Department of State Publishes Notice on Special Student Relief for Ukrainian J-1 Students
On April 5, 2023, the Department of State (DOS) published a notice in the Federal Register that provides Special Student Relief arrangements for eligible Ukrainian J-1 exchange visitors in the College and University Student category, which will remain in effect until October 23, 2023. Ukrainians who meet the criteria will be eligible for modified requirements for a full course of study and on and off-campus employment.
Office of Foreign Labor Certification (OFLC) Issues a Decision on Question H.10-B “Acceptable Alternative Occupation Title” on Form 9089
OFLC has evaluated denials of PERM applications based upon the employers’ answers to Question H.10-B “Acceptable Alternative Occupation Title” on Form ETA 9089 and determined that these denials were appropriate. However, OFLC also acknowledges that it has not been consistent in its denials, which has led to confusion among employers. As a result, OFLC has stopped issuing denials for this issue for pending applications and will not deny for this reason for any application submitted on or before May 30, 2023, by which point the updated version of Form ETA 9089 in the Foreign Labor Application Gateway system should be effective. Further, OFLC will overturn denials based solely on this issue. Denials of Form ETA 9089 based on this ground were predicated on the determination by OFLC that Question H.10B was being answered incorrectly when employers entered statements such as “See H.14 – Special Skills.” OFLC justified these denials by stating, “The information provided in H.14 does not identify what alternate occupations are acceptable to meet the experience requirements for the job that is the subject of the PERM application. Instead, the application only lists a series of the special skills requirements and/or other alternative combinations of education and experience that the employer is willing to accept. As a result of employers providing insufficient information in either H.10-B. or H.14, OFLC has recently denied applications for being incomplete.” OFLC expects to issue guidance in the near future, if necessary, to clarify how employers should incorporate this information in pending Form ETA 9141, Prevailing Wage Determinations into the new version of Form ETA 9089.
Office of Foreign Labor Certification (OFLC) Announces Timeline for New Form 9089
The Office of Foreign Labor Certification (OFLC) announced that it will phase out its legacy PERM Online System on May 15, 2023, at 6:59pm EST. OFLC conducted two webinars in April to provide stakeholders updates on the new PERM Form ETA 9089 that will go into effect on May 16, 2023. Recordings of each webinar (one and two) are available on the OFLC website. Beginning May 16, 2023, OFLC will only accept the revised Form ETA 9089 that is available on the Foreign Labor Application Gateway (FLAG) website. The revised ETA Form 9089 was posted to the FLAG system on April 24, 2023, so that filers can begin to review and prepare applications in advance of May 16th. OFLC has also provided a watermarked version of the revised ETA Form 9089 on its website for informational purposes.
COVID-19 Vaccine Requirement for International Travel will End on May 15, 2023
The Biden-Harris Administration announced that the COVID-19 vaccine requirements for international air travelers will end on May 11, 2023, which is the same day the COVID-19 public health emergency ends. The Administration reported that COVID-19 deaths have declined by 95% since January 2021 and hospitalizations are down by more than 90%.
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).