the delay was commensurate with the circumstances;
  • The person has not otherwise violated their nonimmigrant status;
  • The person remains a bona fide nonimmigrant; and
  • The person is not the subject of removal proceedings and, in the case of extensions of stay, is also not the subject of deportation proceedings.

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In this blog post, we provide new insights recently shared by Charlie Oppenheim, the former Chief of Immigrant Visa Control and Reporting at the U.S. Department of State, who oversaw the monthly publication of the Visa Bulletin until his retirement in 2022.

In a recent Chatting with Charlie webinar, he provided his expertise regarding the future movement of the employment based and family preference categories on the Visa Bulletin.

The Dates for Filing for the employment based and family sponsored preference categories have remained the same since the publication of the October Visa Bulletin with no forward movement to be seen.

In the month of February, the Final Action Dates progressed only slightly as follows:

Employment-based

  • EB-2 Worldwide advanced by two weeks to November 15, 2022
  • EB-3 India advanced by one month to July 1, 2012
  • EB-3 all other countries advanced by one month to September 1, 2022 (except China)
  • EB-5 China (Unreserved) advanced by one week to December 15, 2015.

Family-sponsored

  • F2A all categories (except Mexico) advanced by more than 3 months to February 8, 2020
  • F2A Mexico advanced by more than 3 months to February 1, 2020

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According to recent data released by the U.S. Citizenship and Immigration Services (USCIS), applications for U.S. Citizenship surpassed pre-pandemic levels in fiscal year 2023, welcoming 878,500 new citizens from all over the world.

To be eligible for naturalization, applicants must meet certain eligibility requirements set forth in the Immigration and Nationality Act (INA).

The requirements generally include being a lawful permanent resident (LPR) for at least five years or at least three years for spouses of U.S. Citizens. Applicants must establish that they have good moral character, have continuously and physically resided in the United States as a green card holder, be proficient in basic spoken and written English, pass the required civics and English examination, among other requirements. Please note that there are other special naturalization provisions that exempt certain applicants, including certain spouses of U.S. citizens and applicants with military service, from one or more of the general requirements for naturalization.

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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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