USCIS Issues Guidance on Analyzing Employers’ Ability to Pay Wages
On March 15, 2023, USCIS published policy guidance on how the agency evaluates an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications. The guidance is effective immediately.
Employers seeking to classify prospective or current employees under the first, second, and third preference employment-based immigrant visa classifications that require a job offer must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition.
The relevant regulation requires the employer to submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date. If the employer has 100 or more workers, USCIS may instead accept a financial officer statement attesting to the employer’s ability to pay the proffered wage. The updated guidance also details various types of additional evidence employers may submit and explains how USCIS considers any evidence relevant to the employer’s financial strength and the significance of its business activities. Many employers satisfy the ability to pay requirement by submitting payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage.
The update also adds an appendix containing an overview of common business forms or structures to help officers and stakeholders better understand the types of petitioning entities filing Form I-140, Immigrant Petition for Alien Workers, or Form I-129, Petition for Nonimmigrant Worker. These business forms or structures are also relevant to the new commercial enterprises underlying a Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor. Specifically, the appendix includes information on how different types of businesses are formed, their fundamental characteristics, the various tax forms that each business organization files with the Internal Revenue Service, and basic tax terms.
USCIS Provides Guidance on Program for International Entrepreneurs
On March 10, 2023, USCIS issued comprehensive guidance on the parole program for international entrepreneurs. To enhance entrepreneurship, innovation and job creation in the United States, the Department of Homeland Security (DHS) published the International Entrepreneur Rule on Jan. 17, 2017.
This rule provides a framework for DHS to use its parole authority to grant a period of authorized stay, on a case-by-case basis, to noncitizen entrepreneurs who possess a substantial ownership interest in a start-up entity and who can demonstrate that their stay in the United States would provide a significant public benefit through that start-up entity’s potential for rapid business growth and job creation.
The published guidance in the Policy Manual includes information about:
The criteria for consideration for the applicant, the start-up entity, and the qualified investment or government award or grant;
Evidence and documentation;
The discretionary nature of the entrepreneur parole adjudication;
Conditions on parole and bases for termination;
The criteria for consideration for an additional parole period; and
Options available to the entrepreneur’s family to join the entrepreneur as parolees and, if eligible, to obtain employment authorization.
Although an individual who is paroled into the United States has not been admitted into the United States for purposes of immigration law, parolees may enter and remain in the United States and may be authorized to work.
Links:
USCIS Issues Policy Alert Regarding On-Site Inspections for Religious Worker Petitions
On March 2, 2023, USCIS Issued a Policy Alert regarding on-site inspections for religious worker petitions. The announcement indicated that USCIS is making premium processing available for religious workers without having to first undergo an on-site inspection before filing Form I-129 for the R-1 Classification.
USCIS also clarified that they are no longer conducting mandatory pre-approval compliance review on-site inspections of all petitioners for religious workers, and instead will be doing random selections for on-site inspections, which will normally occur after the approval of the petition. They also reserve the right to conduct “for cause” inspections at any time in cases where there is suspected non-compliance with the terms of the religious worker petition or for fraud. Lastly, USCIS clarified that, if applicable, USCIS may issue a request for evidence or notice of intent to deny based on the findings of a pre-adjudication inspection, or a notice of intent to revoke based on the findings of a post-adjudication inspection, and the petitioner will have an opportunity to respond.
Link: USCIS On-Site Inspections for Religious Worker Petitions
USCIS Issues Guidance About O-1B Visa Eligibility
USCIS published new policy guidance on O-1B visa eligibility on March 3, 2023. The guidance is effective immediately, and it clarifies how USCIS evaluates evidence to determine eligibility for O-1B nonimmigrants of extraordinary ability in the arts and nonimmigrants of extraordinary achievement in the motion picture or television industry.
The policy updates include a new chart in the USCIS Policy Manual’s appendix describing examples of evidence that may satisfy the O-1B evidentiary criteria, as well as considerations relevant to evaluating such evidence. The chart is also intended to assist petitioners in submitting appropriate evidence that may establish a beneficiary’s eligibility.
The guidance is meant to improve readability to help adjudicators with predictable and transparent application of the O-1B evidentiary requirements, in support of consistent decisions and improvements in efficiency.
Permanent Residents May Obtain Temporary Evidence of Status by Mail
Previously, if a permanent resident needed to obtain temporary evidence of their status in the form of an Alien Documentation Identification and Telecommunication (ADIT) or “I-551” stamp in their passport, the individual needed to make an appointment at their local USCIS Field Office to do so. On March 16, 2023, USCIS announced that they are now making it possible for Lawful Permanent Residents to receive temporary evidence of their lawful permanent resident status by mail rather than physically visiting a field office to receive an Alien Documentation, Identification and Telecommunication (ADIT) stamp (also known as an I-551 stamp). According to USCIS’s announcement, Lawful permanent residents are entitled to evidence of status and may require temporary evidence of their status in the form of an ADIT stamp if:
They do not have their Green Card; or
Their Form I-90, Application to Replace Permanent Resident Card (Green Card), Form I-751, Petition to Remove Conditions on Residence, or Form N-400, Application for Naturalization, is still pending adjudication and their Green Card and extension notice have expired.
These Lawful Permanent Residents may request temporary evidence of their status by calling the USCIS Contact Center, where an immigration services officer will verify their identity, their physical mailing address, and whether that address can receive UPS or FedEx express mail. The officer will then either schedule an in-person appointment for the lawful permanent resident, if needed, or submit a request to the USCIS field office to issue the ADIT stamp. If an in-person appointment is not needed, the USCIS field office will review the request for temporary evidence and mail the applicant a Form I-94 with ADIT stamp, DHS seal, and a printed photo of the lawful permanent resident obtained from USCIS systems.
If a Lawful Permanent Resident is requesting evidence of their status and has an urgent need, does not have a useable photo in USCIS systems, or whose address or identity cannot be confirmed, they may still need to appear in person in order to receive this temporary evidence of their status.
Link: USCIS Article
Extension of Parole for Certain Ukrainians Paroled into the United States After Russia’s Invasion of Ukraine
Certain Ukrainian nationals and immediate family members were paroled into the United States last year, on a case-by-case basis for urgent humanitarian reasons, during an approximate eight-week period after Russia’s unprovoked invasion of Ukraine and before the Uniting for Ukraine process was available. Such individuals were generally paroled for a period of one year, while participants in Uniting for Ukraine received a two-year period of parole.
With hostilities in Ukraine entering their second year, DHS assesses that there continue to be urgent humanitarian reasons, as well as a significant public benefit, for extending the parole of certain Ukrainians who arrived prior to Uniting for Ukraine. DHS will consider Ukrainian nationals and immediate family members who were paroled, on a case-by-case basis, before Uniting for Ukraine for an extension of the parole period and employment authorization, if applicable.
Specifically, individuals paroled into the United States at a port of entry between February 24, 2022 and April 25, 2022 will be considered for an extension. DHS is in the process of considering these individuals, on a case-by-case basis, for a one-year extension of their period of parole to align with the two-year parole period provided under Uniting for Ukraine. DHS estimates it will take approximately four weeks to consider and vet all the individuals in the group and will review cases based on the date of parole.
If an individual’s parole period is extended, DHS will proactively make available online an updated Form I-94 with the extended parole period. The period of parole will be extended from the current expiration date without a gap. Individuals can retrieve and download an updated Form I-94 as evidence of their extended parole period by visiting CBP’s Form I-94 website.
Those who have their period of parole extended will also be eligible to receive employment authorization for the additional year. Individuals who have Employment Authorization Documents (EADs) based on their parole and whose parole period is extended for an additional year will receive a Form I-797C from USCIS that can be used to demonstrate continued employment authorization through the extended parole period. The Form I-797C will be mailed to the address on file with USCIS. If you need to change your address, please change your address online through your existing USCIS online account or using the Form AR-11, Alien’s Change of Address Card, online using the Change of Address page.
If you believe you are part of this group but do not see an updated Form I-94 online by early April, please reach out to TCCPMO@cbp.dhs.gov. If you are part of this group and hold a valid EAD based on your parole but do not receive Form I-797C by the end of April, please reach out to UkrainianEADExtensions@uscis.dhs.gov. If you do not currently have an EAD but would like to apply for one based on your parole, you may file a Form I-765, Application for Employment Authorization, with USCIS. Ukrainian parolees are exempt from fees for first time applicants.
Ukrainian parolees may pursue multiple immigration pathways at the same time and this process does not impact other benefit requests including those who have applied for Temporary Protected Status (TPS), been granted TPS, or applied for asylum. However, parole will terminate automatically upon departure from the United States. Individuals with parole who plan to depart the United States and wish to return must first apply for advance parole in order to be considered for reentry into the United States."
REAL ID Enforcement Date Extended Until May 7, 2025
On May 3, 2021, DHS published an interim final rule (IFR) extending the card-based enforcement deadline to May 3, 2023. A new rule has been issued that finalizes the previous IFR and further extends the date for card-based enforcement of the REAL ID regulations from May 3, 2023 until May 7, 2025. Beginning on that date, Federal agencies are prohibited from accepting a state-issued driver’s license or identification card for official purposes unless such license or card is a REAL ID compliant driver’s license or identification card issued by a state that DHS has determined is in full compliance as defined under this part. The current regulations also permit Federal agencies to accept noncompliant driver’s licenses and identification cards for official purposes until May 2, 2023. This rule also extends that date, authorizing Federal agencies to continue to accept noncompliant driver’s licenses and identification cards for official purposes until May 6, 2025. This rule is effective on March 9, 2023.
Link: Federal Register Notice
First Round of H-1B Lottery Complete
On March 27, 2023, USCIS announced that they had finished conducting the first round of the registration selection process and had completed notifying all selected registrations of their status. While it is possible that USCIS might run an additional round of the lottery at a later date, it is not considered likely this year.
Employers and attorneys will need to log in to the USCIS registration portal in order to learn the status of each registration. To interpret the information in the USCIS H-1B lottery portal, registrations will have one of the below statuses:
Selected: “Selected” means that the registration was selected in the lottery. For selected registrations, employers will have 90 days to submit a complete H-1B petition to USCIS for adjudication. The H-1B petition filing window begins on April 1, 2023 and ends on June 30, 2023.
Submitted: Properly submitted registrations, which have not been selected in the lottery, will be held “in reserve” in the event that USCIS does not receive an H-1B petition for each selected registration. There is a possibility that USCIS will hold a subsequent lottery later in the year and select some of those registrations that are being held in reserve. These registrations will continue to show a status of “submitted,” likely until after the end of the petition filing window, when USCIS will determine if a petition was filed for each of the selected registrations. In two of the past three years, USCIS has conducted a second H-1B lottery in late July.
Denied / Invalidated-Failed Payment: A registration will be denied if an employer submitted duplicate registrations for the beneficiary or if payment was declined and not reconciled.
If you have been selected in the H-1B lottery, or have any questions regarding the H-1B lottery process or would like to discuss alternatives to an H-1B visa, please reach out to info@iandoli.com to schedule a consultation with one of our attorneys.
Link: https://www.uscis.gov/newsroom/alerts/fy-2024-h-1b-cap-season-updates
We’re Hiring!
Iandoli, Desai, and Cronin P.C. has an immediate opening for a full-time Immigration Paralegal. We are dynamic eight attorney and twelve paralegal immigration law firm serving professionals, businesses, and academic institutions. Our clients are leaders in medicine, engineering, biotechnology, and academia. The paralegal will primarily
Assist attorneys in the preparation and filing of employment-based immigrant (EB-1, EB-2, and EB-3) and nonimmigrant (H-1B, O-1, E-2, E-3, L-1 and TN) petitions and supporting documentation.
Assemble petitions and application packages.
Communicate with individual clients, HR representatives and government agencies.
Help individuals gather necessary information/documents.
Use specialized Case Management software to monitor deadlines and expirations and draft petitions and applications.
Draft support letters and other documents
Track client communications and government correspondence
Additional administrative duties may include answering phones, scheduling appointments, generating invoices, filing, and other ad hoc tasks.
Must have a bachelor’s degree and excellent writing, computer, interpersonal, organizational, and time management skills. Must be able to meet rigid deadlines and prioritize tasks.
NO JDs, LLBs, LLMs, or current/matriculating law students.
Please email résumé and cover letter to careers@iandoli.com
No phone calls please. Only those candidates selected for an interview will be contacted.
March 2023 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 March 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 is December 1, 2022. All otherwise qualified individuals with a priority date before December 1, 2022, may file their I-485 applications. The Visa Bulletin states the following regarding the EB-2 category:
“Since December 2022, there has been higher than expected number use and demand, mostly due to continued new filings by applicants from all countries with priority dates earlier than the established final action dates. This will necessitate corrective action in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.”
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:
“Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.”
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).