February 2023

Initial Registration for FY 2024 H-1B Cap Opens March 1

U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for the fiscal year (FY) 2024 H-1B cap will open at noon ET on March 1, 2023, and run through noon ET on March 17, 2023.

Prospective H-1B cap-subject petitioners or their representatives must use a my USCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration. Prospective petitioners submitting their own registrations (U.S. employers and U.S. agents, collectively known as “registrants”) will use a “registrant” account. Registrants can create new accounts beginning at noon ET on February 21, 2023. Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 1 to enter beneficiary information and submit the registration with the $10 fee, USCIS said. Prospective petitioners or their representatives can submit registrations for multiple beneficiaries in a single online session.

USCIS noted that the U.S. Department of the Treasury has approved a temporary increase in the daily credit card transaction limit from $24,999.99 to $39,999.99 per day for the FY 2024 H-1B cap season. “This temporary increase is in response to the volume of previous H-1B registrations that exceeded the daily credit card limit,” USCIS explained.

USCIS said it plans to notify account holders by March 31.

For FY 2023, USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations projected as needed to reach the FY 2023 numerical allocations. For FY 2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations. USCIS conducted a second selection in July 2021 of an additional 27,717 registrations due to low filing volume from the initial selection. USCIS also conducted a third selection in November 2021 of an additional 16,753 registrations. This resulted in a total of 131,970 selected registrations for FY 2022. Many people think the number of initial registrants will be higher this year.

Details:

• USCIS alert, Jan. 27, 2023. https://rb.gy/tzicqo
• “H-1B Registration Process,” USCIS. https://rb.gy/yayggp

Certain Asylum Applicants Can Now Apply for Work Authorization Online

Applicants for employment authorization under category (c)(8), Pending Asylum and Withholding of Removal Applicants and Applicants for Pending Asylum under the ABC Settlement Agreement, can now file Form I-765, Application for Work Authorization, online.

To apply for an Employment Authorization Document (EAD) based on a pending asylum application under the (c)(8) eligibility category, the applicant may file Form I-765 150 days after filing the asylum application. The filing date is the date U.S. Citizenship and Immigration Services (USCIS) receives a properly filed Form I-589, Application for Asylum and Withholding of Removal. The date can be found on the receipt notice.

To file Form I-765 online, an applicant must first create a USCIS online account. There is no cost to create an account.

Details:

• USCIS alert, Jan. 23, 2023. https://www.uscis.gov/newsroom/alerts/asylum-applicants-can-now-file-form-i-765-online

Green Card Validity Extended for Conditional Permanent Residents with a Pending I-751 or I-829

U.S. Citizenship and Immigration Services (USCIS) is extending the validity of Permanent Resident Cards (green cards) for petitioners who properly file Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, for four years beyond the card’s expiration date. This change started on January 11, 2023, for Form I-829 and on January 25, 2023, for Form I-751. Previously, these forms were valid for two years.

USCIS said it is making this change “to accommodate current processing times for Form I-751 and Form I-829, which have increased over the past year.” USCIS has updated the language on Form I-751 and Form I-829 receipt notices to extend the validity of a green card for 48 months for individuals with a newly filed Form I-751 or Form I-829. The agency said it will issue new receipt notices to eligible conditional permanent residents who previously received notices with an extension shorter than 48 months and whose cases are still pending. These receipt notices can be presented with an expired green card as evidence of continued status while the case remains pending with USCIS, the agency said: “By presenting your updated receipt notice with your expired Green Card, you remain authorized to work and travel for 48 months from the expiration date on the front of your expired Green Card.”

Details:

• USCIS alert, Jan. 23, 2023. https://www.uscis.gov/newsroom/alerts/uscis-extends-green-card-validity-for-conditional-permanent-residents-with-a-pending-form-i-751-or

USCIS Extends COVID-19-Related Flexibilities Through March 23

U.S. Citizenship and Immigration Services (USCIS) is extending certain COVID-19-related flexibilities through March 23, 2023. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date for the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and March 23, 2023:

• Requests for Evidence
• Continuations to Request Evidence (N-14)
• Notices of Intent to Deny
• Notices of Intent to Revoke
• Notices of Intent to Rescind
• Notices of Intent to Terminate regional centers
• Notices of Intent to Withdraw Temporary Protected Status
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

In addition, USCIS said it will consider Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

• The form was filed up to 90 calendar days from the issuance of a decision USCIS made; and
• USCIS made that decision between November 1, 2021, and March 23, 2023, inclusive.

USCIS said it “anticipates that, barring changes presented by the pandemic, this will be the final extension of these accommodations, and requesters must comply with the response requirements set forth in any request or notice dated after March 23, 2023.”

The reproduced signature flexibility announced in March 2020 became permanent policy on July 25, 2022.

Details:

• USCIS alert, Jan. 24, 2023. https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities-1

New Settlement Agreement Helps H-4 and L-2 Dependent Spouses

The Department of Homeland Security (DHS) reached a settlement agreement in Edakunni v. Mayorkas which is good news for H-4 and L-2 dependent spouses. Effective January 25, 2023, U.S. Citizenship and Immigration Services (USCIS) has returned to a pre-Trump administration policy of adjudicating Form I-539, Application to Extend/Change Nonimmigrant Status and Form I-765, Application for Employment Authorization for H-4 and L-2 derivatives, along with the underlying Form I-129, Petition for Nonimmigrant Worker, when these forms are filed concurrently.

This applies in cases filed using standard or premium processing. If these forms are filed separately, USCIS will not bundle the adjudication of the forms.

Details:

• Edakunni v. Mayorkas settlement agreement, https://nfap.com/wp-content/uploads/2023/01/Fully-Executed-Edakunni-SA_Redacted.pdf
• “USCIS Settles Lawsuit That Should Help H-1B and L-1 Visa Spouses,” Forbes, Jan. 21, 2023. https://www.forbes.com/sites/stuartanderson/2023/01/21/uscis-settles-lawsuit-that-should-help-h-1b-and-l-1-visa-spouses/?sh=75dfd209216a

Visa Bulletin for February 2023 Includes Retrogressions in the Employment Third Preference ‘Other Workers’ Category, and ‘Certain Religious Workers’ Availability

The Department of State’s Visa Bulletin for February 2023 includes the following information about retrogressions in the worldwide final action and application filing dates in the employment third preference “Other Workers” category:

Higher than expected number used in the Employment Third Preference “Other Workers” (EW) category, most notably amongst applicants with earlier priority dates, has necessitated further retrogressions in the worldwide final action date and application filing date for February to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. Except for China and India, all countries are subject to a final action date of 01JAN20 and an application filing date of 01FEB20. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

The bulletin also notes the availability of the Certain Religious Workers category:

The Consolidated Appropriations Act, 2023, enacted on December 29, 2022, extended the Employment Fourth Preference Certain Religious Workers (SR) category until September 30, 2023. As indicated in item E of the January 2023 Visa Bulletin, the extension resulted in this category immediately becoming available, subject to the same final action dates as the other Employment Fourth Preference categories per applicable foreign state of chargeability.

Details:

• DOS Visa Bulletin for February 2023. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-february-2023.html

HHS Issues Poverty Guidelines for 2023

The Department of Health and Human Services (HHS) issued updated poverty income guidelines for 2023 to account for 2022’s increase in prices as measured by the Consumer Price Index. Several federal programs use the poverty guidelines as an eligibility criterion.

As in prior years, the 2023 guidelines “are roughly equal to the poverty thresholds for the calendar year 2022 which the Census Bureau expects to publish in final form in September 2023,” HHS said. As an example, the 2023 poverty guidelines for the 48 contiguous states and the District of Columbia (DC) are $14,580 annually for a household of one person and $19,720 for a household of two. For families/households with more than eight persons, the guidelines add $5,140 for each additional person. The Alaska and Hawaii guidelines differ from those for the 48 contiguous states and DC.

Details:

• Annual Update of the HHS Poverty Guidelines, 88 Fed. Reg. 3424 (Jan. 19, 2023). https://www.govinfo.gov/content/pkg/FR-2023-01-19/pdf/2023-00885.pdf  

DOS Launches ‘Welcome Corps’ for Private Sponsorship of Refugees

The Department of State (DOS), in collaboration with the Department of Health and Human Services, announced the launch of “Welcome Corps,” a new private sponsorship program to welcome refugees arriving through the U.S. Refugee Admissions Program (USRAP) and support their resettlement and integration into the United States. The initiative is pursuant to President Biden’s Executive Order 14301, “Rebuilding and Enhancing Programs to Resettle Refugees.”

The Welcome Corps “creates new opportunities for everyday Americans to engage directly in refugee resettlement through private sponsorship, independent of and complementary to existing avenues for volunteering with resettlement agencies,” DOS said. Groups of at least five U.S. citizens or permanent resident adults will be able to apply to the Welcome Corps to privately sponsor the resettlement of refugees in the United States. Private sponsors will be responsible for independently raising funds and directly providing essential assistance to refugees for their first 90 days in their new community, DOS said. Such assistance includes helping refugees find housing and employment, enrolling children in school, and connecting refugees to essential services in the community.

In the first year of Welcome Corps, DOS will seek to mobilize 10,000 Americans as private sponsors for at least 5,000 refugees. If more than 10,000 individual Americans join the Welcome Corps in 2023, DOS will seek to pair additional private sponsors with refugees. DOS said it is funding a consortium of nonprofit organizations with expertise in welcoming, resettling, and integrating refugees into U.S. communities to support the Welcome Corps.

Details:

• DOS statement, https://bit.ly/3wkiC3n
• Welcome Corps website, https://welcomecorps.org/

USCIS Provides Follow-Up Q&A on International Student Issues

U.S. Citizenship and Immigration Services (USCIS) provided questions and answers following a webinar presented by the Office of the Citizenship and Immigration Services Ombudsman in August 2022 on international student issues.

Topics include maintaining F-1 status and Optional Practical Training (OPT), applications for employment authorization, Systematic Alien Verification for Entitlements, the Student and Exchange Visitor Information System, changes of address, and COVID-19-related issues.

Details:

• USCIS Follow-Up Q&A. https://www.dhs.gov/sites/default/files/2023-01/Q%26A%20-%20international%20student%20engagement%208.25.22.pdf

DHS Streamlines Deferred Action Process for Immigrant Workers Participating in Labor Enforcement Investigations

The Department of Homeland Security (DHS) announced on January 13, 2023, that noncitizen workers who are victims of or witnesses to the violation of labor rights can now access a streamlined and expedited deferred action request process. DHS explained that deferred action “protects noncitizen workers from threats of immigration-related retaliation from the exploitive employers.” Effective immediately, DHS said, the process “will improve DHS’s longstanding practice of using its discretionary authority to consider labor and employment agency-related requests for deferred action on a case-by-case basis.”

A centralized intake process “will allow DHS to efficiently review these time-sensitive requests, provide additional security to eligible workers on a case-by-case basis, and more robustly support the mission of labor agencies,” DHS said. Noncitizens can submit such requests to U.S. Citizenship and Immigration Services (USCIS) through a central intake point established to support labor agency investigative and enforcement efforts. In addition to satisfying individual criteria to facilitate case-by-case determinations, requests for deferred action submitted through this centralized process must include a letter from a federal, state, or local labor agency asking DHS to consider exercising its discretion on behalf of workers employed by companies identified by the agency as having labor disputes related to laws that fall under its jurisdiction.

DHS said that for a deferred action request from a noncitizen who is in removal proceedings or has a final order of removal, upon reviewing the submission for completeness, USCIS will forward it to U.S. Immigration and Customs Enforcement (ICE) to make a final determination on a case-by-case basis. USCIS will consider all other deferred action requests on a case-by-case basis and will consider all related employment authorization applications, including those related to deferred action requests decided by ICE.

Discretionary grants of deferred action under this process “will typically last for a period of two years, subject to termination at any time,” DHS said. Individuals granted deferred action may be eligible for employment authorization, which requires that they demonstrate an economic necessity for employment. They may also be eligible for subsequent grants of deferred action if a labor agency has a continuing investigative or enforcement interest in the matter identified in their original letter supporting DHS’s use of prosecutorial discretion, the agency said.

Workers can visit DHS.gov for additional information in English and Spanish and submit requests.

Details:

• DHS press release, Jan. 13, 2023. https://www.dhs.gov/news/2023/01/13/dhs-announces-process-enhancements-supporting-labor-enforcement-investigations
• “DHS Support of the Enforcement of Labor and Employment Laws,” Jan. 13, 2023. https://www.dhs.gov/enforcement-labor-and-employment-laws

Premium Processing To Expand for EB-1 and EB-2 Form I-140 Petitions and Certain Students and Exchange Visitors

U.S. Citizenship and Immigration Services (USCIS) announced on January 12, 2023, that it is implementing the final phase of the premium processing expansion for Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications.

Also, in March, USCIS will expand premium processing to certain F-1 students seeking Optional Practical Training (OPT) and F-1 students seeking STEM OPT extensions who have a pending Form I-765, Application for Employment Authorization. In April, USCIS will expand premium processing to F-1 students seeking OPT and F-1 students seeking STEM OPT extensions who are filing an initial Form I-765.

Petitioners who wish to request premium processing must file Form I-907, Request for Premium Processing Service. Beginning January 30, 2023, USCIS will accept Form I-907 requests for:

• All pending E13 multinational executive and manager petitions and E21 National Interest Waiver (NIW) petitions; and
• All initial E13 multinational executive and manager petitions and E21 NIW petitions.

USCIS said it will announce specific dates for each F-1 student group in February. USCIS anticipates expanding premium processing in May for certain student and exchange visitors with pending Form I-539 applications to extend or change nonimmigrant status, and in June for certain student and exchange visitors who are filing initial Form I-539 applications.

Details:

• USCIS alert, Jan. 12, 2023. https://www.uscis.gov/newsroom/alerts/uscis-announces-final-phase-of-premium-processing-expansion-for-eb-1-and-eb-2-form-i-140-petitions

KLASKO NEWS

FIRM NEWS

Klasko Immigration Law Partners recently hosted two webinars the 2023 H-1B Cap Season and on H-1B and Alternatives for Startups. Recordings of the webinars are now available!

IN THE NEWS

William A. Stock
Bill Stock was quoted in this Law360 article on the new USCIS visa fees.

RECENT SPEAKING ENGAGEMENTS

William A. Stock | Maria M. Mihaylova | Carolina Regales
Bill, Maria, and Carolina looked back at the 2022 Cap Season for lessons learned to help companies plan for the upcoming 2023 H-1B lottery, as well as provided updates on regulations and litigation outcomes. View recording here!

Elise A. Fialkowski | Andrew J. Zeltner | Nigel D. James
Elise, Andrew, and Nigel covered how startup companies can utilize the H-1B visa program, how to prepare for the upcoming lottery, and H-1B alternatives. View recording here!

H. Ronald Klasko
Ron Klasko spoke at the 2023 AILA Midwinter Conference in San Juan, Puerto Rico on a panel entitled Common NIV Myths.

William A. Stock
Bill Stock spoke at the 2023 AILA Midwinter Conference in San Juan, Puerto Rico on a panel entitled Tackling Post-Pandemic Challenges.

Nigel D. James | Grace W. Waweru
Nigel James and Grace Waweru presented to Arcadia University on visa options beyond OPT for students.

UPCOMING SPEAKING ENGAGEMENTS

H. Ronald Klasko
Ron Klasko will be speaking at the 44^th Annual AILA South Florida event in Miami, Florida on a panel entitled Employment-based Adjustment: Entering the Maze.

ICYMI: RECENT BLOG POSTS AND ALERTS

U.S. Immigration Law Limits International Digital Nomads
In this article, Sarah Holler addresses which countries allow foreign nationals to work fully remotely while traveling internationally.

Client Alert: New Settlement Agreement Favorably Impacts H-4 and L-2 Dependent Spouses
In this client alert, Nigel James delivers welcoming news as the Department of Homeland Security reaches a settlement agreement of USCIS returning to pre-Trump administration policies.

FIRM FEATURE

Klasko Cares! Last month, Klasko employees volunteered with City Year on Martin Luther King, Jr. Day. Klasko employees helped paint art along the walls of a Philadelphia school.

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.