February Visa Bulletin

Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether a backlog exists for each one.  In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.

For February 2023, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin may file an application for permanent resident status [Form I-485].

In February, the EB-1 preference category on the Final Action Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140. However, applicants from China and India are subject to the final action date of February 1, 2022.

The EB-2 preference category remains retrogressed for all countries (including China and India) which means that individuals in these categories will not be able to file I-485 applications unless they have a “current” priority date.  The priority date for all countries except India and China in the EB-2 preference remains November 1, 2022.  All otherwise qualified individuals with a priority date before November 1, 2022, may file their I-485 applications.

The EB-3 preference category is “current” for all countries (excluding China and India) but is expected to backlog in the future. The Visa Bulletin states the following regarding the EB-3 category:

“Higher than expected number use 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.”

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).

Department of Homeland Security Announces Special Student Relief for Haitian Students

The Department of Homeland Security published a notice in the Federal Register on January 25, 2023 announcing the suspension of certain regulatory requirements for Haitian students in F-1 nonimmigrant status who are experiencing severe financial hardship. The notice temporarily suspends all on- and off-campus employment regulations for eligible Haitian students. These suspensions will remain in effect through August 3, 2024. Immigration and Customs Enforcement (ICE) has published a F-1 Fact Sheet for Special Student Relief on its website.

U.S. Citizenship and Immigration Services to Expand Premium Processing to Certain F-1 Students Seeking OPT and STEM OPT

U.S. Citizenship and Immigration Services (USCIS) announced that premium processing will be expanded in March for F-1 students seeking Optional Practical Training (OPT) and STEM OPT extensions with a pending Form I-765, Application for Employment Authorization. Beginning in April, premium processing will be expanded to initial filings of Form I-765 for OPT and STEM OPT. The specific dates in March and April will be announced this month.

U.S. Citizenship and Immigration Services Redesigns Green Card and Employment Authorization Document

U.S. Citizenship and Immigration Services (USCIS) announced that it began issuing redesigned Green Cards and Employment Authorization Documents (EADs) on January 20, 2023. USCIS stated that some Green Cards and EADs issued after this date may still display the existing design format, but both versions of the cards are acceptable for Form I-9, Employment Eligibility Verification, and E-Verify. The M-274 Handbook for Employers describes the changes in each document.

U.S. Citizenship and Immigration Services Announces Final Phase of Premium Processing Expansion for Certain I-140 Petitions

U.S. Citizenship and Immigration Services (USCIS) has implemented 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. Beginning January 30, 2023, USCIS will accept Form I-907, Request for Premium Processing Service, for all pending and initial EB-1C (“Multinational Executives and Managers”) and EB-2 NIW (“National Interest Waiver”) petitions.

U.S. Citizenship and Immigration Services to Resume Adjudication of H-4, H-4 EAD, and L-2 Applications with Form I-129

In a major settlement agreement in Edakunni v. Mayorkas, U.S. Citizenship and Immigration Services (USCIS) agreed to resume processing H-4, H-4 EAD, and L-2 applications in conjunction with Form I-129, Petition for a Nonimmigrant Worker. These applications are filed to extend the status and/or work authorization of certain foreign workers’ dependents. Previously, these applications were approved in tandem with the primary worker’s Form I-129 petition. The institution of the biometrics requirement in 2019 and the COVID-19 pandemic created significant delays in the adjudication of dependents’ applicants. More than 100 plaintiffs sued the Department of Homeland Security and a settlement agreement was reached on January 20, 2023 to avoid further litigation. Effective January 25, 2023 and for the next two years, USCIS will concurrently adjudicate Form I-539 and Form I-765 concurrently with Form I-129 for H and L dependent family members. Please note that L-2 spouses will continue to receive L-2S on their I-94 records upon entry to the United States to permit work authorization and do not need to file Form I-765.

Department of Homeland Security Announces New Parole Program for Cuba, Haiti, Venezuela, and Nicaragua

On January 5, 2023, the Department of Homeland Security announced a new parole program for individuals in Cuba, Haiti, Nicaragua, and Venezuela to safely and legally travel to the United States. Individuals in the designated countries must have U.S.-based financial support and undergo a security screening before traveling to the United States. U.S.-based individuals must file Form I-134A, Online Request to be a Supporter and Declaration of Financial Support on the USCIS website to initiate the process. USCIS has created a resource page for additional information on program eligibility and requirements.

This program is free to use and does not require the U.S.-based supporter or the foreign national to pay the government a fee. Please be cautious of recent scams sent via email, text and messaging apps, and social media promising U.S.-based sponsorship for a fee.

Asylum Applicants Can Now File Form I-765 Online

U.S. Citizenship and Immigration Services (USCIS) announced on January 23, 2023 that applicants with pending asylum applications under category (c)(8) (“Asylum application under ABC Agreement”) may file Form I-765 online to apply for an Employment Authorization Document (EAD) 150 days after filing the asylum application.

Department of Homeland Security Announces Registration Process for Temporary Protected Status of Haiti

The Department of Homeland Security (DHS) posted a Federal Register notice on Temporary Protected Status (TPS) for Haiti on January 25, 2023. The notice provides information about how to register or re-register for Temporary Protected Status (TPS) under Haiti’s extension and redesignation for an additional 18 months, from February 4, 2023, through August 3, 2024. DHS stated that current TPS beneficiaries seeking extensions must re-register during the 60-day re-registration period from January 26, 2023, through March 27, 2023, to ensure they keep their TPS and employment authorization without a gap.

U.S. Citizenship and Immigration Services Extends COVID-19 Flexibilities to March 23, 2023

U.S. Citizenship and Immigration Services 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 set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and March 23, 2023, inclusive:

• 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; and

• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or a 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 USCIS decision; and

• USCIS made that decision between November 1, 2021, and March 23, 2023, inclusive.

USCIS 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.