January 2024 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.

In January, the EB-1 preference category on the Final Action Chart remains current for all countries other than China and India. The EB-1 priority dates for China and India advanced to July 22, 2022 for China, and to September 1, 2020 for India.

U.S. Citizenship and Immigration Services (USCIS) determined that Chart B (Dates for Filing Employment-Based Visa Applications) could be used in January. Both the EB-2 and EB-3 preference categories remain backlogged for all countries, which means that individuals in these categories may not file Form I-485 applications until their priority dates become “current.”

H.R. 6363, signed on November 16, 2023, extended the Employment Fourth Preference Certain Religious Workers (SR) category until February 2, 2024.  This means that visas in this category may be issued, and final action may be taken on adjustment of status cases up until midnight February 1, 2024. Visas issued prior to that date will be valid only until February 1, 2024, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States no later than midnight February 1, 2024. 

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).

US State Department Releases Summary of 2023 Worldwide Visa Operations

• On January 2, 2024, the Department of State (DOS) released a summary of its FY 2023 worldwide visa operations. Some highlights from the summary are:

  • More nonimmigrant visas (NIVs) were issued worldwide in 2023 than in any year since 2015 (more than 10.4 million NIV issued worldwide);

  • DOS has continued to make use of the discretionary visa waiver tool and approximately 40% of the over 10.4 million NIVs issued did not require the applicant to attend an in-person interview, thus making interview slots available for first-time applicants and others who need them;

  • 563,000 immigrant visas were issued worldwide in FY 2023, and 30 of the State Department’s international missions issued their largest number of immigrant visas ever;

  • Consular sections worldwide have reduced the overall immigrant visa interview scheduling backlog by nearly half, from nearly 532,000 cases in the backlog as of July 2021, to just over 275,500.

  • The State Department issued 830,000 student and exchange visitor visas in FY 2023, more than in any year since FY 2016. 

US State Department Provides Update Regarding Improvements in US Passport Application Processing Times

As of December 18, 2023, the Department of State (DOS) passport processing times have reduced to what previously had been DOS’ normal turnaround time: about 6 to 8 weeks for routine service and 2 to 3 weeks for expedited service, which costs an additional $60.

US Department of State Determines Interview Waivers are in the National Interest for Several Visa Categories

• On December 21, 2023, the Department of State (DOS) announced that it had consulted with the Department Homeland Security and determined that several categories of interview waivers are in the national interest.

• The implementation of this policy began as of January 1, 2024, allowing consular officers to waive the in-person interview for:

  • First time H-2 visa applicants (temporary agricultural and nonagricultural workers) and

  • Other nonimmigrant visa applicants applying for any nonimmigrant visa classification who:

  • Were previously issued a nonimmigrant visa in any classification, unless the only prior issued visa was a B visa; and

  • Are applying within 48 months of their most recent nonimmigrant visa’s expiration date.

• However, consular officers may still require in-person interviews on a case-by-case basis or because of local conditions, and therefore DOS encourages applicants to check embassy and consulate websites.

• Additionally, DOS did not extend the waiver of interviews for F-1 (Student) and J-1 (Exchange Visitor) visa applicants. Therefore, the American Council on Education (ACE) and 25 other higher education associations wrote to the US Secretary of State urging the Secretary to extend and make permanent the waiver of in-person visa interviews for international students and scholars applying for F-1 and J-1 visas. The waiver available for F-1 and J-1 students was set to expire at the end of the 2023.

DOL Seeks Public Comment on Possible Expansion of Schedule A

• 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

• 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

• 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

• 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

• 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:

• Stat News, “NIH Panel Calls for Fewer, Better-Paid Postdocs in Bid to Halt Loss of Scientists to Industry” (December 15, 2023)

• Science, “NIH Advisory Group Recommends $14,000 Boost In Postdoc Pay” (December 15, 2023)

USCIS Updates Policy Guidance for International Students

• 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.