Form I-134A Filing Tips for Supporters and Beneficiaries of Uniting for Ukraine and Parole Processes

U.S. Citizenship and Immigration Services (USCIS) has been receiving many duplicate filings of Form I-134A, Online Request to be a Supporter and Declaration of Financial Support for parole applications for Cubans, Haitians, Venezuelans, and Nicaraguans, as well as for the Uniting for Ukraine. USCIS reminds supporters to not file duplicate Form I-134A applications. The best way to check case status is through the supporter’s online USCIS account. Potential supporters must file Form I-134A online as USCIS will not accept a paper-filed Form I-134, Declaration of Financial Support. There is a new section on the frequently asked questions page for Uniting for Ukraine and Processes for Cubans, Haitians, Nicaraguans, and Venezuelans on how to correct mistakes on Form I-134A. If there is an error on Form I-134A, supporters and beneficiaries should submit a secure message through their online account. USCIS advises to not call the USCIS Contact Center to correct an error unless the error cannot be corrected through the online account.

Department of State Suspends Visa Services in Sudan

The U.S. Department of State (DOS) announced that it is indefinitely suspending all visa services in Sudan due to the ongoing conflict in the country. The U.S. Embassy in Khartoum suspended its operations on April 23, 2023, and the DOS has evacuated U.S. employees and their families. All immigrant and diversity visa interviews are canceled until further notice. Those with pending post-interview immigrant visa cases may send one email only to KhartoumIV@state.gov, however this email address is not currently being monitored and it is unknown if or when alternative operations will be made available.

USCIS Extends Temporary Suspension of Biometrics for Certain Form I-539 Applicants

U.S. Citizenship and Immigration Services (USCIS) has extended the temporary suspension of biometrics submissions for certain Form I-539 applicants until September 30, 2023. H-4, L-2, and E nonimmigrant applicants requesting an extension of stay or change of status will not be required to provide biometrics. However, USCIS still retains the discretion on a case-by-case basis to require biometrics for any applicant. USCIS plans to establish a permanent biometrics exemption in the near future.

USCIS Announces Guidelines on Paper Filings Received on Weekends and Federal Holidays

U.S. Citizenship and Immigration Services (USCIS) has updated its Policy Manual to address situations where the last day to file a benefit request or respond to a USCIS action occurs on a weekend or federal holiday. In the updated guidance, USCIS will consider a paper-submission timely filed if it is received by the end of the next business day. This guidance does not encompass all situations in which a request or action must be filed by a specific date. For example, time periods prescribed by statute, regulation, or form instructions are excluded.

FY 2024 H-1B Cap Season Updates

U.S. Citizenship and Immigration Services (USCIS) announced that it received a significant increase in registrants for the H-1B Cap lottery for FY202; 780,884 registrations were submitted (in comparison to 483,927 for FY2023 and 308,613 for FY2022). USCIS stated that the large number of beneficiaries with multiple registrations this year has raised serious fraud concerns about individuals seeking to gain an unfair advantage by having multiple petitioners register for the same beneficiary. USCIS reminds petitioners that each registration requires them to sign under penalty of perjury that the registration information is correct, reflects a legitimate job offer, and is not being submitted to unfairly increase the chances of the beneficiary being selected. USCIS stated, “Based on evidence from the FY 2023 and FY 2024 H-1B cap seasons, USCIS has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating law enforcement referrals for criminal prosecution.” USCIS stated that it will propose a new rule to modernize the H-1B registration process to reduce the possibility of misuse and fraud in the coming years.

April 2023 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 April 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 April, 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 further 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 is July 1, 2022. All otherwise qualified individuals with a priority date before July 1, 2022, may file their I-485 applications.  The Visa Bulletin states the following regarding the EB-2 category:

“Item D in the March 2023 Visa Bulletin warned that retrogression in the Employment-Based Second Preference (EB-2) category was likely due to much higher than expected number use and demand since December 2022. The Department and USCIS continue to see high demand from applicants with priority dates earlier than the established final action dates. Therefore, the EB-2 final action dates for Rest of World, India, Mexico, and the Philippines retrogressed to keep number use within the FY 2023 annual limit. The Rest of World, Mexico, and Philippines EB-2 final action dates retrogressed to 01JUL22 and the India EB-2 final action date retrogressed to 01JAN11. This situation will be continually monitored, and any necessary adjustments will be made accordingly.”

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:

“Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.”

The EB-4 preference category has further retrogressed for all countries.

“Based on INA standards and expected demand from these countries for family-sponsored and employment-based preference visas, the Department of State is no longer including a separate column covering applicants chargeable to El Salvador, Guatemala, or Honduras in the charts titled, “Final Action Dates for Employment-Based Preference Cases” and “Dates for Filing of Employment-Based Visa Applications,” for applicants who are seeking an immigrant visa in the EB-4 category.  Final action and filing dates for applicants from these three countries are now provided in the column headed ‘All Chargeability Areas Except Those Listed.’”

The F2A category (Family Sponsored Second Preference category), has retrogressed significantly:

“Item D in the February 2023 Visa Bulletin warned readers of the possibility of a final action date being established in the F2A category. Number use in the F2A category has remained steady to date in FY-2023 and it has become necessary to establish an F2A final action date to keep number use within the annual limit. F2A numbers exempt from per-country limits are available to applicants from all countries with priority dates earlier than 01NOV18.  F2A numbers subject to per-country limits are available to applicants chargeable to all countries except Mexico, with priority dates beginning 01NOV18 and earlier than 08SEP20.  All F2A numbers provided for Mexico are exempt from the per-country limit. This situation is being continually monitored and any necessary adjustments will be made accordingly.”

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).

Link: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-april-2023.html

DHS Extends and Redesignates Somalia for TPS as well as Announcing Special Student Relief for Somalia

TPS Redesignation and Extension

The Department of Homeland Security today published a Federal Register Ntoice extending and redesignating Somalia for Temporary Protected Status (TPS) for 18 months, from March 18, 2023, through September 17, 2024.

The registration process begins on March 13. All individuals who want to request TPS under Somalia’s designation must apply.

Re-registration is limited to individuals who previously registered for and were granted TPS under Somalia’s prior designation. Current beneficiaries under TPS for Somalia must re-register in a timely manner during the 60-day re-registration period from March 13, 2023, through May 12, 2023, to ensure they keep their TPS and work authorization. DHS recognizes that not all re-registrants may receive a new Employment Authorization Document (EAD) before their current EAD expires and is automatically extending through March 17, 2024, the validity of certain EADs previously issued under Somalia’s TPS designation. 

U.S. Citizenship and Immigration Services will continue to process pending applications filed under Somalia’s previous TPS designation. Individuals with a pending Form I-821, Application for Temporary Protected Status, or a related Form I-765, Application for Employment Authorization, as of March 13, 2023, do not need to file either application again. If USCIS approves a pending Form I-821 or Form I-765 filed under the previous designation of TPS for Somalia, USCIS will grant the individual TPS through Sept. 17, 2024, and issue an EAD valid through the same date.   

Under the redesignation of Somalia, eligible individuals who do not have TPS may submit an initial application during the initial registration period that runs from March 13, 2023, through Sept. 17, 2024. Applicants may also apply for TPS-related EADs and for travel authorization.

Special Student Relief

As of March 18, 2023, thought September 17, 2024, the Secretary of Homeland Security (Secretary) has suspended certain regulatory requirements for F–1 nonimmigrant students who are Somalian citizens, regardless of country of birth (or individuals having no nationality who last habitually resided in Somalia), and who are experiencing severe economic hardship as a direct result of the current crisis in Somalia. This action is meant to provide relief to these Somali students who are lawful F–1 nonimmigrant students so the students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F–1 nonimmigrant student status. The U.S. Department of Homeland Security (DHS) will deem an F–1 nonimmigrant student granted employment authorization by means of this notice to be engaged in a ‘‘full course of study’’ for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in this notice.

Links:

• Press Release

• Federal Register Notice of Somalian TPS Extension and Redesignation

• Federal Register Notice of Special Student Relief

USCIS Announces New Online Filing Procedures and Premium Processing Option for F-1 Students Seeking OPT or STEM OPT and Premium Processing

USCIS has expanded premium processing to make it available for certain F-1 students seeking Optional Practical Training (OPT) and F-1 students seeking science, technology, engineering, and mathematics (STEM) OPT extensions who have a pending Form I-765, Application for Employment Authorization, and wish to request a premium processing upgrade.

Online filing of Form I-907, Request for Premium Processing Service, is now also available to F-1 students in these categories. USCIS continues to accept the latest paper version of this form by mail. Premium processing expansion for certain F-1 students will occur in phases, and students requesting premium processing should not file before these dates:

Beginning March 6, USCIS now accepts Form I-907 requests, filed either via paper form or online, for certain F-1 students who already have a pending Form I-765, Application for Employment Authorization, if they are filing under one of the following categories:

• (c)(3)(A)—Pre-Completion OPT

• (c)(3)(B)—Post-Completion OPT

• (c)(3)(C)—24-Month Extension of OPT for STEM students

Beginning April 3, USCIS will accept Form I-907 requests, filed either via paper form or online, for F-1 students in the above categories when filed together with Form I-765.

Link: https://www.uscis.gov/newsroom/news-releases/uscis-announces-premium-processing-new-online-filing-procedures-for-certain-f-1-students-seeking-opt

USCIS Issues Guidance on Analyzing Employers’ Ability to Pay Wages

On March 15, 2023, USCIS published policy guidance on how the agency evaluates an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications. The guidance is effective immediately.

Employers seeking to classify prospective or current employees under the first, second, and third preference employment-based immigrant visa classifications that require a job offer must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition.

The relevant regulation requires the employer to submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date. If the employer has 100 or more workers, USCIS may instead accept a financial officer statement attesting to the employer’s ability to pay the proffered wage. The updated guidance also details various types of additional evidence employers may submit and explains how USCIS considers any evidence relevant to the employer’s financial strength and the significance of its business activities. Many employers satisfy the ability to pay requirement by submitting payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage.

The update also adds an appendix containing an overview of common business forms or structures to help officers and stakeholders better understand the types of petitioning entities filing Form I-140, Immigrant Petition for Alien Workers, or Form I-129, Petition for Nonimmigrant Worker. These business forms or structures are also relevant to the new commercial enterprises underlying a Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor. Specifically, the appendix includes information on how different types of businesses are formed, their fundamental characteristics, the various tax forms that each business organization files with the Internal Revenue Service, and basic tax terms.

Link: USCIS Certain Petitioning Employers’ Ability to Pay the Proffered Wage to Prospective Employee Beneficiaries

USCIS Provides Guidance on Program for International Entrepreneurs

On March 10, 2023, USCIS issued comprehensive guidance on the parole program for international entrepreneurs. To enhance entrepreneurship, innovation and job creation in the United States, the Department of Homeland Security (DHS) published the International Entrepreneur Rule on Jan. 17, 2017.

This rule provides a framework for DHS to use its parole authority to grant a period of authorized stay, on a case-by-case basis, to noncitizen entrepreneurs who possess a substantial ownership interest in a start-up entity and who can demonstrate that their stay in the United States would provide a significant public benefit through that start-up entity’s potential for rapid business growth and job creation.

The published guidance in the Policy Manual includes information about:

• The criteria for consideration for the applicant, the start-up entity, and the qualified investment or government award or grant;

• Evidence and documentation;

• The discretionary nature of the entrepreneur parole adjudication;

• Conditions on parole and bases for termination;

• The criteria for consideration for an additional parole period; and

• Options available to the entrepreneur’s family to join the entrepreneur as parolees and, if eligible, to obtain employment authorization.

Although an individual who is paroled into the United States has not been admitted into the United States for purposes of immigration law, parolees may enter and remain in the United States and may be authorized to work.

Links:

• USCIS Policy Manual

• Federal Register - International Entrepreneur Rule

• USCIS International Entrepreneur Parole page