DOL Seeks Public Comment on Possible Expansion of Schedule A

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  • On December 15, 2023, the US Department of Labor (DOL) published a request for public comment on revisions that it is considering making to Schedule A of the permanent labor certification process. These possible expansions could include occupations in Science, Technology, Engineering and Mathematics and other non-STEM occupations, and the DOL has invited the public to comment on the proposed revisions through February 20, 2024.

  • This is significant because revisions have not been made to Schedule A in approximately 20 years. If DOL lists a foreign national’s occupation on Schedule A, an employer can avoid labor certification and lengthy PERM processing, something that has increasingly taken more and more time as DOL backlogs have increased in the last several years.

USCIS Changes Filing Location for Form I-907 Filed for Pending Form I-140

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  • US Citizenship and Immigration Services (USCIS) announced that as of December 15, 2023, it has begun transitioning the filing location for premium processing requests (filed on Form I-907), when filed for a pending Form I-140, Immigrant Petition for Alien Workers, from the USCIS service centers to appropriate USCIS lockboxes.

    • USCIS will reject any Form I-907 filed with Form I-140 that is received at the previous service center address.

  • USCIS noted that this change does not apply to those filing Form I-140 concurrently with an associated application (such as Form I-485, I-765, or Form I-131). The agency said it will soon announce a filing location change for these forms, but as of now, such forms should be filed with the service centers as listed on the Direct Filing Addresses for Form I-140, Immigrant Petition for Alien Worker page.

USCIS Issues Policy Guidance on “Ability to Pay” Requirement When Adjustment of Status Applicants Change Employers

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  • On January 5, 2024, US Citizenship and Immigration Services (USCIS) issued policy guidance on how the Service analyzes an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications, including instances when the sponsored worker is changing employers. 

    • Generally, 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 until the beneficiary obtains lawful permanent residence.

    • The updated guidance explains that when the beneficiary of a Form I-140, Immigrant Petition for Alien Workers, moves (or “ports”) to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) while the Form I-140 is pending, USCIS determines whether the petitioner meets the ability to pay requirements only by reviewing the facts in existence from the priority date until the filing of the Form I-140. USCIS is also making other minor technical revisions to improve clarity and readability, and otherwise streamline existing guidance.

    • The guidance can be found in Volume 6, Part E, Chapter 4 of the Policy Manual, became effective immediately upon publication and applies prospectively to petitions filed on or after that date. It builds on previous guidance from March 15, 2023, on how USCIS analyzes employers’ ability to pay the proffered wage.

Link:

https://www.uscis.gov/newsroom/alerts/uscis-issues-policy-guidance-on-ability-to-pay-requirement-when-adjustment-of-status-applicants

USCIS Reaches FY 2024 H-1B Cap

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  • On December 13, 2024, US Citizenship and Immigration Services (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) 2024.

  • USCIS said it will send non-selection notices to registrants through their online accounts. When the agency finishes sending the non-selection notifications, the status for properly submitted registrations that USCIS did not select for the FY 2024 H-1B numerical allocations will show:

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

  • USCIS said it 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 2024 H-1B cap.

    • USCIS 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.

NIH Postdoc Wage Policy Issue on the Horizon for Research Institutions and Hospitals

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  • As reported by multiple news outlets in December 2023, an advisory group to the National Institutes of Health (NIH) released a report with a number of suggestions to improve the average postdoctoral experience and slow the loss of scientists to industry.

  • One of the major suggestions was to raise the minimum postdoc salary to $70,000, which would be an increase of over twenty percent (20%), and adjusting wages for annual inflation. The report also suggested limiting the length of postdoc appointments to 5 years, health care expansions, retirement, child care benefits, increased support for international postdocs, and other measures that are meant to enhance the quality of the postdoctoral experience.

  • In recent years there has been an unprecedented exodus of young life science researchers away from academia and into industry. If the NIH officially decides to support and implement these changes, the report writers hope it will secure the future of academia’s research workforce. However, there could be numerous unintended consequences, such as initially reducing the number of postdocs and potentially making it much harder for some universities and institutions to support postdocs if it is not possible for them to fund increases to postdoc salaries and benefits.

Links to articles:

USCIS Updates Policy Guidance for International Students

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  • On December 20, 2023, US Citizenship and Immigration Services (USCIS) issued policy guidance regarding the F and M student nonimmigrant visa categories, including the USCIS’s role in adjudicating related applications for employment authorization, change of status, extension of stay, and reinstatement of status and their dependents in the United States. The guidance is meant to USCIS “provide welcome clarity to international students and U.S. educational institutions on a wealth of topics, including eligibility requirements, school transfers, practical training, and on- and off-campus employment.”

  • One example of this is that the guidance clarifies that F and M students must have a foreign residence that they do not intend to abandon, but such a student may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still be able to demonstrate an intent to depart after a temporary period of stay.

  • Additionally, the guidance indicates how a student in F status who is seeking an extension of optional practical training based on a degree in a science, technology, engineering, or mathematics (STEM) field may be employed by a startup company, as long as the employer follows the training plan requirements, remains in good standing with E-Verify, and provides compensation commensurate to that provided to similarly situated U.S. workers, among other requirements.

US Department of Homeland Security Published Federal Register Notice Reiterating Extensions of Temporary Protected Status (TPS) Re-Registration Periods for Several Countries

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  • On December 13, 2023, the US Department of Homeland Security (DHS) published a Federal Register notice reiterating extensions of the periods to re-register for Temporary Protected Status (TPS) under the existing designations of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

  • As USCIS previously announced in September 2023, the re-registration period for each country is changing from 60 days to the full length of each country’s current TPS designation extension. The re-registration extensions are solely for TPS beneficiaries who properly filed for TPS during a previous registration period.

  • The 18-month re-registration periods for these current TPS beneficiaries, which are currently open, are extended to the following dates:

    • El Salvador, through March 9, 2025

    • Haiti, through August 3, 2024

    • Honduras, through July 5, 2025

    • Nepal, through June 24, 2025

    • Nicaragua, through July 5, 2025

    • Sudan, through April 19, 2025

Green Card Holder Denied Citizenship for Working in Cannabis Industry

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As reported in Politico on December 23, 2023, due to a conflict between federal immigration laws and an increasing number of state laws legalizing cannabis, individuals working in the cannabis industry in states where cannabis is legal can be denied US citizenship. This is what happened to Ms. Maria Reimers when she and her US citizen husband opened a small retail shop in Washington state, where cannabis is legal. The shop sells state-regulated cannabis. After obtaining her green card through marriage, Ms. Reimers applied for US citizenship, but was denied for a lack of good moral character due to her employment history and participation in what USCIS considered “illicit drug trafficking.” This disconnect between federal immigration policy and state laws can cause a great deal of confusion and has been creating serious immigration problems for individuals involved in the cannabis industry.

US State Department Begins Limited Pilot Program for Stateside H-1B Visa Renewal

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  • On December 21, 2023, the US State Department published an announcement regarding the details for the limited pilot program allowing for the stateside renewal of H-1B visas.

  • The pilot program will be limited to H-1B principal applicants (not including dependents) who are renewing a prior H-1B visa issued by the State Department’s US Consulates in Canada (“Mission Canada”) with an issuance date between 1/1/20 and 4/1/23, or by the State Department’s US Consulates in India (“Mission India”) with an issuance date between 2/1/21 and 9/30/21. Only 20,000 visa holders will be eligible for the pilot program/

  • The pilot program will begin accepting online applications on 1/29/24 and it will be open through 4/1/24, and will hopefully be expanded in the future

USCIS Increases Premium Processing Fees

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  • On December 28, 2023, the US Department of Homeland Security (DHS) published a final rule related to an increase in the cost of premium processing services for various applications filed with US Citizenship and Immigration Services (USCIS).

  • The fee change will go into effect on February 26, 2024. If USCIS receives a Form I-907 postmarked on or after Feb. 26, 2024 with the incorrect filing fee, they will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (such as UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt.

  • DHS will use the revenue generated by the premium processing fee increase to provide premium processing services; make improvements to adjudications processes; respond to adjudication demands, including reducing benefit request processing backlogs; and otherwise fund USCIS adjudication and naturalization services.