IMMIGRATION LAW UPDATE

January 2023

H-1B Cap Season for the 2024 Fiscal Year
While we battle through the winter weather and dream of spring around the corner, it’s time to start thinking about what else March and April are going to bring. USCIS has just announced that employer and applicant H-1B registration will open March 1st and close March 17th. USCIS will then conduct the lottery for those who registered and announce the winners on or around April 1, 2023.

Federal statutes allow for the issuance of 65,000 H-1B visas each fiscal year, with an additional 20,000 available to beneficiaries who hold a U.S. Master’s degree. Last year, USCIS received over 480,000 applications for these 85,000 spots, which marks the highest number of submitted applications to date. Employers should identify prospective foreign talent now, and plan to start the H-1B preparation process no later than the beginning of March. Advanced planning will give employers and our office sufficient time to conduct analysis and timely submit registrations.

It is not too early to schedule a registration appointment with Brad Ortman, Karen Moss, or Anne Grove.

Expansion of Premium Processing for EB-1 and EB-2 Petitions

Beginning January 30th, all new and pending EB-1 and EB-2 petitions filed with form I-140 will be eligible for premium processing. This is the final phase of premium processing expansion for form I-140. USCIS will announce dates in February for additional forms that will be opened to premium processing requests. These are expected to include: F-1 Students seeking Optional Practical Training and F-1 Students seeking STEM OPT extensions, both using form I-765. Form I-539 is expected to begin accepting premium processing requests later this year.

USCIS agrees to Bundle L-2, H-4/H-4 EAD Applications when Filed Concurrently with Primary L-1 and H-1B Petitions

The case Deepthi Warrier Edakunni, et al., v Alejandro Mayorkas, Secretary of the Department of Homeland Security was settled on January 23, 2023. The parties have agreed that all derivative applications (L-2s, H-4s and H-4 EADs) related to H-1B and L-1 petitions will be bundled as long as they are properly filed together. This means that the primary petitions and derivative applications will be reviewed and adjudicated at the same time to combat the long wait times derivative applications have been facing.

Automatic Extension of Permanent Residence Cards for Naturalization Applicants

Beginning on December 12, 2022, the receipt notices for the forms N-400 automatically provide a 24-month extension to Permanent Residence Cards. Previously, applicants waiting for action regarding their N-400 applications still needed to file form I-90 six months before their lawful permanent residence document expired. Now, instead of filing two separate forms, forms N-400 will automatically extend lawful permanent residence status by two years.

Public Charge Final Rule Updated

Beginning December 23, 2022, the Public Charge final rule was updated and, as a result, all Lawful Permanent Resident applications must use updated forms to reflect this change. The interpretation of the Public Charge final rule has been amended to more closely reflect its previous incarnation introduced in 1999 and used until 2019.

The language “[l]ikely at any time to become a public charge” is now being interpreted to mean that the government is likely to become the primary source of subsistence for the individual. Under this interpretation, government assistance that does not primarily support the individual (i.e. SNAP and other nutrition programs and Medicaid) are not factors in determining an individual’s likelihood of becoming a public charge.

Medicaid would only be considered a factor in relation to long-term institutionalization at government expense. Outside of long-term institutionalization, only cash benefit programs from state, local, federal, Tribal or similar governmental authorities, such as TANF and SSI, are considered under the new public charge rule. USCIS will only consider the applicant’s history when determining the likelihood of public charge. Other family members are not part of the decision.

USCIS Extends COVID-19 RFE Flexibility until March 23, 2023

USCIS will continue to accept the following responses and motions received within 60 calendar days after the due date set forth in the following requests or notices:

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 33.5, 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
That decision was made between Nov. 1, 2021, and March 23, 2023, inclusive.

This policy was put into place at the start of the COVID-19 pandemic and this is expected to be its final extension.

Fee-Exempt EADs for Certain Ukrainian and Afghan Refugees

Effective December 12, 2022, Afghan and Ukrainian refugees falling into the following three categories will not have to pay to apply for Employment Authorization Documents (EADs):

Afghan parolees whose unexpired Form I-94, Arrival/Departure Record, contains a class admission of “OAR,”
Ukrainian parolees whose unexpired Form I-94 contains a class admission of UHP, and
Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “DT” issued between 2/24/22 and 9/30/23, and indicates Ukraine as the country of citizenship on the document.

This change comes in response to a class action lawsuit filed against USCIS in the U.S. District Court for the Northern District of Illinois.

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If you have questions or would like to learn more about these or other immigration topics, please contact Karen Moss, Brad Ortman, or Anne Grove of the Immigration Law Group at Nicola, Gudbranson & Cooper via email or at (216) 621-7227.

Bradley L. Ortman and Karen Gabriel Moss
Nicola, Gudbranson & Cooper LLC

This Immigration Law Update contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.