USCIS Has Reached Fiscal Year 2023 H-1B Cap
USCIS has officially announced that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023. No additional selections from this year’s lottery will be made.
USCIS has completed sending non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, will now show:
- Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
USCIS Announces Automatic Extension of Certain EAD’s
USCIS has announced that effective tomorrow, May 4, 2022, the Department of Homeland Security (DHS) is temporarily amending existing DHS regulations related to expiring employment authorization and Employment Authorization Documents (EADs) for certain renewal applicants. The prior extension period of up to 180 days will automatically increase to up to 540 days from the expiration date stated on their current EADs.
The up to 540-day automatic EAD extension only applies to those EAD categories currently eligible for the previous up to 180-day automatic extension of employment authorization and EAD validity. USCIS will provide up to 360 days (for a total of up to 540 days) of additional automatic extension time to eligible applicants with a pending EAD renewal application on the temporary rule’s effective date and for 540 days thereafter (that is, from May 4, 2022 to Oct. 26, 2023).
Applicants with pending I-765 renewal applications as of May 4, 2022, will not receive a new receipt notice reflecting the increased EAD automatic extension period. However, Form I-797C notices that refer to a 180-day automatic extension will still meet the regulatory requirements for employment authorization. Therefore, individuals who show Form I-797C notices that refer to a 180-day extension, along with their qualifying EADs, still receive the up to 540-day extension under this rule.
Updated USCIS Guidance on National Interest Waivers
On January 21, 2022, U.S. Citizenship and Immigration Services announced updated guidance on adjudicating requests for “National Interest Waivers” of the job offer and labor certification requirements for certain advanced degree professionals and individuals of exceptional ability. This guidance includes a new emphasis on the unique considerations involving persons with advanced degrees in science, technology, engineering, and math (STEM) fields and entrepreneurs.
An employer seeking to hire a noncitizen must generally obtain a permanent labor certification from the Department of Labor that proves there are no qualified U.S. workers for the position they are seeking and that their employment will not adversely affect similarly employed U.S. workers. The noncitizen advanced degree professional or individual of exceptional ability may, however, seek a waiver of a job offer and labor certification requirement by filing a self-petition I-140 Visa Petition (without a job offer) if they can show that their stay in the U.S. is in the National Interest.
Individuals seeking a national interest waiver must show evidence of an advanced degree or exceptional ability, and must also meet three factors that USCIS uses to determine, in its discretion, whether it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification. The three factors (or “prongs”) USCIS considers for a national interest waiver are whether:
- The person’s proposed endeavor has both substantial merit and national importance;
- The person is well positioned to advance the proposed endeavor; and
- It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.
Significantly, the new policy specifies that many proposed endeavors aiming to “advance STEM technologies and research, whether in academic or industry settings,” may be considered as having national importance. It also recognizes the importance of “critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security” and highlights “research and development-intensive industries.”
The new policy further states that USCIS considers an advanced degree in a STEM field tied to the proposed endeavor “an especially positive factor” in its determination. USCIS has added guidance to weigh an applicant’s engagement in a critical STEM field (advanced STEM degree, working in a STEM area important to U.S. competitiveness, and well positioned to advance the endeavor) as “strongly positive.”
The new policy also states that letters of support from interested government agencies or quasi-governmental entities (e.g., federally funded research and development centers) submitted as evidence can be particularly helpful to support an NIW petition.
For more information, please see https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-national-interest-waivers.
Vaccination Requirements at Canada/Mexico Land Borders
Beginning on January 22, 2022, the U.S. Department of Homeland Security now requires non-U.S. individuals seeking to enter the United States from Canada or Mexico by land or ferry to provide proof of full vaccination against COVID-19. These new restrictions apply to non-U.S. individuals who are traveling for both essential and non-essential reasons. They do not apply to U.S. citizens, Lawful Permanent Residents, or U.S. nationals. Children under 18, individuals with medical contraindication, and others falling under limited exceptions are exempt from this requirement. This new policy is in effect until April 21, 2022, unless further extended.
Please see here for additional details:
U.S. Consulates May Now Waive H-1, H-3, H-4, L, O, P, and Q Visa Interviews
The State Department has announced that through December 2022, U.S. Consulates may now waive the in-person interview requirement for the above-named temporary employment nonimmigrant visa applicants.
The conditions for a waiver to be granted include the following:
- The Applicant must have been previously issued a visa of any type, and never refused a visa, unless the refusal was overcome or waived.
- The Applicant must apply in his/her country of nationality or residence.
- The Applicant must have no apparent ineligibility or potential ineligibility.
The interview may also be waived for a first-time visa applicant who is a citizen or national of a Visa Waiver Program (VWP) country who has previously obtained an ESTA Authorization (Electronic System for Travel Authorization) to travel to the U.S. as a visitor for business or pleasure AND has previously traveled to the U.S. under the VWP using ESTA.
The State Department has also extended, through the end of 2022, the authority previously granted to U.S. Consulates to waive the interview requirement for F, M and J visa applicants who are citizens or nationals of a Visa Waiver Program (VWP) country who have previously obtained an ESTA Authorization (Electronic System for Travel Authorization) to travel to the U.S. as a visitor for business or pleasure. One change to the previous policy is that applicants eligible for the waiver authority because they are citizens or nationals of a VWP participating country must have previously traveled to the United States using an authorization obtained via ESTA to qualify.
The availability of interview waivers pursuant to this guidance will vary from consular post to consular post depending on workload and other considerations. Please note that U.S. Consulates are not required to implement this policy but can do so at their discretion. Applicants are strongly advised to check with the consular post in their home country for current practices.
USCIS Updates Employment Eligibility Rules for H-4, E, and L Spouses
On November 12, 2021 USCIS issued a comprehensive Policy Memorandum which provides immediate relief for the H-4, E, and L Dependent Spouses who seek to engage in employment in the U.S.
Certain H-4 spouses* who have been granted employment authorization and are seeking to extend their permission to work, are now eligible for an automatic extension of their work permission. Provided they have filed a timely application for extension of their Employment Authorization Documents (EAD), their permission to work is now automatically extended for up to 180 days, until their extension application is adjudicated (granted or denied), or until the expiration of their Form I-94 Arrival-Departure Record-whichever comes first.
The documents required to demonstrate to employers that they are work authorized are: their unexpired Form I-94 Arrival-Departure Record, the Form I-797 receipt confirming a timely filed I-765 extension application, and the expired EAD.
E and L Dependent spouses are now considered authorized to work “incident to status” and are no longer required to apply for or present an Employment Authorization Document. Since this benefit does not extend to dependent children of the E or L principal, USCIS will work with CBP in the coming months to modify the Form I-94 to distinguish between dependent spouses and dependent children. This will then serve as a “List C” document for I-9 purposes. Until then, an EAD will be required. E and L Dependent spouses may now apply for an EAD but will incur the filing fee of $410-and expect to wait months before it is issued.
*not all H-4 spouses are eligible for employment authorization
Department of State Announces DV 2023 Visa Lottery
The Department of State has announced the procedures for the upcoming Visa Lottery. Detailed information is available on the Department of State website at:
The registration period opens Wednesday, October 6, 2021 at 12:00 noon, EDT. Entries must be submitted online by 12:00 noon, EST on Tuesday, November 9, 2021.
The Visa Lottery enables 55,000 individuals from countries with historically low rates of immigration an opportunity to obtain a green card provided they meet certain minimal qualifications. In addition, they must not be “excludable” from the U.S. as a result of such factors as criminal record, immigration violations, etc. For fiscal year 2023, 55,000 DVs will be available.
Applicants are chosen by a computer-generated random drawing after submitting a simple application and photograph via an online system established by the State Department. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. No single country may receive more than seven percent of the available Diversity Visas in any one year.
For DV-2023, natives of the following countries are NOT eligible to apply because the countries sent more than 50,000 immigrants to the United States in the previous five years:
Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Macau SAR and Taiwan are eligible.
This year, Guatemala has been added to the list of countries that are eligible to participate in the lottery.
A “native” is a person born in a country, or entitled to be “charged to” the country under the rules of “alternate chargeability.” Under the rules of alternate chargeability, an alien applicant born in an ineligible country may “use”
- the country of birth of his or her spouse, if the alien applicant is married to a native of an eligible country-provided the spouse is eligible for a visa and will immigrate to the U.S. with the applicant; or
- the country of birth of either parent, if the alien applicant was born in a country in which neither of his or her parents had established a residence at the time of the applicant’s birth.
The spouse or children (a “child” is an unmarried person under 21 years of age) of a successful applicant will also be eligible for immigrant status, regardless of their place of birth.
If selected, applicants will be instructed to apply for an immigrant visa at the U.S. Consulate in their country of residence. However, applicants who are in the U.S. will, in many cases, be eligible to adjust their status through a local Immigration office.
A successful applicant must prove that he or she has at least a high school education or its equivalent, or two years of work experience during the past five years in a job which, according to the Department of Labor’s O*Net Online database, requires at least two years of training or experience. An applicant must also establish that she/he meets the usual qualitative requirements for entry to the U.S. For example, an applicant with a criminal record may be barred.
Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV Entry or DS-5501). Paper entries will not be accepted. We strongly encourage applicants not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon, EST, on November 9, 2021.
We believe that anyone with access to the Internet can complete the entry process without hiring an attorney or paying a fee to a third party, though it may be worthwhile for some individuals who are not computer savvy to pay a small fee to have someone assist them with the process. PAYMENT OF A FEE TO A THIRD PARTY WILL NOT INCREASE YOUR CHANCE OF BEING SELECTED.
However, we strongly recommend that anyone selected in the lottery consult with an experienced immigration attorney to determine the best course of action and to identify any issues which may derail their application for a green card.
Please feel free to contact our office if you have any questions.
Ban on Nonimmigrant Visa Issuance Has Not Been Extended
Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants, expired on March 31, 2021 and has not been extended.
Visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing phased resumption of visa services guidance. Visa applicants who were previously refused visas due to the restrictions of Presidential Proclamation 10052 may reapply by submitting a new application including a new fee.
The resumption of routine visa services, prioritized after services to U.S. citizens, is occurring on a post-by-post basis. U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March 2020 and will continue to do so as they are able. Applicants should check the website of their nearest U.S. Embassy or Consulate for updates on the services that post is currently offering.
Temporary Protected Status (TPS) for Venezuela
The Secretary of Homeland Security, Alejandro N. Mayorkas, has designated Venezuela for Temporary Protected Status (TPS) for a period of 18 months, until September 2022. The designation was based on Venezuela’s unsafe conditions including, a complex humanitarian crisis marked by widespread hunger and malnutrition, increasing influence and involvement of non-state armed groups, repression, and collapsing infrastructure. The TPS will allow Venezuelan nationals (and non-nationals who last resided in Venezuela) to apply for TPS in the United States.
Under Venezuela’s designation, only those who can show continuous residency in the United States as of March 8, 2021 are eligible for TPS. Individuals who wish to apply for TPS must do so during the 180-day registration period with US Citizenship and Immigration Services. They may also apply for EADs (Employment Authorization Documents) and travel permits. As part of deciding eligibility for TPS, all applicants are subjected to security and background checks.
Please contact our office if you have any questions.
President Biden Rescinds Immigrant Visa Ban
Yesterday, President Biden rescinded Proclamation 10014. Proclamation 10014 suspended the entry of certain immigrants until March 31, 2021. This immigrant visa ban affected employment-based, family-based and Diversity Lottery immigrant visa (green card) applications, with limited exceptions. Effective immediately, consulates are permitted to resume processing affected immigrant visa applications.
The nonimmigrant ban affecting certain H-1B, H-2B, L-1 and J-1 visa categories remains in effect. It is currently set to expire on March 31, 2021.
Additionally, COVID-19 related travel bans remain in effect for certain individuals who were physically present in any Schengen country, UK, Ireland, China, Brazil or South Africa within the 14 days prior to their attempt at entering the U.S. As such, even if foreign nationals are no longer subject to the immigrant visa ban, they may need to apply for national interest exceptions to be able to enter the U.S.