H1B Cap Reached for FY 2023: Alternatives for Specialty Workers

H-1B Cap Reached for FY 2023

On August 23, 2022, U.S. Citizenship & Immigration Services announced that it had received enough petitions to meet the congressionally mandated annual 65,000 regular H1B cap and the 20,000 master’s H1B cap for fiscal year 2023. Therefore, because the annual quota of 85,000 total visas has been met for the next fiscal year, USCIS will not conduct additional lotteries.

USCIS has sent non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H1B numerical allocations, but that were not selected, will now indicate “Not Selected.” The registration for FY24 will open in March 2024 for the fiscal year beginning on October 1, 2024.

Not Selected in the H-1B Lottery? Consider These Alternatives, Especially for STEM Foreign Graduates.

If you were not selected in the annual H1B lottery, there may be other options to keep talented foreign workers contributing in the U.S. Wondering if the options below might be a fit for you? Call us to discuss the requirements and processing times in more detail.

• Pursue PERM/labor certification. So long as the employee is not a national of India or China, employers should consider pursuing the recruitment-based, 3-step green card process which begins with a labor certification.

  • Under current processing times, the sponsored employee may be able to file for adjustment of status and interim employment authorization for themselves and eligible family members within 12 months.

  • For those eligible for STEM OPT and not subject to retrogression, the timeline may allow for employment authorization before the end of STEM OPT.

  • This is a great job market for STEM graduates making it a great time for the labor certification process.

• Pursue a National Interest Waiver (NIW).

  • The Biden Administration has made it a priority to keep STEM foreign graduates in the United States and, thus, if the employee’s research or work is in the national interest, this is a terrific option.

  • For those eligible for STEM OPT and not subject to retrogression, the ability to concurrently file an NIW Immigrant Petition and applications to adjust status may allow for employment authorization before the end of STEM OPT.

• Pursue a nonimmigrant Extraordinary Ability O1 Petition.

  • This is an option for qualifying noncitizens, including those from India or China, if they can satisfy at least 3 of the regulatory criteria, such as

    • publication of scholarly articles, preferably first-author and in high-impact journals;

    • service as a judge of the work of others (e.g., manuscript/abstract review);

    • original contributions of major significance in the field, as validated by experts; or

    • nationally or internationally recognized awards or honors.

  • There is no prevailing wage requirement.

  • The O1A Petition can be adjudicated within 15 days via premium processing!

• Pursue a Treaty Visa. Nationals of the following countries may be eligible for employment visas that are not subject to a cap for certain occupations:

  • Canada/Mexico: USMCA (TN) classification

  • Chile/Singapore: H1B1 Specialty Workers

  • Australia: E3 Specialty Workers

• Consider industry-academic partnerships with an institution of higher education to pursue cap-exempt H1B. Employees who work at least part-time for a cap exempt H1B employer (e.g., institution of higher education, affiliated non-profit, etc.) can have an otherwise cap subject employer pursue a concurrent H1B on their behalf for the same duration as their cap exempt H1B employment.

Every situation is unique and multiple factors can influence eligibility for classifications. If you have missed out on selection in the FY2023 H1B Lottery, consider whether another path may be available.

Next Round of Premium Expansion Begins August 1

USCIS is implementing the second phase of the premium processing expansion for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Worker, under the EB-1 and EB-2 classifications. This phase only applies to certain previously filed Form I-140 petitions under an E13 (EB-1C) multinational executive and manager classification or E21 (EB-2) national interest waiver (NIW) classification. Beginning August 1, 2022, USCIS will accept Form I-907 requests for E13 multinational executive and manager petitions received on or before July 1, 2021 and E21 NIW petitions received on or before August 1, 2021.

USCIS will not accept new (initial) Forms I-140 with a premium processing request at this time.

Premium Processing Expansion Comes to Long-Pending Multinational Managers and NIWs

U.S. Citizenship and Immigration Services is rolling out the first round of premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. This expansion of premium processing only applies to certain previously filed Form I-140 petitions under an EB-1C multinational executive and manager classification or EB-2 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.

The expansion will occur in phases:

• Beginning June 1, 2022, USCIS will accept Form I-907 requests for EB-1C multinational executive and manager petitions received on or before January 1, 2021.

• Beginning July 1, 2022, USCIS will accept Form I-907 requests for EB-2 NIW petitions received on or before June 1, 2021, and EB-1C multinational executive and manager petitions received on or before March 1, 2021.

USCIS will reject premium processing requests for these classifications that before the windows open on June 1, 2022, or July 1, 2022. USCIS will not accept new (initial) Forms I-140 with a premium processing request at this time.

Visa Bulletin Update and EB Visa Insights

VISA BULLETIN UPDATES

For the month of May 2022, all employment-based first preference (EB-1) categories remain Current in both the Date for Filing and Final Action Dates Charts of the Visa Bulletin. All countries but for China and India likewise remain Current in the second (EB-2) and third (EB-3) preference categories. For India, while EB-3 remains unchanged since we last reported in February, EB-2 has progressed by 8 months in the Final Action Dates Chart to 09/01/2013 and by 15 months in the Dates for Filing Chart to 12/01/2014. For China, the EB-3 “Other Workers” preference category has advanced two months since February to 06/01/12 in the Final Action Dates Chart and to 08/01/2015 in the Dates for Filing Chart, while EB-2 and the remainder of EB-3 remain unchanged since February.

The Department of State has advised that high number use in the EB-3 “Other Workers” (EW) category may necessitate the establishment of a worldwide final action date as early as June to hold number use within the maximum allowed under the Fiscal Year 2022 annual limit.  

For all employment-based preference categories, USCIS has advised that the Dates for Filing Chart must be used in May 2022.

UPDATES ON THE REAUTHORIZATION OF THE EMPLOYMENT-BASED FIFTH PREFERENCE (EB-5) I5 AND R5 REGIONAL CENTER VISA CATEGORIES

On March 15, the Consolidated Appropriations Act of 2022, which reauthorizes and reforms the EB-5 Immigrant Investor Regional Center Program, was enacted. Accordingly, the Department of State has resumed processing visa applications based on approved Employment-Based Fifth Preference Regional Center petitions that were filed with USCIS on or before June 30, 2021. 

Both Employment-Based (EB) Charts of the Visa Bulletin have been revised to reflect some of the new provisions outlined in the EB-5 Reform and Integrity Act of 2022, including the creation of two pools of visa numbers within the EB-5 category, one which is ‘reserved’ for certain set-aside categories and the other for remaining available ‘unreserved’ numbers. 

For the month of May 2022, all EB-5 categories in the EB Final Action Dates Chart are Current for all countries, with the exception of the EB-5 Unreserved (I5 and R5) category for China-mainland born, which is subject to a November 15, 2022 final action date and December 15, 2015 date for filing.

The Department of State has advised that it may become necessary to establish a China-mainland born final action date and application filing date for the C5 and T5 categories as early as June to keep number use within the maximum allowed under the FY-2022 annual limits if sufficient demand materializes.

EMPLOYMENT-BASED FOURTH PREFERENCE (EB-4) EXTENDED THROUGH SEPTEMBER

The Consolidated Appropriations Act of 2022, also extended the Employment-Based Fourth Preference Certain Religious Workers (SR) category until September 30, 2022.

DHS Extends Form I-9 Requirement Flexibility Until October 31, 2022

On April 25, 2022, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended until October 31, 2022 the flexibility in complying with Form I-9 requirements that they first announced on March 20, 2020 and updated on April 1, 2021. At this time and until October 31, 2022, employees hired on or after April 1, 2021 who work exclusively in a remote setting due to COVID-19-related precautions are temporarily exempt from the Form I-9 physical inspection requirements – until they undertake non-remote employment “on a regular, consistent, or predictable basis”. Moreover, employers who are unable to timely inspect and verify in person the Form I-9 supporting documents of employees hired since March 20, 2020 may memorialize reasons for the inability in a memorandum to be retained with each affected employee’s Form I-9, for DHS ICE to evaluate on a case-by-case basis in the event of a Form I-9 audit. Employers are required to monitor the DHS and ICE websites for additional updates as they come. For the latest, please be sure to reach out to us.

SEVP Extends Flexibility for Students in the 2022-23 Academic Year

On April 18, 2022, U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) announced that its March 2020 guidance for F and M students will remain in effect for the 2022-2023 academic year. In particular, the guidance allows SEVP certified schools and students to engage in more distance learning than permitted under current regulations due to the COVID-19 pandemic. Students taking online classes will be considered to be engaged in a full course or study and maintaining their nonimmigrant visa status. The guidance covers students who were actively enrolled in a U.S. school as of March 9, 2020 and are otherwise compliant with the terms of their nonimmigrant status. Pursuant to SEVP’s Frequently Asked Questions, also updated on April 18, 2022, schools are not be able to issue Forms I-20 (Certificates of Eligibility for Nonimmigrant Student Status) for new students enrolling in programs that remain fully online.

DHS Designates Afghanistan for Temporary Protected Status for 18 Months

The Department of Homeland Security (DHS) announced today the designation of Afghanistan for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of March 15, 2022, will be eligible for TPS.

The designation is based on ongoing armed conflict and extraordinary and temporary conditions that prevent the country’s nationals from returning in safety, including armed conflict as the Taliban seeks to impose control in all areas of the country, attacks against civilians by Islamic State-Khorasan (IS-K), a collapsing public sector, a worsening economic crisis, drought, food and water insecurity, lack of access to healthcare, and internal displacement.

TPS will apply only to those individuals who are already residing in the United States as of March 15, 2022, and meet all other requirements, including undergoing security and background checks. Afghan nationals who arrived as part of the Operation Allies Welcome evacuation effort and were paroled into the United States may also be eligible for TPS. Those who attempt to travel to the United States after March 15, 2022, will not be eligible for TPS.

The 18-month designation of TPS for Afghanistan will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document.

DHS Designates Ukraine for Temporary Protected Status for 18 Months

The Department of Homeland Security (DHS) announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months.

This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Ukraine that prevent Ukrainian nationals, and those of no nationality who last habitually resided in Ukraine, from returning to Ukraine safely. These conditions result from the full-scale Russian military invasion into Ukraine, which marks the largest conventional military action in Europe since World War II. This invasion has caused a humanitarian crisis with significant numbers of individuals fleeing and damage to civilian infrastructure that has left many without electricity or water or access to food, basic supplies, shelter, and emergency medical services.

Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS. Ukraine’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.

DHS Designates Sudan and Re-Designates South Sudan for TPS

The Department of Homeland Security (DHS) today announced a new 18-month designation of Sudan for Temporary Protected Status (TPS) that will become effective upon publication of an upcoming Federal Register Notice (FRN). DHS also announced the extension and redesignation of South Sudan for TPS for 18 months, effective May 3, 2022, through November 3, 2023. An FRN providing further information on TPS for South Sudan was posted for public inspection today.

The new TPS designation enables nationals of Sudan and individuals having no nationality who last habitually resided in Sudan, and who have continuously resided in the U.S. since March 1, 2022, to file initial applications for TPS. This designation also allows nationals of Sudan whose TPS is currently continued under the TPS-related court orders to file an initial application under this new designation, which will ensure those eligible avoid losing TPS or experiencing a gap in coverage.

The extension and redesignation of South Sudan for TPS allows current beneficiaries to retain TPS through November 3, 2023, as long as they meet TPS eligibility requirements. The redesignation of TPS for South Sudan allows South Sudanese nationals and individuals having no nationality who last habitually resided in South Sudan, and who have been continuously residing in the U.S. since March 1, 2022, to file an initial application to obtain TPS, if they are otherwise eligible.

The FRNs explain the procedures necessary to submit an initial registration or re-registration application and to apply for an Employment Authorization Document.

DHS Issues Temporary Exception to COVID Requirements for Nonimmigrants Traveling from Ukraine

Effective February 15, 2022 through 11:59 pm ET March 1, 2022, the Department of Homeland Security has authorized the grant of National Interest Exceptions (NIEs) to Presidential Proclamation 10294, barring U.S. entry by nonimmigrants who are not fully vaccinated, for nonimmigrants traveling from Ukraine to accompany U.S. citizens or lawful permanent residents.

The grant comes in light of the Department of State’s February 12, 2022 Level 4 Travel Advisory recommending that individuals in Ukraine depart immediately due to the escalating geopolitical tensions: “Given the rapidly deteriorating security situation in Ukraine, and the need to ensure that individuals traveling with U.S. citizens and lawful permanent residents can safely depart the country,” Secretary Mayorkas “determined that a temporary exception” for certain nonimmigrants is warranted by the national interest.

To qualify, the noncitizen nonimmigrant must:

• be traveling with a U.S. citizen or lawful permanent resident;

• have been physically present in Ukraine as of February 10, 2022; and

• possess valid travel documents allowing them to travel to the U.S.

Nonimmigrants granted entry under these provisions must:

• attest to having made arrangements to receive a COVID-19 test within three to five days of arrival in the U.S.;

• self-quarantine for seven days;

• self-isolate in the event of a positive COVID-19 test or the development of COVID-19 symptoms; and

• become fully vaccinated for COVID-19 within 60 days of arrival in the U.S., if intending to stay more than 60 days.

Update on Current COVID-19 Requirements for Travel to U.S.

As of January 26, 2022, all foreign nationals wishing to travel to the United States NEED to be fully vaccinated unless exempted.

If you are a foreign national (person who is not a U.S. Citizen, a U.S. legal permanent resident (Green card holders), or a U.S. national) wishing to enter the United States by air, land, or sea, you must be “fully vaccinated” with an approved COVID-19 vaccine in order to be able to travel to and enter the United States.

• You must be prepared to show the appropriate vaccine documentation to the airline at an airport, or to a CBP Official at an airport, border crossing or seaport.

• You must be considered to be “fully vaccinated.” This means:

  • 2 weeks (14 days) must have passed after your dose of an accepted single-dose vaccine;

  • 2 weeks (14 days) must have passed after your second dose of an accepted 2-dose series;

  • 2 weeks (14 days) must have passed after you received the full series of an accepted COVID-19 vaccine (not placebo) in a clinical trial; or

  • 2 weeks (14 days) must have passed after you received 2 doses of any “mix-and-match” combination of accepted COVID-19 vaccines administered at least 17 days apart.

• Thus far, the United States has approved the following COVID vaccines for travel to the United States: Pfizer-Biotech, Moderna, Janssen/J&J, AstraZeneca, Covaxin, Covishield, BIBP/Sinopharm, Sinovac, and Novavax/Covovax.

• You will not be able to travel to the United States by air, land, or sea if you are not “fully vaccinated” and you DO NOT meet one of the clearly delineated exemptions outlined on the CDC’s website. For more information regarding the exemptions to not being “fully vaccinated” and being able to travel to the United States, we encourage you to visit the CDC’s website at: www.cdc.gov.

As of January 26, 2022, all travelers 2 years old or older need to get tested or show proof of recovery from COVID-19 before traveling to the United States by air.

While only foreign nationals (unless exempted) need to be “fully vaccinated” in order to enter the United States by air, land, or sea, as of December 6, 2021 there has been a change in the COVID testing requirements to enter the United States by air.

• All U.S. citizens, U.S. legal permanent residents, U.S. nationals and foreign nationals who are 2 years old or older need to take a viral COVID-19 test within 1 day of their flight departure to the United States, and show their negative COVID test result to the airline before being allowed to board their flight to the United States.

• In lieu of the negative COVID-19 test result, persons travelling to the United States by air can also show documentation of recovery from COVID-19 (i.e., your positive COVID-19 viral test result on a sample taken no more than 90 days before the flight’s departure from a foreign country and a letter from a licensed healthcare provider or a public health official stating that you were cleared to travel).

As of January 26, 2022, there are no COVID-19 related travel restrictions imposed on any nation.

The travel restrictions that the United States had imposed on eight Southern African nations (South Africa, Lesotho, Botswana, Zimbabwe, Eswatini, Namibia, Malawi and Mozambique) as a result of the Omicron variant, and which prevented foreign nationals from traveling to the United States if they had been in any of the above-listed countries within the previous 14 days prior to their travel to the United States, were lifted as of December 31, 2021.  

Biden Administration Announces Path for Private Citizens to Sponsor Afghan Refugees

The Biden administration announced it will allow private citizens to sponsor Afghan refugees. Under the Sponsor Circle Program, people can pool together funds to help an Afghan family. The U.S. withdrawal from Afghanistan in 2021 left many vulnerable Afghans behind. The Sponsor Circle program involves bringing together five adults in your area and raising $2,275 for each Afghan individual you want to help resettle in your community. Sponsors commit to assisting the refugees through their first three months in the community through helping locate housing, job searching, and registering children for school.

Importantly, by forming a Sponsor Circle, you are not directly enabling Afghans to enter the U.S. who otherwise wouldn’t be able to do so. Instead, you are speeding up the process of resettling Afghans who have already entered the US through what is known as humanitarian parole but who are stuck on military bases because the official resettlement infrastructure cannot get everyone settled right away.

The Biden administration is also planning in the first half of this year to launch a fuller private sponsorship program — one that would allow Americans to sponsor an Afghan family to enter the US who otherwise would not be able to.

Nonimmigrant Visa Interview Waiver Authorization Expanded and Extended

On December 23, 2021, the Secretary of State extended through the end of 2022 existing policy guidance for visa interview waivers for certain nonimmigrant visa (NIV) applicants (with minor modifications) and expanded the authorization to include additional categories of NIV applicants, as follows:

Categories NEWLY eligible for discretionary Visa Interview Waiver consideration (H-1, H-3, H-4, L, O, P, and Q):

Consular officers were given the discretionary authority to waive the visa interview requirement for individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who were previously issued any type of visa and:

• who have never been refused a visa unless such refusal was overcome/waived; and

• who have no apparent ineligibility or potential ineligibility.

Consular officers also have the discretion to waive the visa interview requirement for first- time individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who:

• are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided:

  • they have no apparent ineligibility or potential ineligibility; and

  • have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA).

Categories with EXTENDED eligibility for discretionary Visa Interview Waiver consideration (F, M, J (academic) and H-2) through the end of 2022:

Previously approved policies authorizing consular officers to waive the visa interview requirement for F, M, academic J, and H-2 visa applicants have been extended (with minor modifications).  The current policies for F, M, and academic J visa applicants are as follows:

Consular officers have the discretion to waive the visa interview requirement for F, M, and academic J Visa applicants who:

• were previously issued any type of visa and:

  • who have never been refused a visa, unless that refusal was subsequently overcome or a waiver of ineligibility was obtained; and

  • for whom there is no indication of potential visa misuse or ineligibility;

or

• are first-time F, M, and academic J visa applicants who/whose:

  • are citizens or nationals of Visa Waiver Program (VWP) participating countries;

  • have no prior ESTA denials;

  • have previously traveled to the United States using an authorization obtained via ESTA to qualify;

  • visa applications reveal no derogatory or potentially derogatory information; and

  • have no indication of potential visa misuse or ineligibility.

Certain H-2 (temporary agricultural and non-agricultural workers) applicants also remain eligible through the end of 2022 under previous authority allowing for waiver of interviews, as do applicants renewing any visa within 48 months of expiration.

How to Apply for an Interview Waiver:

As these waivers are to be granted individually at the discretion of local DOS consular officers, applicants are advised to check the website of the relevant U.S. embassy or consulate to confirm the level of services currently offered and to find guidelines for applying for a visa without an interview.

Note: To be considered for an interview waiver, an applicant must be applying for a visa at a U.S. consular office in their country of nationality or residence.

Visa Bulletin Update and EB Visa Insights

Visa Bulletin Updates

In the February Visa Bulletin, all employment-based first preference (EB-1) categories in both the Date for Filing and Final Action Date charts remain current. In second (EB-2) and third (EB-3) preference categories, most countries likewise remain Current, apart from India and China, where we see slight advancements in EB-2 and no advances in EB-3.

USCIS has advised that for February, employment-based preference categories must file based on the Dates for Filing chart. Notably, while the EB-5 Non-Regional Center program remains Current for all countries, the EB-5 Regional Center Program expired on June 30, 2021, and applications based on that Program will not be accepted until the Program is reauthorized. However, if there is legislative action extending this category for February, the final action dates would immediately become “Current” for February for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015 Final Action Date.

Insights on current and future EB visa availability

USCIS recently announced that there are an exceptionally high number of employment-based immigrant visas available this fiscal year (October 2021 through September 2022). They further communicated that there are many more visas available in the EB-1 and EB-2 preference categories than there are adjustment of status applications pending with USCIS at present, and have urged anyone who is eligible to consider applying in the EB-1 or EB-2 preference categories. In particular, USCIS is strongly encouraging anyone with a pending adjustment of status application based in the EB-3 preference category who also has a pending or approved petition and an available visa in the EB-2 preference category to request that USCIS “transfer the underlying basis” of his or her pending application to the EB-2 preference category. If you would like help in determining if you are eligible for the above or for assistance with this process, please contact the Goldblum, Pollins, and Dennis team.

DOS Revises FAM Provisions on International Students' Ties to Their Home Countries

On December 20, 2021, the U.S. Department of State (DOS) updated the Foreign Affairs Manual (FAM), which governs DOS operations and is used by consular officers in determining visa eligibility, to restore helpful guidance related to students seeking to study in the U.S. While acknowledging that F-1 or M-1 students must possess a foreign residence that they have no intention of abandoning and must have the present intention to depart the U.S. upon completion of their studies, the new guidance recognizes that young students do not typically have the strong ties to their home countries (e.g., family, property, employment, etc.) that is typical of other temporary visa applicants. The revisions should help deter denials of student visas by consular officers based on speculative conclusions about applicants’ future plans and possible immigrant intent.