March 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 March, 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 for March are January 1, 2023 and January 1, 2021 respectively.  

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

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).

Department of Labor’s Request for Information (RFI) on including STEM occupations in Schedule A category

On December 21, 2023, the Department of Labor (DOL) issued a Request for Information (RFI) on "Modernizing Schedule A to Include Consideration of Additional Occupations in Science, Technology, Engineering and Mathematics (STEM) and Non-STEM Occupations." In this request, DOL calls for input “…including data, statistical metrics or models, studies, and other relevant information, on how the Department may establish a reliable, objective, and transparent methodology for revising Schedule A to include STEM and other non-STEM occupations that are experiencing labor shortages, consistent with requirements of the Immigration and Nationality Act (INA).” 

The goal of this RFI is to ensure that DOL’s measures are “…striking an appropriate balance between the need to provide U.S. workers notice of available permanent job opportunities and the opportunity to apply for those job opportunities, and, where insufficient U.S. workers are available to satisfy an employer's need for permanent labor, the need to provide employers access to foreign labor through effective administration of the permanent labor certification program.” 

The data submitted by the public regarding this subject will help inform decisions regarding whether or how to improve the Schedule A process and to ensure the purpose of responding to national labor shortages is more effectively met based on changing workforce needs. DOL originally set the due date for comments as February 20, 2024, but has extended the comment period through May 13, 2024.  The Federal Register notice regarding this extension can be found here, and interested parties are encouraged to comment.  

Measures to Combat Fraud in the H-1B Registration Process

USCIS has announced further changes to the H-1B registration process in order to prevent fraud and frivolous applications, including a final rule implementing a beneficiary-centric selection process. According to USCIS’s review, the previous year’s large number of eligible registrations for beneficiaries with multiple eligible registrations - much larger than in previous years – raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. This may have unfairly increased their chances of selection.

This final rule contains provisions that will create a beneficiary-centric selection process for registrations by employers, codify start date flexibility for certain petitions subject to the congressionally mandated H-1B cap, and add more integrity measures related to the registration process.

Under the beneficiary centric process, registrations will be selected by unique beneficiary rather than by registration. This new process is designed to reduce the potential for fraud and ensure each beneficiary would have the same chance of being selected, regardless of the number of registrations submitted on their behalf by an employer. Starting with the FY 2025 initial registration period, USCIS will require registrants to provide valid passport information or valid travel document information for each beneficiary. The passport or travel document provided must be the one the beneficiary, if or when abroad, intends to use to enter the United States if issued an H-1B visa. Each beneficiary must only be registered under one passport or travel document.

USCIS issued a reminder to the public that at the time each registration is submitted, each prospective petitioner is required to sign an attestation, under penalty of perjury, that:

• All of the information contained in the registration submission is complete, true, and correct;

• the registration(s) reflect a legitimate job offer; and

• the registrant, or the organization on whose behalf the registration(s) is being submitted, has not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

If it is discovered that this attestation was not true and correct, USCIS will find the registration to not be properly submitted and the prospective petitioner would not be eligible to file a petition based on that registration. USCIS may deny a petition, or revoke a petition approval, based on a registration that contained a false attestation and was therefore not properly submitted. Those who submitted a false attestation to appropriate federal law enforcement agencies for investigation and further action, as appropriate.

Based on evidence from the FY 2023 and FY 2024 H-1B cap seasons, USCIS has conducted extensive fraud investigations, and has denied and revoked fraudulent or ineligible petitions, and continues to make law enforcement referrals for criminal prosecution. Based on the decrease in the filing rate for FY 2024’s H-1B lottery petitions, USCIS has found that that these investigations are having an impact. Updates to the H-1B process will continue to further this objective. 

Requests for Evidence and Notices of Intent to Deny trends in STEM OPT Extension Applications

On February 15, 2024, the American Immigration Lawyers Association (AILA) released a Practice Pointer (AILA Doc. No. 24021507) regarding Requests for Evidence (RFEs) or denials issued to STEM OPT Employment Authorization applicants with Classification of Instructional Program (CIP) codes on Form I-20 that do not clearly match the major or program listed on the applicant’s diploma or transcript.  AILA notes that the CIP code represents the field of study an international student is pursuing in the U.S. RFEs and denials have been noted in cases where a student has completed a Master of Business Administration that has been assigned a CIP code such as 52.1301 (Management Science) instead of the code for general business administration.   The RFEs in these cases typically request a statement from the school explaining how the degree issued corresponds with the assigned CIP code, and documentary evidence showing how the degree program reflected on the diploma or transcript is consistent with a program of study listed on the DHS STEM Designated Degree Program List. 

AILA notes that CIP codes are intended to reflect fields of study, and do not necessarily correspond perfectly with specific degrees or majors, and it is not a requirement that they do match perfectly. Further, the assignment of a CIP code to a degree program typically goes through more than one round of review and approval within the university and possibly even within the state university system.  

AILA encourages members to continue to report this issue as it occurs via the Report a Trend form available on AILA’s website. 

Re-Parole Process for Certain Ukrainian Citizens and Their Immediate Family Members

On February 27, 2024, USCIS announced that it will accept and consider, on a case-by-case basis, applications for certain Ukrainians and their immediate family members paroled into the United States under section 212(d)(5)(A) of the Immigration and Nationality Act. Ukrainian citizens and their immediate family members may apply for re-parole by submitting Form I-131, Application for Travel Document, along with supporting documentation and the proper filing fee or fee waiver request. You can submit Form I-131 online or on paper by mail.  

To be eligible for re-parole under this process, applicants must demonstrate the following: 

• They are a Ukrainian citizen or immediate family member who was paroled into the United States on or after February 11, 2022;

• That there are continued urgent humanitarian reasons or significant public benefit for a new period of parole, including the urgent humanitarian reasons or significant public benefit factors identified above, as well as any additional factors;

• That they warrant a favorable exercise of discretion;

• That they are physically present in the United States;

• That they have complied with the conditions of the initial parole; and

• That they clear biographic and biometric background checks.

Applicants may find their date of initial parole on their I-94 Arrival/Departure record, accessible online here. Applicants may find more information about applying online via their USCIS accounts here.

Deferred Enforced Departure for Certain Palestinians

On February 14, 2024, President Biden issued a Memorandum to the Secretary of Homeland Security authorizing Deferred Enforced Departure (DED) and employment authorization for 18 months for eligible Palestinians. USCIS will issue a Federal Register notice as soon as possible to provide additional information about implementation of the president’s memorandum. The notice will provide information about DED for eligible individuals and provide information on how eligible individuals may apply for DED-based Employment Authorization Documents with USCIS. Individuals need not take any action at this time.

Shifting Immigration Demographics in the Greater Boston Area

On February 14, 2024, the Commonwealth Beacon released an article outlining the change in demographics in immigration to the Greater Boston area over the last 30 years as reported by Boston Indicators, the research department of the Boston Foundation. According to the report described, in 1990 the top ten countries of origin for immigrants in the area were primarily European countries with Canada representing the largest number. In 2021, there were no European countries in the top ten countries of origin, and China represented the largest number.

The Boston Indicator report also found that immigrants made up 21 percent of Massachusetts’ population, and nearly a quarter of the total labor force in the state.  Further, “… immigrants contribute about 21 percent of the regional GDP and they pay $17 billion in local, state, and federal taxes.” The report also found that the majority of immigrants were in higher-paying positions such as scientists or software developers, and specified that “The report defined a low-wage worker as earning less than $49,000 a year; only 39 percent of the total immigrant population fell into that category.”  

The report also found that an increasing number of these immigrants are moving away from the city to areas like Revere, Marlborough, East Bridgewater, and Brockton, reflecting the impact of increased housing costs in the Boston area. 

H-1B lottery registration between March 6 and March 22

The H-1B Lottery for FY2025 will be open to registrations between 12 PM EST on March 6 and run through 12 PM EST on March 22.  Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption (requiring a U.S. Master’s degree), must first electronically register and pay the associated $10 H-1B registration fee for each prospective beneficiary.

In order to submit an H-1B registration, sponsoring employers and representatives must first create a USCIS online account.  On February 28, 2024, USCIS launched a new platform for myUSCIS organizational accounts that will allow multiple people within an organization and their legal representatives to collaborate on and prepare H-1B registrations, H-1B petitions, and any associated Form I-907, Request for Premium Processing Service.

Prospective petitioners submitting their own registrations (U.S. employers and U.S. agents, collectively known as “registrants”) will use an “organizational” account (formerly known as a “registrant” account). Registrants were able to create new organizational accounts on starting February 28, 2024. Those who have an existing registrant account can easily upgrade to an organizational account instead of creating a new account. Legal representatives with existing accounts now also have the ability to upgrade to an organizational account.

Lottery selections are not first-come-first-served.  They take place at random after the registration period closes on March 22, so there is no requirement to register on the day the registration period opens.

If you have questions about the H-1B registration process or would like assistance, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).

USCIS – Premium Processing Filing Fee Increased on February 26 & Overall Fee Increases as of April 1

In December 2023, USCIS announced a final rule that went into effect on February 26, 2024, increasing the filing fee for Form I-907, Request for Premium Processing, to adjust for inflation. 

The USCIS Stabilization Act established the Department of Homeland Security’s (DHS) authority to adjust the premium fees on a biennial basis. After leaving these fees unchanged for the three years following passage of the Act, DHS is now increasing the premium processing fees USCIS charges for all eligible forms and categories to reflect the amount of inflation from June 2021 through June 2023 according to the Consumer Price Index for All Urban Consumers. The adjustment increases premium processing fees for certain processes from $1,500 to $1,685, $1,750 to $1,965, and $2,500 to $2,805.  USCIS has issued an alert regarding the specific categories subject to these increases here.

The fee change went into effect on February 26, 2024. If USCIS receives a Form I-907 postmarked on or after February 26, 2024 with the incorrect filing fee, it 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.

In addition to the February 26th increase to Premium Processing fees, a wider fee increase will go into effect on April 1, 2024. The aim of this fee increase is to adjust for inflation and lower the agency’s required annual cost recovery by $727 million, in part by considering the budget effects of improved efficiency measures. 

I-129 and I-140 petitions will require a new Asylum Program Fee to help fund the asylum adjudication process. The American Immigration Lawyers Association (AILA) issued a Practice Pointer (AILA Doc. No. 2402147) regarding these fee increases on February 14, 2024.  The Practice Pointer notes the tiered fee structure for I-140 and I-129 petitions as follows:

• Small businesses with 25 or less full-time equivalent (FTE) employees will continue to pay the current $460 filing fee and half of the Asylum Program fee.

• Nonprofit organizations will continue to pay the current $460 filing fee and are not subject to the Asylum Program Fee.

• Under the Final Rule, forms filed online may be eligible for a discount of $50. This should include the Form I-129 for FY2025 H-1B petitions, as USCIS recently announced that the Form I-129 for H-1B petitions will be available for online filing this cap season.

AILA’s practice pointer further notes the change in fee structure for I-485 applications as follows:

“Previously, the fee for the Form I-1485 included the cost of ancillary benefit applications for employment authorization (Form I-765) and advance parole (Form I-131), but these fees are now being charged separately because USCIS stated that not all applicants need or want these ancillary benefits. The Final Rule also reduces the that the cost of a Form I-765 filed concurrently with or based on a pending adjustment of status by 50 percent. Finally, the Final Rule provides a reduced fee for certain forms that are filed online, including the Form I-765. However, the online filing reduced fee is not applicable to the reduced fee form I-765.

…if an applicant who is over 14 years of age files an adjustment of status application on or after April 1, 2024 and also applies for work authorization and advanced parole the new total cost will be $2,330 an increase from $1,225.”

In addition to fee increases, this rule also includes expanded fee exemptions for Special Immigrant Juveniles and victims of human trafficking, crime, and domestic violence; U.S. military service members and designated Afghan allies; and families pursuing international adoption.  It provides discounts for nonprofit organizations and small business employers. For applicants for Adjustment of Status, it allows for half-price Employment Authorization Document applications and a reduced fee for adjustment of status applicants under the age of 14 in certain situations.  The final rule also expands eligibility for a 50% fee reduction for naturalization applications, available to individuals who can demonstrate household income between 150% and 400% of the Federal Poverty Guidelines.  In an effort to expand online filing capabilities, the rule also includes a standard $50 discount for online filers.

The full final rule including charts of all fee increases can be found here. 

February 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 remained the same at July 1, 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).