U.S. Citizenship and Immigration Services (USCIS) received a record 483,927 H-1B registrations in March and selected 127,600 registrations for which full H-1B petitions may be submitted for the 2023 fiscal year, the agency announced Thursday.

Key Points:

  • The 483,927 registrations marked a 56.8% increase over the 308,613 from last year.
  • The annual quota for cap-subject H-1B visas is 85,000 of which 20,000 are exclusively for U.S. advanced degree holders. USCIS said roughly 31% of all eligible registrations requested consideration under the advanced degree exemption.
  • USCIS selected significantly more registrations in the initial lottery than last year, when it selected 87,500 and subsequently conducted two additional lotteries.
  • The agency said it “takes into account historical data related to approvals, denials, revocations, and other relevant factors to calculate the number of petitions needed to meet the H-1B cap for a given fiscal year.”

BAL Analysis: The USCIS data demonstrates the ongoing popularity of the H-1B program and the high demand for the limited annual number of visas. Employers are encouraged to work with their BAL attorney to consider alternatives for registrations that were not selected in March’s lottery.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 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. Citizenship and Immigration Services has announced that in May it will follow the State Department’s Dates for Filing chart, as published in the May Visa Bulletin, to determine whether applicants are eligible to file for adjustment of status.

The Visa Bulletin, which was published yesterday, showed modest forward movement in India EB-2. All other priority-date cutoffs were the same as they were in the April Visa Bulletin.

Dates for Filing for Employment-Based Preference Cases:

Preference All Other Countries China El Salvador Guatemala Honduras India Mexico Philippines
EB-1 Current Current Current Current Current Current
EB-2 Current April 1, 2019 Current Dec. 1, 2014 Current Current
EB-3 Current April 1, 2018 Current Jan. 22, 2012 Current Current

Additional Information: Family-based applicants may use the applicable Dates for Filing chart for May.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 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 has ordered the departure of nonemergency employees and their family members from the Consulate General Shanghai district.

Key Points:

  • The State Department ordered the mandatory departure due to the ongoing COVID-19 outbreak and the related local heath control measures.
  • U.S. Mission staff will continue to be available 24 hours a day across China to provide emergency services to U.S. citizens. The State Department has adjusted staffing throughout the Mission to respond to the demand for emergency citizen services, including providing supplemental support to Consulate General Shanghai by a team at the U.S. Embassy in Beijing. Where conditions permit, U.S. citizen and visa services remain available to the public at this time; facilities at the U.S. Consulate General in Shanghai will reopen to the public as soon as possible.
  • Commercial flights for U.S. citizens wishing to depart Shanghai are available on a limited basis. U.S. citizens are encouraged to register in the Smart Traveler Enrollment Program and can contact this email for questions regarding accessing confirmed flights due to local health control measures.
  • The State Department has urged U.S. citizens to “reconsider travel” to China and not to travel to Shanghai, Jilin province or Hong Kong.

Additional Information: Chinese authorities continue to expand COVID-19 prevention and health control measures. These measures may include residential quarantines, mass testing, closures, transportation disruptions, lockdowns and possible family separation. Individuals with questions regarding other parts of China should contact the Embassy or Consulate General of the district to which they are traveling. More information regarding the current COVID-19 outbreak in Shanghai is available here.

BAL Analysis: Although visa services are available, U.S. citizens should expect delays at this time. The State Department’s ordered departure means that only emergency personnel will be present in Shanghai to provide consular services. Supplemental support from the U.S. Embassy in Beijing may further create delays in Beijing visa processing. Employers and employees should continue to consult their BAL professional before planning international travel.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 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 priority-date cutoff will advance modestly in the India EB-2 category but remain the same in other key employment-based categories next month, according to the State Department’s May Visa Bulletin.

Final Action Dates: Key Movements

EB-1

  • All countries under EB-1 will remain current.

EB-2

  • China EB-2 will remain at March 1, 2019.
  • India EB-2 will advance almost two months to Sept. 1, 2013.
  • All other countries under EB-2 will remain current.

EB-3

  • China EB-3 will remain at March 22, 2018.
  • India EB-3 will remain at Jan. 15, 2012.
  • All other countries under EB-3 will remain current.

Final Action Dates for Employment-Based Preference Cases:

Preference All Other Countries China El Salvador Guatemala Honduras India Mexico Philippines
EB-1 Current Current Current Current Current Current
EB-2 Current March. 1, 2019 Current Sept. 1, 2013 Current Current
EB-3 Current March 22, 2018 Current Jan. 15, 2012 Current Current

Dates for Filing: Key Movements

EB-1

  • All countries under EB-1 will remain current.

EB-2

  • China EB-2 will remain at April 1, 2019.
  • India EB-2 will advance three months to Dec. 1, 2014.
  • All other countries under EB-2 will remain current.

EB-3

  • China EB-3 will remain at April 1, 2018.
  • India EB-3 will remain at Jan. 22, 2012.
  • All other countries under EB-3 will remain current.

Dates for Filing for Employment-Based Preference Cases:

Preference All Other Countries China El Salvador Guatemala Honduras India Mexico Philippines
EB-1 Current Current Current Current Current Current
EB-2 Current April 1, 2019 Current Dec. 1, 2014 Current Current
EB-3 Current April 1, 2018 Current Jan. 22, 2012 Current Current

Additional Information: U.S. Citizenship and Immigration Services will announce soon via a web posting whether it will use the Final Action Dates or Dates for Filing chart in May. BAL will update clients once USCIS posts this information.  
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 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. Citizenship and Immigration Services (USCIS) has announced that Deferred Action for Childhood Arrivals (DACA) beneficiaries can file renewal applications online.

Key Points:

Additional Information: The U.S. Department of Homeland Security (DHS) continues to accept and adjudicate renewal DACA requests as well as requests for employment authorization. DHS is currently prohibited from granting initial DACA requests under a 2021 U.S. District Court ruling, though the agency may intake such requests. The Biden administration appealed the ruling in September. DHS has also proposed a regulation to “preserve and fortify” DACA, in a move that drew strong support from the business community.

BAL Analysis: USCIS has expanded online filing with the intent to make operations more efficient and effective for DACA renewal applicants and to minimize the agency’s reliance on paper records. BAL continues to monitor developments related to DACA and will provide updates as information becomes available. For more information, please visit BAL’s DACA Resource Center here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 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. Citizenship and Immigration Services (USCIS) has automatically extended Employment Authorization Documents (EADs) for certain Syria Temporary Protected Status (TPS) beneficiaries, and issued individual extension notices to them. The agency also provided guidance to employers on completing Form I-9 for these individuals.

Key Points:

  • The extension applies to a limited number of EADs for Syrian TPS holders whose renewal applications remain pending. These documents have a Category Code of A12 or C19 and expired on March 31, 2021, Sept. 30, 2019, or March 31 2018, and have now been extended until Sept. 24, 2022.
  • On Form I-9, employers should enter the new extension date of Sept. 24, 2022 in Section 2 under List A for affected employees who present their EAD and individual USCIS extension notice.
  • Employers must re-verify these Syrian TPS holders on Form I-9 before they start work on Sept. 25, 2022.

Additional Information: Employers using E-Verify should create a case for affected employees and enter the EAD document number on Form I-9, along with the automatically extended date of Sept. 24, 2022. More information regarding completing Form I-9 is available here.

BAL Analysis: Employers should be aware of the extension for certain TPS Syria beneficiaries and understand how to complete Form I-9 and E-Verify procedures for these employees.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 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 (PWD) requests.

PERM Processing: As of March 31, the department was adjudicating applications filed in September and earlier, conducting audit reviews on applications filed in July and earlier, and reviewing appeals for reconsideration filed in October and earlier.

Average PERM processing times:

  • Adjudication – 182 days.
  • Audit review – 283 days.

PWD Processing: As of March 31, the National Prevailing Wage Center was processing PWD requests filed in October and earlier for H-1B (OES) cases, September and earlier for H-1B (non-OES) cases, October and earlier for PERM (OES) cases and August and earlier for PERM (non-OES) cases, according to the Labor Department. Redeterminations were being considered on appeals filed February and earlier for H-1B cases and PERM cases. Center director reviews were being conducted for PERM cases filed in February and earlier.

BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in September and earlier and is starting to see PWDs for requests filed in October and earlier for H-1B (OES) cases, September and earlier for H-1B (non-OES) cases, October and earlier for PERM (OES) cases and August and earlier for PERM (non-OES) cases.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 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.

April 1 marked the beginning of the 90-day filing period for petitioners whose registrations were selected in this year’s H-1B lottery.

High demand and strict numerical quotas, however, mean that tens of thousands of qualified registrants were not invited to file H-1B petitions. Depending on an employee’s particular circumstances, alternative visa routes may be available. Employers are encouraged to consider alternatives for those who were not selected in the lottery. These alternatives may include:

  • F-1 Optional Practical Training. Newly graduated foreign students may extend their F-1 student status through Optional Practical Training (OPT) if they seek to perform work directly related to their area of study. A 2016 regulation allows F-1 student visa holders who have degrees in science, technology, engineering or mathematics (STEM) fields to apply for a 24-month extension of their one-year OPT period.
  • J-1 exchange visas. Companies may bring foreign students and graduates of foreign universities to the U.S. as trainees for up to 18 months or as interns for up to 12 months. One of the limitations to this visa category is that employers may not hire a J-1 visitor for a position that is filled or would be filled by a full- or part-time employee. Exchange visitors also must prove their intent to return to their home country and in some cases must return to their home country for two years at the end of their J-1 status.
  • H-3 Trainee visas. Trainee visas are available for individuals engaged in job-related training that is not available in their home country. These visas are not intended for U.S. employment and are intended to train the individual for a job they will perform outside the U.S.; therefore, H-3 trainees are restricted in the type of employment and cannot perform work in the normal operation of the business in which U.S. workers are regularly employed.
  • L-1 intracompany transfer visas. The L-1 category allows companies with international offices to transfer employees in managerial or specialized knowledge positions from a foreign branch, affiliate, parent or subsidiary office to their U.S. offices. Only employees with at least one year of experience in the company’s foreign operations in the last three years are eligible. Some companies may consider longer-term strategies of employing select candidates in their overseas office for a year and applying for L-1 status thereafter. L-1B visas for individuals with “specialized knowledge” are valid for up to five years, while L-1A visas for managerial workers are valid for seven years.
  • O-1 “extraordinary ability” visas. Individuals demonstrating extraordinary ability in business, science, education, art or athletics may qualify for an O-1 visa. This category requires evidence of distinguished achievements such as published articles, peer-reviewed activities, major awards, high salaries or employment in a critical capacity for a well-known organization.
  • E-2 Treaty Investor visas. Employees who are nationals of a country holding a treaty with the U.S. may qualify for E-2 visas. Although this route has traditionally been used by individual investors and smaller employers, in recent years, large established companies have started to leverage E-2 visas to hire and retain executives, managers and other essential employees in the U.S. The list of treaty countries is available here.
  • Country-specific nonimmigrant visas. Under bilateral agreements, certain nationalities are eligible for temporary nonimmigrant visas. These visas include H-1B1 specialty occupation visas for citizens of Chile and Singapore, E-3 specialty occupation status for Australian citizens, and TN classification for citizens of Canada and Mexico in designated professional categories. The TN classification was created by the North America Free Trade Agreement (NAFTA) and continued in the United States-Canada-Mexico Agreement (USMCA).

BAL Analysis: Employers are encouraged to work with their BAL attorney to explore H-1B alternatives for their current job candidates as well as to map out long-term options for their workforce.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 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. will begin accepting applications for gender-neutral passports beginning April 11, the State Department announced.

Key Points: 

  • Beginning April 11, U.S. citizens will be able to select an X as their gender marker on their U.S. passport application if they are applying for a U.S. passport book and selecting routine service.
  • Beginning in late 2023, applicants will be able to select X when applying for a passport card or selecting expedited service.
  • The State Department also anticipates that by late 2023 applicants will be able to select X when applying for:
    • Emergency passports printed at U.S. embassies and consulates.
    • Expedited and emergency passports issued at passport agencies or centers.
    • Consular Reports of Birth Abroad (CRBAs).

Additional Information: Information on how to apply can be found here. General information about passports and processing times is available here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 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.

Immigrant and nonimmigrant visa issuance remained well below pre-pandemic levels in the 2021 fiscal year, according to U.S. State Department data.

The recently released “Report of the Visa Office 2021” showed that immigrant visa issuance ticked up slightly in FY 2021 after dropping by nearly 50 percent in FY 2020. Nonimmigrant visa issuance continued to decline after falling by more than 50 percent in FY 2020.

Fiscal Year Immigrant Visas Issued Globally
2017 575,902
2018 550,930
2019 462,422
2020 240,526
2021 285,069

 

Fiscal Year Nonimmigrant Visas Issued Globally
2017 9,681,913
2018 9,028,026
2019 8,742,068
2020 4,013,210
2021 2,792,083

A full breakdown of immigrant visa issuance globally in FY 2021 is available here. Information about nonimmigrant visa issuance is available here.

State Department data also shows that immigrant visa issuance has remained relatively even in recent months, while nonimmigrant visa issuance has started to pick up.

Month Immigrant Visas Issued Globally
October 2021 36,245
November 2021 35,647
December 2021 38,397
January 2022 33,039
February 2022 35,942

 

Month Nonimmigrant Visas Issued Globally
October 2021 296,442
November 2021 391,022
December 2021 435,665
January 2022 414,383
February 2022 484,571

More information on monthly visa issuance globally is available here.

BAL Analysis: The COVID-19 pandemic and related staffing and funding issues have slowed visa issuance globally, and many embassies and consulates continue to operate at a reduced capacity. The State Department has made reducing backlogs a priority, and the increase in nonimmigrant visa issuance in recent months is a positive sign. Applicants should continue to expect delays in the months ahead. Employers and employees should continue to consult their BAL professional before planning international travel.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 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.