F and M student visas can now be issued up to 365 days in advance of the I-20 program start date

The State Department announced on February 21st, 2023 that  F or M visas for new students can be issued up to 365 days in advance of the start date for a course of study.  Previously, students were only able to obtain F or M visas up to 120 days ahead of their program start dates. However, F and M visa holders will not be allowed to enter the United States on these visas more than 30 days before the start date.

The State Department’s overview of these student visa categories can be found here.

State Department has announced a pilot program for stateside visa renewals

On February 9th, 2024, Deputy Assistant Secretary for visa services in the Bureau of Consular Affairs Julie Stufft stated in an interview with Bloomberg Law that the State Department will be launching a pilot program later this year to offer visa renewal options within the U.S. to certain temporary visa holders.  Currently, all temporary visa holders are required to go abroad to renew their visa stamps.  Stateside visa renewals were available before being discontinued in 2004.  

The State Department has not yet offered any details about the timeline for implementing this procedure for domestic visa renewals. 

In the meantime, the State Department has continued to offer interview waivers for certain nonimmigrant visa applicants seeking to renew their visas abroad.   More information about visa waiver eligibility from AILA can be found here.

Biden administration rolls out new asylum restrictions

On February 21st, 2023, the Biden Administration announced new restrictions on asylum eligibility for migrants arriving at the U.S. border.  Under this proposed rule, asylum seekers who cross the southwest border of the U.S. without authorization and “without having (1) availed themselves of existing lawful processes, (2) presented at a port of entry in compliance with the rule’s requirements, or (3) been denied asylum in a third country through which they traveled, would be presumed ineligible for asylum unless they meet certain limited exceptions.”  Applicants who are unable to show a valid claim to protection under the rule will be subject to prompt removal and may be subject to a five-year bar to reentry.  The Department of Homeland Security’s fact sheet on the proposed rule can be found here. 

The proposed rule will be posted in the Federal Register for a 30-day public comment period and will likely take effect in May, when a pandemic-era border restriction, known as Title 42’s pandemic related border restrictions are set to expire on May 11th.  This new rule is expected to remain in effect for two years. 

USCIS Updates Child Status Protection Act (CSPA) Age Calculation for Certain Adjustment of Status Applicants

On February 14th, 2023, USCIS issued guidance in the agency’s Policy Manual on when an immigrant visa number is considered “available” for the purpose of calculating an applicant’s age under the Child Status Protection Act (CSPA).

Generally, a child who applies for permanent residency based on a parent’s approved immigrant visa petition must be under the age of 21.  A child who “ages out” during the immigration process may lose their eligibility.  Under the CSPA, the amount of time that an immigrant visa petition remains pending may be subtracted from the child’s age to determine whether they have “aged out” at the time their parent’s priority date becomes current. 

Under the previous CSPA guidance, USCIS considered a visa available for purposes of the CSPA age calculation based only on the Final Action Date chart of the Visa Bulletin, even if the applicant could apply for adjustment of status using the earlier date in the “Dates for Filing” chart. Under this new guidance, USCIS will now use the Dates for Filing chart to calculate these noncitizens’ ages for CSPA purposes, which provides these noncitizens with more certainty about their eligibility to adjust status. If these noncitizens are eligible to adjust status because of the change in policy and they have filed for adjustment of status, they will also be eligible to apply for employment and travel authorization based on their pending adjustment of status application, and they generally will not lose previously issued employment or travel authorization.

FY 2024 H-1B Cap Registration Opens on March 1st

USCIS announced on January 27, 2023, that the H-1B initial cap registration period will open at 12pm EST on March 1, 2023 and run through 12pm EST March 17, 2023. Prospective employers and their representatives will be able to submit registrations for foreign workers using their myUSCIS online account. The nonrefundable registration fee is $10.

More information about the H-1B Lottery Registration process from the American Immigration Lawyer’s Association (AILA) can be found here. 

Please contact Iandoli, Desai, and Cronin as soon as possible if you would like to register a foreign worker in this year’s H-1B lottery.

February 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 February 2023, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing” 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 February, the EB-1 preference category on the Final Action Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140. However, applicants from China and India are subject to the final action date of February 1, 2022.

The EB-2 preference category remains retrogressed for all countries (including China and India) which means that individuals in these categories will not be able to file I-485 applications unless they have a “current” priority date.  The priority date for all countries except India and China in the EB-2 preference remains November 1, 2022.  All otherwise qualified individuals with a priority date before November 1, 2022, may file their I-485 applications.

The EB-3 preference category is “current” for all countries (excluding China and India) but is expected to backlog in the future. The Visa Bulletin states the following regarding the EB-3 category:

“Higher than expected number use in the Employment Third Preference “Other Workers” (EW) category, most notably amongst applicants with earlier priority dates, has necessitated further retrogressions in the worldwide final action date and application filing date for February to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. Except for China and India, all countries are subject to a final action date of 01JAN20 and an application filing date of 01FEB20.”

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

Department of Homeland Security Announces Special Student Relief for Haitian Students

The Department of Homeland Security published a notice in the Federal Register on January 25, 2023 announcing the suspension of certain regulatory requirements for Haitian students in F-1 nonimmigrant status who are experiencing severe financial hardship. The notice temporarily suspends all on- and off-campus employment regulations for eligible Haitian students. These suspensions will remain in effect through August 3, 2024. Immigration and Customs Enforcement (ICE) has published a F-1 Fact Sheet for Special Student Relief on its website.

U.S. Citizenship and Immigration Services to Expand Premium Processing to Certain F-1 Students Seeking OPT and STEM OPT

U.S. Citizenship and Immigration Services (USCIS) announced that premium processing will be expanded in March for F-1 students seeking Optional Practical Training (OPT) and STEM OPT extensions with a pending Form I-765, Application for Employment Authorization. Beginning in April, premium processing will be expanded to initial filings of Form I-765 for OPT and STEM OPT. The specific dates in March and April will be announced this month.

U.S. Citizenship and Immigration Services Redesigns Green Card and Employment Authorization Document

U.S. Citizenship and Immigration Services (USCIS) announced that it began issuing redesigned Green Cards and Employment Authorization Documents (EADs) on January 20, 2023. USCIS stated that some Green Cards and EADs issued after this date may still display the existing design format, but both versions of the cards are acceptable for Form I-9, Employment Eligibility Verification, and E-Verify. The M-274 Handbook for Employers describes the changes in each document.

U.S. Citizenship and Immigration Services Announces Final Phase of Premium Processing Expansion for Certain I-140 Petitions

U.S. Citizenship and Immigration Services (USCIS) has implemented the final phase of the premium processing expansion for Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. Beginning January 30, 2023, USCIS will accept Form I-907, Request for Premium Processing Service, for all pending and initial EB-1C (“Multinational Executives and Managers”) and EB-2 NIW (“National Interest Waiver”) petitions.