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The U.S. State Department has provided clarification for the India Employment-Based Third preference (EB-3) retrogression that will take effect in the July 2023 Visa Bulletin.
Key Points:
Additional Information: The State Department previously reported that the retrogression “became necessary” because India’s EB-3 number use has been “consistently robust.” Similar retrogressions have occurred historically, particularly in pre-pandemic years when the annual limits were lower. Recent examples include the Visa Bulletin for September 2019, August 2019 and September 2018.
BAL Analysis: The number of visas is typically depleted at the end of the fiscal year and priority-date cutoffs retrogress before new immigrant visa quotas are available in October. While the Final Action Date is expected to advance in October, the movement of the date depends on variables such as visa demand and the Employment-Based annual limit. BAL will continue to monitor visa bulletin developments and will provide updates as information becomes available.
This alert has been provided by BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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.
U.S. Customs and Border Protection has launched a mobile app that allows eligible travelers to apply for Electronic System for Travel Authorization.
Additional Information: The ESTA app is available in 24 languages and for 40 countries whose citizens are eligible to travel to the United States for business or tourism stays of up to 90 days without a visa. More information regarding ESTA is available here.
BAL Analysis: CBP launched the ESTA app to provide a mobile-friendly experience for eligible foreign nationals to apply for ESTA. Foreign nationals eligible to enter the United States under the Visa Waiver Program are reminded that they should apply for ESTA no less than 72 hours before departure.
This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
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.
A final rule that would allow the Department of Homeland Security to provide alternatives to physical document examination in some scenarios in the Form I-9 process is under White House Office of Management and Budget review.
Additional Information: The rule will allow DHS to authorize “alternative document examination procedures in certain circumstances or with respect to certain employers” in hopes of reducing burdens on employers and employees while preserving the integrity of the employment verification process. However, it is not yet clear when DHS will make alternative procedures available or which employers will be eligible to use them. BAL will continue to monitor the progress of the rule and provide updates as information is made available.
The Department of Homeland Security has announced the rescission of the terminations of Temporary Protected Status for El Salvador, Honduras, Nepal and Nicaragua, and the extension of TPS for these countries for 18 months.
Additional Information: Those who arrived in the United States after the continuous residence dates for the above designations are not eligible for TPS and, if they enter without legal authorization and do not have a lawful basis to remain in the United States, will be subject to removal. The respective continuous residence dates are Feb. 13, 2001, for El Salvador; Dec. 30, 1998, for Honduras and Nicaragua; and June 24, 2015, for Nepal.
DHS rescinded the termination of TPS for beneficiaries from the aforementioned countries in relation to the litigation challenging the terminations. More information regarding the rescissions can be found on U.S. Citizenship and Immigration Services’ TPS website.
The Department of Homeland Security has announced that it will exempt fees for re-parole and work authorization renewals for certain Afghan nationals.
Additional Information: Afghan parolees who have already applied for asylum or lawful permanent resident status do not need to apply for re-parole. U.S. Citizenship and Immigration Services will extend their original employment authorization and send a Form I-797C, Notice of Additional Action, to their last address of record with USCIS.
BAL Analysis: DHS has exempted the fees for re-parole and work authorization renewals to allow qualifying Afghan nationals to continue to live and work in the United States while pursuing a more permanent immigration status. BAL will continue to follow developments specifically affecting Afghan nationals and will provide updates as information becomes available.
U.S. Citizenship and Immigration Services has issued policy guidance to clarify eligibility criteria for initial and renewal applications for Employment Authorization Documents in compelling circumstances.
To be eligible for EADs based on compelling circumstances, individuals must meet the following requirements:
Additional Information: The compelling circumstances-based EAD is a discretionary, temporary measure intended to address particularly difficult situations, including those on the path to obtaining lawful permanent residence but who otherwise may have been forced to stop working and leave the United States. Compelling circumstances may include serious illness and disability, employer dispute and retaliation and other harms to the applicant or an employer.
More information regarding the policy guidance is available here. The updated USCIS Policy Manual is available here.
U.S. Citizenship and Immigration Services announced today that it is expanding premium processing to certain applicants who are changing to F, M and J nonimmigrant status.
Additional Information: Applicants are reminded that they must submit their biometrics before premium processing can begin for the categories above. The 30-day time limit for premium processing a Form I-539 will not begin until the applicant and all co-applicants included on the Form I-539 submit their biometrics.
BAL Analysis: USCIS is expected to continue expanding premium processing in the coming months but has yet to provide a detailed timeline. The 2022 Final Rule did not foresee completing the premium processing expansion until FY2025. BAL will monitor the implementation of premium processing expansions and will provide updates as information becomes available.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of May 31, the department was adjudicating applications filed in July 2022 and earlier, conducting audit reviews on applications filed in April 2022 and earlier, and reviewing appeals for reconsideration filed in August 2022 and earlier.
PWD Processing: As of May 31, the National Prevailing Wage Center was processing PWD requests filed in August 2022 and earlier for H-1B OES, November 2022 and earlier for H-1B non-OES cases and PERM OES cases, and September 2022 and earlier for PERM non-OES cases. Redeterminations were being considered on appeals filed December 2022 and earlier for H-1B cases, and November 2022 and earlier for PERM cases. Center director reviews were being conducted for PERM cases filed in June 2023 and earlier.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing slightly faster PERM issuances and PWD issuances for PERM OES and non-OES cases. BAL is seeing approvals for PERM applications filed in August 2022 and earlier, and is starting to see PWDs for requests filed in August 2022 and earlier for H-1B OES cases, November 2022 and earlier for H-1B non-OES cases, and December 2022 and earlier for PERM OES and non-OES cases.
The State Department released the July Visa Bulletin, showing retrogression in the employment-based third preference category for all countries except China. U.S. Citizenship and Immigration Services announced it would use the Final Action Dates chart to determine employment-based filing eligibility for adjustment of status.
Final Action Dates: Key Movement
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: USCIS said it would use the Dates for Filing chart for family-based adjustment-of-status applications next month.
BAL Analysis: The June Visa Bulletin warned of possible retrogression in India EB-3. In July’s Visa Bulletin, the State Department said that the retrogression “became necessary” because India’s EB-3 number use has been “consistently robust” and “it is estimated that applicants chargeable to India will use all EB-3 numbers made available to them during this fiscal year.” Likewise, the final action dates for Mexico, the Philippines and Rest of World continued to retrogress due in part to “higher than expected demand from applicants with priority dates earlier than the established final action dates.” Officials said they would continue to monitor the situation and make adjustments as needed.
The U.S. State Department provided guidance last month reminding international students they can only enter the country 30 days before their program start date.
Additional Information: In February 2023, the State Department provided guidance that consular officers can now issue an F or M student visa up to 365 days in advance of an international student’s program start date. The new guidance does not change the requirement for issuing Forms I-20 in SEVIS, paying the I-901 SEVIS Fee or seeking admission to the United States.
BAL Analysis: Even though consular officers can now issue F and M student visas up to a year in advance of a student’s program start date, foreign students should not attempt to enter the United States more than 30 days before their program start date.