September Visa Bulletin

Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether a backlog exists for each one.  In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.

For September, U.S. Citizenship and Immigration Services (USCIS) has indicated that for Employment-Based immigration, the “Final Action Dates” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin may file an application for permanent resident status [Form I-485].

In September the EB-1 preference category on the Final Action Chart for all countries including China and India remains “current.” This means the I-485 applications may be filed immediately with the Form I-140. Also, any otherwise qualified national of China or India with an approved EB-1, I-140 may file the I-485 in September.

The EB-2 preference category remains “current” for all countries other than China and India, which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.

The EB-3 preference category is also “current” for all countries other than China and India. In August, the final action dates for EB-3 preference categories for Chinese and Indian nationals were April 22, 2018 and February 15, 2012, respectively. They have remained the same for September. 

The EB-5 preference category was recently reformed under the EB-5 Reform and Integrity Act and the visa bulletin includes three new categories for EB-5 processing. All EB-5 preference categories are “current” except for EB-5 Unreserved (I5 and R5) for China, which shows a final action date of December 22, 2015.

The complete Visa Bulletin, including priority dates for family-based immigrant applications, can be found on the Department of State website.

If you have questions about planning, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).

Click here to see complete September Visa Bulletin.

Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022)

On August 4, 2021, the Board of Immigration Appeals (BIA) held that the Immigration Judge erred in denying the plaintiff’s motion to terminate based on receiving defective notice.  

The BIA decision states that “On March 1, 2021, the Department of Homeland Security (“DHS”) personally served a notice to appear on the respondent. The notice to appear ordered the respondent to appear before an Immigration Judge at the Boston Immigration Court at a date and time “to be set”…At the May 6, 2021, hearing, the respondent expressly declined to concede proper service of the notice to appear and requested an opportunity to submit a motion to dismiss because the notice to appear did not specify the date and time of the initial hearing.”

“The Immigration Judge did not address the adequacy of the notice to appear.  Instead, he found that the respondent was removable as charged and afforded him an opportunity to submit a written brief.  On May 25, 2021, the respondent filed a motion…arguing that the notice to appear was defective because it lacked date and time information.  DHS filed an opposition to the motion. On June 17, 2021, the Immigration Judge denied respondent’s motion and ordered him removed.”

The BIA remanded the case to the Immigration Judge to remedy the deficient notice to appear based on the following:  

“(1) The time and place requirement in section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1) (2018), is a claim-processing rule, not a jurisdictional requirement.

(2) An objection to a noncompliant notice to appear will generally be considered timely if it is raised prior to the closing of pleadings before the Immigration Judge.

(3) A respondent who has made a timely objection to a noncompliant notice to appear is not generally required to show he or she was prejudiced by missing time or place information.

(4) An Immigration Judge may allow the Department Homeland Security to remedy a noncompliant notice to appear without ordering the termination of removal proceedings.”

Dor v. Garland

On August 19, 2022, the First Circuit Court held that the BIA’s analysis of the petitioner’s prior offenses incorrectly applies the factors for determining whether a criminal offense is “particularly serious” for the purpose of determining eligibility for relief established in Matter of Frentescu. 

The holding states that "Petitioner, Jonalson Dor ("Dor"), seeks judicial review of a Board of Immigration Appeals ("BIA") decision affirming an immigration judge's ("IJ") decision to deny Dor's applications for relief from removal based on two marijuana offenses that the IJ and BIA found, for different reasons, to be "particularly serious" pursuant to 8 U.S.C. §§ 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii). Before us, Dor argues that the BIA failed to conduct the appropriate analysis to reach its particularly-serious-crime conclusion. The government urges that we shouldn't even reach Dor's substantive challenges due to his petition's jurisdictional defects, but even if we can find our way to the merits, the government maintains the BIA's decision was correct. We find we have jurisdiction to review the petition. And, having undertaken that review, we remand to the BIA for further proceedings consistent with this opinion.”

The First Circuit concludes that “The BIA's particularly-serious-crime conclusion is devoid of any actual application of the Frentescu factors, and even if we considered it a solid application of the law to Dor's case, we still do not have a sufficiently rational explanation of the BIA's particularly-serious-crime conclusion as to Dor's minor marijuana offenses, and a rational explanation is necessary to ensure Dor was appropriately precluded from obtaining the humanitarian relief he seeks. ... For the foregoing reasons, we grant Dor's petition and remand for further proceedings consistent with this opinion."

Rivera-Medrano v. Garland

On August 26, 2022, the First Court of Appeals reversed a Board of Immigration Appeals order affirming the denial of an applicant’s request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture ("CAT"), 8 C.F.R. §§ 1208.16(c)–1208.18. 

The decision states that “Karen Elizabeth Rivera-Medrano, a citizen and native of El Salvador, has petitioned for review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of her request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture ("CAT"), 8 C.F.R. §§ 1208.16(c)–1208.18, and denying her motion to remand this case to the immigration judge ("IJ") based on newly obtained evidence. We conclude that the BIA abused its discretion in denying her motion to remand. Accordingly, we grant the petition for review, vacate, and remand for further proceedings."

The First Circuit Court held that the BIA abused its discretion in denying her motion to remand.  In its denial, the BIA did not find that the new evidence was unreliable and did not specify any other reason that the evidence “should not be credited”.   The holding also states that “The BIA's oversight is particularly significant here, where the credibility determination rested considerably on minor inconsistencies in what the IJ concluded was an otherwise credible presentation."  The First Circuit remanded the case to the BIA to determine whether the new evidence was material and previously unavailable to Ms. Rivera-Medrona, and that she has made a prima facie showing of eligibility for relief.  If the BIA finds that this is the case, the First Circuit decision states that the case must be remanded to the immigration judge.  

Attorneys Desai and Walsh presenting at the 2022 NAFSA Region XI Conference this Fall.

IDC Attorneys Desai and Walsh are presenting at the 2022 NAFSA Region XI Conference this Fall.

DHS Proposes Alternative Form I-9 Procedures

On August 18, 2022, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would grant it broader authority to permit alternative document inspection procedures for I-9 document verification in lieu of the physical inspection requirement.  This proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures with respect to some or all employers. Such procedures could be implemented as part of a pilot program, or upon the Secretary's determination that such procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services pursuant to Section 319 of the Public Health Service Act, or a national emergency declared by the President pursuant to Sections 201 and 301 of the National Emergencies Act. This proposed rule would allow employers (or agents acting on an employer's behalf) optional alternatives for examining the documentation presented by individuals seeking to establish identity and employment authorization for purposes of completing the Form I-9.

The proposed rule describes how DHS may implement future document inspection procedure changes, including:

• limiting implementation only to employers enrolled in E-Verify

• updating document retention requirements

• changing the Form I-9 to allow employers to clearly note the use of alternative examination procedures

The public will have a 60-day comment period to provide feedback on the proposal as well as comments on how DHS may use this additional authority to make I-9 document inspection easier for employers.

USCIS issued policy guidance in the USCIS Policy Manual to clarify how USCIS determines eligibility for L-1 nonimmigrants seeking classification

On August 16, 2022, U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance in the USCIS Policy Manual to clarify how USCIS determines eligibility for L-1 nonimmigrants seeking classification as managers or executives or specialized knowledge workers.

L-1 nonimmigrant status is available to employees of a qualifying organization who are either executives or managers (L-1A) or employees with specialized knowledge (L-1B).  The policy manual update is not intended to change existing policy or create new policy, but instead consolidates and updates guidance that was previously contained in the Adjudicator’s Field Manual (AFM) Chapter 32, as well as related AFM appendices and policy memoranda.  This guidance, contained in Volume 2 of the Policy Manual, is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance.

DOL Announces $7.2 Million Investment in PERM System

On August 24, 2022, the Office of Foreign Labor Certification announced the receipt of an investment from the Technology Modernization Fund for the purpose of improving the Permanent Labor Certification Program.  The $7.2 million TMF investment will improve DOL’s permanent labor certification services, helping to increase efficiency, improve customer experience, and address fraud and security risks overall.  This investment will aid in integrating the permanent labor certification process into the Foreign Labor Application Gateway (flag.dol.gov) with the intent of making the process “easier, faster, and cheaper for employers to access permanent labor certification services and create a more seamless immigrant visa processing experience.”

The Technology Modernization Fund is working to transform the way the government uses technology to deliver for the American public in an equitable, secure, and user-centric way. The TMF invests in technology projects across government, providing incremental funding, technical assistance, and oversight throughout execution to ensure the success of its investments.

FY2023 H-1B Cap Reached

On August 23, 2022, USCIS announced that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.

USCIS has completed sending non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, will now show:

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

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2023 H-1B cap. We will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;

• Change the terms of employment for current H-1B workers;

• Allow current H-1B workers to change employers; and

• Allow current H-1B workers to work concurrently in additional H-1B positions.

If you were not selected this year and have questions about H-1B alternatives, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).

USCIS’ Pandemic Signature Policy is Now Permanent

On July 25, 2022, U.S. Citizenship and Immigration Services announced that it is extending certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors.  

In particular, USCIS is evaluating which of the pandemic-era flexibilities should remain permanent, and due to this, the “reproduced signature” flexibility announced in March 2020, will become permanent policy on July 25, 2022.  Under this policy, USCIS has been accepting petitions and applications with “electronically reproduced signatures”, meaning a scan, fax, photocopy, or similarly reproduction of a document provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified.  USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

Additionally, USCIS is extending response deadline flexibilities through Oct. 23, 2022. USCIS will continue to consider a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and Oct. 23, 2022, inclusive:

• Requests for Evidence;

• Continuations to Request Evidence (N-14);

• Notices of Intent to Deny;

• Notices of Intent to Revoke;

• Notices of Intent to Rescind;

• Notices of Intent to Terminate regional centers;

• Notices of Intent to Withdraw Temporary Protected Status; and

• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

• The form was filed up to 90 calendar days from the issuance of a decision USCIS made; and

• USCIS made that decision between Nov. 1, 2021, and Oct. 23, 2022, inclusive.

Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and Oct. 23, 2022