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Immigration Update

Jan 31, 2022 | Immigration Updates

In this edition, find the latest news on the dates for Fiscal Year 2023 H-1B Cap Registration, USCIS releasing interfiling guidance and giving encouragement to interfile due to a high number of available employment-based Green Cards, the DHS and DOL announcing availability of additional H-2B Visas, and more!

FY 2023 H-1B Cap Initial Registration Period Opens March 1

The initial registration period for the fiscal year (FY) 2023 H-1B cap will open at noon ET on March 1, 2022, and run through noon ET on March 18, 2022, U.S. Citizenship and Immigration Services (USCIS) announced. During this period, prospective petitioners and representatives will be able to complete and submit their registrations using the USCIS online H-1B registration system, for foreign workers with an October 1, 2022, start date.

USCIS will assign a confirmation number to each registration submitted for the FY 2023 H-1B cap. USCIS said that this number is used solely to track registrations and cannot be used to track case status in Case Status Online.

USCIS said prospective H-1B cap-subject petitioners or their representatives must use a myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners submitting their own registrations (“registrants”—U.S. employers and U.S. agents) will use a “registrant” account. Registrants will be able to create new accounts beginning at noon ET on February 21, 2022, but must wait until March 1 to enter beneficiary information and submit the registration with fee.

If USCIS receives enough registrations by March 18, it will randomly select registrations and send selection notifications via users’ myUSCIS online accounts. The agency said it will notify selected account holders by March 31.

USCIS noted that an H-1B cap-subject petition, including a petition for a beneficiary who is eligible for the advanced degree exemption, may only be filed by a petitioner whose registration for the beneficiary named in the H-1B petition was selected in the H-1B registration process.

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USCIS Notes ‘Exceptionally High Number’ of Employment-Based Green Cards Available This Fiscal Year – Encourages Interfiling

U.S. Citizenship and Immigration Services (USCIS) recently issued an alert noting that an “exceptionally high number” of employment-based green cards are available this fiscal year (October 2021 through September 2022).

USCIS said that it is committed, in “partnership with the U.S. Department of State,” to “attempting to use all these visa numbers.” USCIS said many more visas are available in the first (priority workers) and second (workers with advanced degrees of exceptional ability) employment-based green card categories than there are adjustment of status applications pending with USCIS.

USCIS provided the following advice:

If you are eligible, please consider applying in the first or second employment-based preference categories. If you have a pending adjustment of status application based in the third employment-based preference category but also have a pending or approved petition and an available visa in the second employment-based preference category, we strongly encourage you to request that USCIS “transfer the underlying basis” of your pending application to the second employment-based preference category.

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DHS, DOL Announce Availability of Additional H-2B Visas for First Half of Fiscal Year

The Departments of Homeland Security (DHS) and Labor (DOL) announced the availability of 20,000 additional H-2B temporary nonagricultural worker visas for the first half of fiscal year (FY) 2022. The visas are for “U.S. employers that are facing irreparable harm without additional workers and [are] seeking to employ additional workers on or before March 31, 2022.” The additional H-2B visas became available to employers on January 28, 2022.

DHS said that this supplemental cap increase “marks the first time that DHS is making additional H-2B visas available in the first half of the fiscal year.”

The supplemental H-2B visa allocation includes 13,500 visas available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. The remaining 6,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti, El Salvador, Guatemala, and Honduras.

In support of the rule, DOL’s Office of Foreign Labor Certification (OFLC) posted a new Form ETA-9142-B-CAA-5 and accompanying instructions. The temporary rule requires an employer to attest, among other things, to the fact that it is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase. The employer must submit the attestation to USCIS along with Form I-129, in support of an H-2B application subject to the H-2B cap before March 31, 2022.

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USCIS Updates Guidance on Expedite Requests

U.S. Citizenship and Immigration Services (USCIS) updated its Policy Manual to reflect new guidance, effective immediately, on how the agency determines whether a case warrants expedited treatment. The update:

  • Clarifies the criteria and circumstances under which USCIS generally considers expedite requests from nonprofit organizations as determined by the Internal Revenue Service;
  • Provides additional examples of when USCIS may consider expedite requests made by federal, state, or local agencies, including labor and employment agencies;
  • Adds examples to further illustrate how the expedite criteria relate to emergencies and urgent humanitarian reasons; and
  • Explains that some circumstances may affect or delay the agency’s ability to expedite an application or petition.

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CBP Announces New COVID-19 Vaccine Requirement for the Non-U.S. Travelers Entering Via Land and Ferry from Canada, Mexico

As of January 22, 2022, the Department of Homeland Security (DHS) is requiring non-U.S. individuals seeking to enter the United States via land ports of entry and ferry terminals at the U.S.-Mexico and U.S.-Canada borders to be fully vaccinated for COVID-19 and provide related proof of vaccination. DHS said this was necessary as COVID-19 cases continue to rise nationwide.

The new restriction applies to non-U.S. individuals who are traveling for both essential and non-essential reasons. It does not apply to U.S. citizens, lawful permanent residents, or U.S. nationals.

The Biden administration previously ordered that noncitizen nonimmigrants be vaccinated against COVID-19 before entering the United States by air, except in limited circumstances.

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Related Posts:

USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions

On February 3, 2021, U.S. Citizenship and Immigration Services (USCIS) rescinded PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions.’ ” USCIS said its officers should not apply the rescinded memo “to any pending or new requests for H-1B classification, including motions and appeals of revocations and denials of H-1B classification,” and that further guidance is forthcoming. USCIS explained that on December 16, 2020, the U.S. Court of Appeals for the 9th Circuit issued a decision in Innova Solutions v. Baran, where the court overturned USCIS’s denial of an H-1B nonimmigrant visa petition as arbitrary and capricious. The court’s opinion noted that while USCIS did not explicitly rely on PM-602-0142, the denial followed its logic. To ensure “consistent adjudications across the H-1B program, USCIS is rescinding PM-602-0142,” the new USCIS policy memorandum said. For more information please see: Source: https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf

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Immigration Update

In this edition, find the latest news on TPS Designation Extensions, USCIS Policy Updates for J Nonimmigrants, Travel Document E-Filing and more!  DHS Reinstates, Extends TPS Designations for El Salvador, Honduras, Nepal, and Nicaragua The Department of Homeland Security (DHS) has rescinded the Trump administration’s terminations of the temporary protected status (TPS) designations for El Salvador, Honduras, Nepal, and Nicaragua, and extended TPS for these countries for 18 months.   Upcoming Federal Register notices will explain the eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register for TPS and renew their employment authorization documents (EADs). Once the notices are published, existing TPS beneficiaries under the four designations will be able to re-register to continue their TPS throughout the 18-month extension, DHS said. Those who arrived in the United States after the continuous residence dates for these designations are not eligible for TPS. Those dates are February 13, 2001 (El Salvador); December 30, 1998 (Honduras and Nicaragua); and June 24, 2015 (Nepal).  Below are details about the date ranges for the extension and re-registration period for each country:  Details:  Back to Top USCIS Updates Policy on Its Role in Adjudicating Waivers and Change-of-Status for J Nonimmigrant Exchange Visitors U.S. Citizenship […]

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