Author: Caroline Lee

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A Look Back on the H-1B Lottery: What the Numbers Reveal

If you or your employee did not get selected in the initial draw from this year’s H-1B lottery, unfortunately, you’re not alone. Since USCIS changed the H-1B process in 2020 to a bifurcated system that permits registration and lottery prior to filing a substantive H-1B petition, the number of applicants has gone up dramatically. Prior to 2020, an employer would need to file a full H-1B petition by the April deadline, and hope to receive a cap number. Now, for a very low registration fee, employers first enter their employees in the lottery, and if selected, the employer may then file a full H-1B petition for the beneficiary.

While the new registration system has many advantages, including not requiring employers to invest the full expense of an H-1B petition without knowing if their employee will be selected in the lottery, it has also had the effect of drastically increasing the pool of applicants, simultaneously decreasing the likelihood of selection for each person. This year’s lottery was especially bleak: during the registration period for the FY 2024 H-1B cap, USCIS saw a significant increase in the number of registrations submitted compared to prior years. There was an increase in the number of registrations submitted, the number of registrations submitted on behalf of beneficiaries with multiple registrations, and the number of registrations submitted on behalf of unique beneficiaries with only one registration. An astonishing 780,884 registrations were received in the lottery period, but ultimately, only 85,000 H-1B visas may be allotted each year. As a result, these numbers spelled disappointment for the vast majority of registrants.

This year’s lottery, more than ever, underscores the need for H-1B reform legislation that ensures that the supply of H-1B visas is responsive to the needs of U.S. employers and the economy.  If you did not receive an H-1B selection and would like to discuss your other visa options, reach out to the attorneys at CYA today.

by Caroline Lee Caroline Lee No Comments

New Policy Guidance on Selecting Gender on USCIS Forms

U.S. Citizenship and Immigration Services (USCIS) has clarified that effective March 31, 2023, immigration benefit requestors may select their gender on USCIS forms (or change a prior gender selection) without needing to provide supporting documentation for the selected gender. Documents issued by USCIS as a result of the benefit adjudication will reflect the benefit requestor’s gender selection.

In issuing this updated guidance, USCIS notes that “[r]emoving evidentiary requirements regarding gender markers better ensures that all secure identity documents and biographic data are accurate . . . it also removes the burden imposed by requiring that requestors have to publicly discuss or provide documentation regarding the gender listed on their identity documents in order to obtain a benefit or service.”

Currently, the only gender markers available are “Male” (M) or “Female” (F). The Department of Homeland Security is working on options to include an additional gender marker (“X”) for another or unspecified gender identity. USCIS will update its forms and the Policy Manual accordingly.

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CDC No Longer Requiring Negative COVID Tests for Air Passengers from China, Hong Kong, and Macau

The Centers for Disease Control and Prevention (CDC) announced on March 10 that it had terminated the order requiring a negative pre-departure COVID-19 test for aircraft passengers traveling to the United States from the People’s Republic of China (PRC), as well as from the Special Administrative Regions of Hong Kong and Macau. The new announcement from the CDC also terminates the requirement that passengers transiting Incheon International Airport (South Korea), Toronto Pearson International Airport (Canada), and Vancouver International Airport (Canada) on their way to the United States provide a negative COVID-19 test if they have been in the PRC, Hong Kong or Macau in the last 10 days.

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Expansion of Premium Processing Service Continues

The expansion of U.S. Citizenship & Immigration Services’ (USCIS) premium processing program has moved into a new phase!  At long last, premium processing will now include all multinational manager and executive I-140 petitions as well as National Interest Waiver (NIW) I-140 petitions.  Beginning January 30, 2023, USCIS will accept Form I-907 premium processing requests for all new and pending I-140 petitions for multinational executive and manager petitions and NIW petitions. These premium-processed I-140 petitions are to be adjudicated within 45 days.  In March 2023, USCIS plans to further expand premium processing to pending Form I-765s filed by F-1 students for Optional Technical Training (OPT) and STEM OPT.  This will be further expanded in April 2023 to initial OPT and STEM OPT applications. Exact details are expected to be announced in February 2023.

Premium processing allows petitions to be adjudicated much faster than the stated USCIS processing times, for an additional USCIS filing fee.  More and more employers and beneficiaries are electing to use premium process as USCIS processing delays have continued to increase in the post-Covid world.  Have questions about whether your petition is eligible for premium processing?  Reach out to the attorneys at CYA today!

by Caroline Lee Caroline Lee No Comments

New Version of Form I-485 to Take Effect, Incorporating Final Public Charge Rule

Beginning on December 23, 2022, applicants filing for adjustment of status to permanent resident in the United States must use the 12/23/22 version for Form I-485. Per U.S. Citizenship and Immigration Services, the new version of the I-485 is revised to incorporate questions that address and implement the Department of Homeland Security’s final rule on the public charge ground of inadmissibility. Public charge inquiries are intended to determine whether an applicant for permanent residence is likely to become a public charge, or reliant on the United States government for financial assistance. The DHS final rule was published on September 9, 2022, and was intended to provide clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility.

The public charge ground of inadmissibility has waxed and waned over the years in terms of its importance to the overall adjudication of permanent residence applications, but a public charge inquiry for applicants remains a central component of permanent residence applications. If you have questions about the effect of the new DHS rule on public charge on your permanent residence process, please reach out to our office to schedule a consultation today!

by Caroline Lee Caroline Lee No Comments

The Uncertain State of DACA

If you find yourself confused about what’s happening with the DACA (Deferred Action for Childhood Arrivals) program, you’re not alone. The program has been the subject of judicial whiplash for years, amid threats of its termination, and its future remains uncertain.

The DACA program, which provides protection against removal and deportation for people who arrived in the U.S. as children and who currently lack legal status, was created by executive policy under the Obama Administration. The Trump Administration rescinded the DACA memo after concluding that implementation of the program was inconsistent with the Constitution’s separation of powers. The Supreme Court then heard challenges to the rescission of the DACA program and found that the Trump administration had not properly rescinded the program. DACA survived termination for the time being.

Under the Biden administration, the Department of Homeland Security (DHS) has begun the formal rulemaking process to codify DACA under federal regulation, making it less susceptible to legal challenges. At the same time, the program remains involved in litigation to determine whether its implementation is consistent with immigration law. Currently, the program is before U.S. District Judge Andrew Hanen of Texas, to whom the Fifth Circuit Court of Appeals remanded the decision to consider the impact of the Biden Administrations DACA regulations on the program’s legality.

While the program is entrenched in litigation, DHS’s U.S. Citizenship and Immigration Services will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to an injunction from the ongoing litigation, however, USCIS will accept but cannot process initial DACA requests. DACA recipients remain eligible for Advanced Parole travel authorization in limited circumstances.

Do you have questions about the DACA program? Reach out to schedule a consultation with one of our attorneys today!

by Caroline Lee Caroline Lee No Comments

Expansion of Premium Processing Continues

Immigration processing times are not known for being quick – the opposite is sadly true as processing times for many case types have ticked up substantially over the past few years.  However, good news is at hand for at least a few more categories of employment-based permanent residence, as USCIS continues its phased approach to expanding the cases that are eligible for premium processing.  Premium processing allows for the payment of an extra fee to the agency; in return USCIS will adjudicate the petition within a greatly reduced time frame, the length of which depends on the case type.  However, the types of cases that are eligible for premium processing have been narrowly defined in the past.  With this third phase of premium process expansion, USCIS is permitting certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications, to interfile premium processing on the pending cases.

As of September 15, USCIS will accept premium processing requests for:

  • Multinational executive and manager petitions received on or before January 1, 2022 (EB-1); and
  • National Interest Waiver petitions received on or before February 1, 2022 (EB-2).

USCIS has stated that it will reject premium processing requests for these Form I-140 classifications if the receipt date is after the above-mentioned dates.

Is your case eligible for premium processing?  If you have questions, reach out to the attorneys at Curray York & Associates for a consultation.

by Caroline Lee Caroline Lee No Comments

The H-1B Cap Has Been Reached for FY2023

That’s a wrap on this year’s H-1B season! On August 23, US Citizenship & Immigration Services announced that the agency had received a sufficient number of applications to meet the congressionally mandated allotment of H-1B visas for FY2023. The H-1B program for specialty occupations is highly sought after by visa applicants, with a large number of registrations each year. Annually, there is a limit of 65,000 H-1B visas which may be granted under the regular cap and 20,000 H-1B visas which may be allocated under the U.S. advanced degree exemption. With this announcement USCIS also notified potential applicants of their non-selection from the lottery. It is not anticipated that any further lottery selections will be made in this fiscal year.

Didn’t receive a cap number in this year’s lottery? Be sure to reach out to our firm in January 2023 to enter the lottery for next year!

by Caroline Lee Caroline Lee No Comments

USCIS Issuing New I-797 Approval Notices for L-2 and E-2 Spouses

Pursuant to a recent USCIS policy change whereby the Service is now acknowledging that L-2, E-1, E-2, and E-3 spouses have employment authorization incident to their immigration status, U.S. Customs and Border Protection (“CBP”) has confirmed that it is updating all L-2 I-94s for L-2 spouses, 22 years of age or older, to add “S” to the status for those who entered prior to 1/31/22. Those entering on January 31, 2022 or later have had the “S” added upon entry to the U.S. CBP did not add the “S” to L-2 I-94 cards for foreign nationals ages 18-21 at time of entry, due to uncertainty about whether they were dependent spouses or children. For this group of L-2 dependents, the “S” will need to be added to applicable I-94s on next entry to the U.S., by presenting evidence of spousal relationship, or through the next filing with USCIS. CBP has been unable to make this adjustment for E-2 spouses given the difficulty in distinguishing between an E-2 principal and an E-2 dependent spouse. To seek the “S,” E-2 spouses will need to follow the same instructions as for the L-2 dependents ages 18-21.

USCIS is now issuing I-797 approval notices for L-2 and E-2 spouses that specifically state the notice may be used to document work authorization and for completion of Form I-9.

by Caroline Lee Caroline Lee No Comments

H-1B Cap Lottery Closing on March 18, 2022

Only one day remaining! The initial registration period (known as the lottery) for the FY2023 H-1B cap season is open, but not for long. The registration period will close at 12:00 noon (Eastern) on Friday, March 18, 2022. Once the registration has closed, USCIS will randomly select registrations from those submitted in the lottery. Registrations will be selected no later than March 31, 2022. The employer and attorney will then have at least 90 days, beginning on April 1, to file a fully prepared H-1B cap-subject petitions for the employee. Registrations not selected in the initial lottery will be put on a waitlist and more registrations may be randomly selected during the fiscal year.

Once the lottery has closed, a registrant’s USCIS online account will show one of the following statuses for each registration:
• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
• Selected: Selected to file an H-1B cap petition.
• Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, disputed, or otherwise invalid.

What to do if you win the lottery with a “selected” registration? For questions or assistance in filing your H-1B petition, schedule a consultation with one of the CYA attorneys today!