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U.S. Citizenship and Immigration Services confirmed it will use the Dates for Filing chart to determine employment-based filing eligibility for adjustment of status in January.
Dates for Filing for Employment-Based Preference Cases:
Additional Information: January will mark the fourth consecutive month that USCIS has used Dates for Filing to determine employment-based filing eligibility. This is welcome news given that the Dates for Filing chart generally has more progressive cutoff dates than the Final Action Dates chart. The State Department published the January Visa Bulletin Monday, showing advancement in some key employment-based categories, including the Dates for Filing for China EB-1, India EB-1, China EB-2 and China EB-3. BAL will continue to monitor the Visa Bulletin and will provide updates as information becomes available.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The U.S. State Department released the January Visa Bulletin Monday, showing advancement in key employment-based categories. U.S. Citizenship and Immigration Services had not yet announced whether it will use Final Action Dates or Dates for Filing to determine employment-based filing eligibility.
Final Action Dates: Key Movements
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Dates for Filing: Key Movements:
Additional Information: While the forward movement is welcome news, USCIS has yet to announce which chart it will use to determine employment-based filing eligibility next month. The agency is expected to do so in the coming days. BAL will provide updates as information becomes available.
This alert has been provided by the BAL Global Practice Group.
The State Department’s domestic visa renewal pilot program takes shape.
Foreign nationals prepare for a busy holiday travel season.
And a look at how the Biden administration’s approach to supplemental H-2B visa allocations are changing employer strategies.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination requests.
PERM Processing: As of Nov. 30, the department was adjudicating applications filed in December 2022 and earlier, conducting audit reviews on applications filed in August 2022 and earlier, and reviewing appeals for reconsideration filed in February 2023 and earlier.
Average Number of Days to Process PERM Applications
PWD Processing: As of Nov. 30, the National Prevailing Wage Center was processing PWD requests filed in April 2023 and earlier for H-1B OEWS and PERM OEWS cases, and February 2023 and earlier for PERM non-OEWS and H-1B non-OEWS cases. Redeterminations were being considered on appeals filed in June 2023 and earlier for H-1B cases and May 2023 for PERM cases. Center director reviews were being conducted for PERM cases filed in September 2023 and earlier. As of Nov. 30, there are no pending center director reviews being conducted for H-1B cases.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in December 2022 and earlier, but PWDs for requests filed in June 2023 and earlier for H-1B OEWS and PERM OEWS cases.
With the winter holidays approaching, many foreign national employees are planning to visit family abroad, vacation overseas and perhaps renew their visas while out of the country. Here are a few key reminders as we approach the holiday travel season:
Travelers should be sure to check their passports and visas. Travelers are encouraged to check how much time they must have on their passport to travel to their destination country — a minimum of six months’ validity is required for many countries, including the United States in some cases. Travelers who require a visa to reenter the U.S. should make sure their visa is valid for reentry.
Some consulates remain delayed. Some travelers may be planning to renew visas while abroad. Visa processing has improved substantially since last year, but wait times for business and tourist visas continue to be significant at some consular posts, such as Colombia, India and Mexico. Travelers should consult the appropriate embassy or consulate website for the most up-to-date information regarding appointment availability and requirements for expedited requests.
Administrative processing can delay visa issuance. BAL has seen an improvement in the number of visa applications flagged for additional administrative processing. However, some applications may still require further administrative processing, which typically delays visa applications. Travelers should note that even if a visa renewal is approved at the time of an interview, it may take a few weeks to receive the visa foil. Employers with employees who have an administrative processing case and a particularly urgent need to be in the country should contact BAL.
Travelers should consult entry restrictions for destination countries. While most countries have lifted COVID-19 entry rules, some continue to enforce vaccination and testing requirements. Employees should be aware of their destination country’s requirements and procedures and factor additional time into their travel plans if necessary.
Travelers should review State Department travel advisories. Individuals are encouraged to visit the State Department’s travel advisory website ahead of departure for detailed information about potential travel concerns at their destination.
BAL Analysis: Foreign nationals planning to travel this holiday season should be sure to check their passport and visa validity before leaving the U.S. Those planning to renew visas while abroad should anticipate possible delays; while wait times have improved, some consulates remain backlogged and administrative processing can cause additional delays. Travelers are also urged to review their destination country’s entry requirements and may wish to consult State Department travel warnings. Employers and employees should consult their BAL professional if they have questions.
The U.S. State Department issued more than 10.4 million nonimmigrant visas last fiscal year, the most since 2015 and nearly a record.
This figure represents a significant increase over the roughly 6.8 million nonimmigrant visas issued in the 2022 fiscal year and even eclipsed the number of nonimmigrant visas issued in the years leading up to the COVID-19 pandemic.
In a media note last week, the State Department said it:
BAL Analysis: The increase in nonimmigrant visa issuance is welcome news, though visa services at some embassies and consulates remain delayed, especially for B1/B2 visitor visas. The State Department cited expanded interview waiver authorities as one reason for the increase in visa issuance; these authorities are set to expire at the end of the year, though the U.S. Travel Association and others have called for an extension.
The State Department said it would continue “exploring new technologies to assess opportunities to streamline operations,” including “the option of domestic renewal in select visa categories.” The Department has indicated that a pilot domestic renewal program will be launched as early as January, initially to a limited number of H-1B visa holders, before being expanded to other categories. BAL will continue following the implementation of the domestic renewal pilot and will provide additional information as it becomes available.
State Department data shows a dramatic increase in the number of visas issued last fiscal year. Colleges say the need clarity on name, image and likeness rules for foreign student athletes. And the benefits of Temporary Protected Status for employers and individuals.
The Department of Homeland Security and the Department of Labor recently published a joint temporary final rule to increase the number of available H-2B temporary nonagricultural worker visas for fiscal year 2024.
Key Points:
Background: The temporary final rule contains provisions to protect both U.S. and H-2B workers. More information on the availability of H-2B visas for FY 2024 is available here.
Lawmakers reach a deal to avert a government shutdown.
The government publishes a regulation on additional H-2B visas.
And a new report estimates the economic cost of the U.S. green card backlog.
Federal lawmakers agreed to a short-term spending measure that will fund government through early next year, averting a shutdown that would have impacted some immigration functions.
BAL Analysis: A shutdown would have had serious consequences for some immigration services, particularly those at the Labor Department. Congress must pass another spending measure to keep the government open beyond early 2024.