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Immigration Update

Apr 17, 2023 | Immigration Updates

In this edition, find the latest news on H-2B petitions, predictions for the May visa bulletin and the six new DHS subcommittees.  

Employers May File H-2B Petitions for Late Second Half of FY 2023

On April 13, 2023, U.S. Citizenship and Immigration Services (USCIS) began accepting petitions for workers for the late second half of fiscal year (FY) 2023—those requesting employment start dates from May 15, 2023, to September 30, 2023—under the H-2B supplemental cap temporary final rule. USCIS said the 10,000 visas available under this allocation are limited to returning workers who were issued H-2B visas or held H-2B status in FYs 2020, 2021, or 2022, regardless of country of nationality. These supplemental visas are available “only to U.S. businesses that are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested in their petition, as attested by the employer on a new attestation form,” USCIS noted. 

The temporary final rule published in December 2022 increased the numerical limit (cap) on H-2B nonimmigrant visas by up to 64,716 additional visas for all of FY 2023. Of the 64,716 additional visas, 44,716 are available only for returning workers (workers who received an H-2B visa or were otherwise granted H-2B status in one of the last three fiscal years). The remaining 20,000 visas are set aside for nationals of El Salvador, Guatemala, Honduras, and Haiti, who are exempt from the returning worker requirement. As of April 10, 2023, USCIS had received petitions requesting 11,537 workers under the 20,000 visas set aside for nationals of those countries. 

USCIS said that petitions requesting supplemental allocations under the rule must be filed at the California Service Center. Such petitions filed “at any location other than the California Service Center will be rejected and the filing fees will be returned.” 

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Visa Bulletin for May Predicts Further Retrogressions in Some Employment-Based Categories

The Department of State’s Visa Bulletin for May 2023 includes a variety of updates: 

  • Retrogression is likely in the final action dates for China and India in EB-1 visa number availability in the coming months. 
  • EB-2 final action dates for the Rest of World, Mexico, and Philippines categories have retrogressed further to 15FEB22 due to higher-than-expected demand, following retrogression in April. 
  • The India EB-2 and EB-5 final action dates will retrogress “as early as next month” to keep visa issuances within their annual per-country limits. “Every effort will be made in October to return the final action dates to at least the final action dates announced for April,” the bulletin says. 
  • The EB-3 final action date of 01JUN22 is effective in May for the Rest of World, Mexico, and Philippines. 
  • “[F]urther corrective action” is likely in the final action dates for the EB-3 “Other Workers” category for the Rest of World, Mexico, and Philippines in the coming months. 

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DHS Announces Six New Subcommittees for Homeland Security Advisory Council

The Department of Homeland Security (DHS) announced six new subcommittees for its Homeland Security Advisory Council (HSAC). HSAC comprises leaders in local law enforcement; first responders; state, local and tribal governments; national policy; the private sector; and academia. DHS said the notice is “not a solicitation for membership.” 

Topics for the new subcommittees will include (1) development of DHS’s artificial intelligence (AI) strategy, to be divided into two subcommittees: one on how DHS can best use AI to advance critical missions, and one on how DHS can build defenses to the nefarious use of AI; (2) potential revisions to grant programs, including risk methodology, in light of the changed threat landscape over the past 20 years; (3) a review of the immigration Alternatives to Detention programs and recommendations to modernize them and make them more effective; and (4) potential revisions to the DHS workplace and workforce skill set, to be divided into two subcommittees: one to review DHS’s current diverse work environments, from secure spaces and ports of entry to remote offices, and make recommendations for the workplace of the future; and one to assess the alignment of workforce skills with work responsibilities in discrete, critical mission areas. 

DHS expects that the subcommittees’ findings and recommendations will be submitted to the HSAC for its deliberation and vote during a public meeting in mid- to late summer 2023. 

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