FY 2023 H-1B Cap Has Been Reached According to USCIS

U.S. Citizenship and Immigration Services (USCIS) announced on August 23, 2022, 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.

USCIS said it has completed sending non-selection notifications to registrants' online accounts. The status of such registrations will show as "Not Selected." USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap numbers, are exempt from the FY 2023 H-1B cap. USCIS said it will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in additional H-1B positions.

SOURCE: ABIL Immigration Insider, August 28, 2022, and USCIS alert, Aug. 23, 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-fiscal-year-2023-h-1b-cap


E-Verify Experiencing System Outages During Case Initiation

E-Verify reported that it is experiencing intermittent system outages. As a result, "users may experience system timeouts and increased processing times when creating and submitting cases," E-Verify said, adding that it is working to resolve the issue.

Employers must continue to complete and retain a Form I-9 for every person hired to work for pay in the United States within the required timeframes, E-Verify noted.

SOURCE: ABIL Immigration Insider, August 28, 2022 and https://www.e-verify.gov/about-e-verify/whats-new


DOL: FLAG Experiencing System Issues

The Department of Labor (DOL) announced on August 24, 2022, that the Foreign Labor Application Gateway (FLAG) system "continues to experience intermittent issues when creating certain application forms, appendices, or other decision documents through Adobe PDF." DOL recommended that users "carefully review the Adobe PDF decision documents generated by the FLAG system for accuracy and completeness." DOL said users should contact the FLAG Technical Help Desk Team if any decision document appears incomplete or otherwise contains inaccuracies.

SOURCES: ABIL Immigration Insider, August 28, 2022 and https://flag.dol.gov/


DHS Proposes to Allow for Alternatives to Physical Document Examination for I-9 Verification

On August 18, 2022, the Department of Homeland Security (DHS) proposed a rule to allow for alternative document verification procedures for Form I-9, Employment Eligibility Verification. The proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures for some or all employers.

According to the notice of proposed rulemaking (NPRM), such procedures could be implemented as part of a pilot program; upon the Secretary's determination that such procedures offer an equivalent level of security; or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services under the Public Health Service Act, or a national emergency declared by the President under the National Emergencies Act.

The NPRM notes that in light of advances in technology and remote work arrangements, the Department of Homeland Security (DHS) is exploring alternative options, including making permanent some of the COVID-19 pandemic-related flexibilities to examine employees' identity and employment authorization documents for the Form I–9. The rule would not create such alternatives but would instead formalize the authority for the DHS Secretary "to extend flexibilities, provide alternative options, or conduct a pilot program to further evaluate an alternative procedure option (in addition to the procedures set forth in regulations) for some or all employers, regardless of whether their employees physically report to work at a company location." DHS said it would introduce any such alternative procedure in a future Federal Register notice.

SOURCE: ABIL Immigration Insider, August 21, 2022, and 87 Fed. Reg. 50786 (Aug. 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-08-18/pdf/2022-17737.pdf


Visa Delays and Unprecedented Wait Times Create Frustration for Workers, Employers

According to reports, visa delays, backlogs, and unprecedented wait times at U.S. embassies and consulates are causing disruptions for workers and companies, particularly those employing workers in temporary statuses who need to renew their visas outside the United States.

For example, excluding student and visitor visas, wait times for visas in Istanbul, Turkey, exceed 16 months; in New Delhi, India, wait times hover at nine months for the thousands of highly skilled temporary workers coming to the United States on H-1B and L-1 visas. Business visa processing in Chile can take up to three years.

The delays are thought to be at least partly the result of increased travel demand related to the COVID-19 pandemic, staffing issues at embassies and consulates, and a two-year shutdown of processing guestworker visas by the Trump administration. Some business groups and immigration attorneys advocate measures such as allowing remote interviews or permitting those with expiring visas to renew in the United States rather than requiring them to leave the country as a way of relieving backlogs. Reportedly, the Department of State (DOS) is considering such options. Meanwhile, DOS said it has doubled hiring of consular staff in fiscal year (FY) 2022 over FY 2021 and noted that "[n]early all U.S. embassies and consulates have resumed full visa services."

SOURCE: ABIL Immigration Insider, August 21, 2022, and "Visa Bottlenecks Are Creating Headaches for Employers, Workers," Aug. 16, 2022, https://news.bloomberglaw.com/daily-labor-report/visa-bottlenecks-are-creating-headaches-for-employers-workers


USCIS Clarifies Eligibility Determinations for L-1 Nonimmigrant Managers, Executives, and Specialized Knowledge Workers

On August 16, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a policy alert to clarify how the agency determines eligibility for L-1 nonimmigrants seeking classification as managers or executives (L-1A) and specialized knowledge workers (L-1B).

The update does not make changes to existing policy or create new policy. The update consolidates and updates guidance previously included in the Adjudicator's Field Manual, Chapter 32, as well as related appendices and policy memoranda.

SOURCE: ABIL Immigration Insider, August 21, 2022, and https://bit.ly/3pB8Wy9 and https://www.uscis.gov/policy-manual/volume-2-part-l


September 2022 Visa Bulletin Indicates Increasing Demand for Employment Based Visas

The Department of State's (DOS) Visa Bulletin for September notes a steady increase in both U.S. Citizenship and Immigration Services and Department of State demand patterns for employment-based visas during the fiscal year. As a result, the Department expects that most employment-based preference category limits and/or the overall employment-based preference limit for FY 2022 to be reached during September. If the annual limit were reached, "it would be necessary to immediately make the preference category 'unavailable,' and no further requests for numbers would be honored," the bulletin states.

For adjustment of status filing dates for September 2022, the Final Action Dates chart in the Visa Bulletin must be used for employment-based preference categories.

The bulletin also notes that the worldwide employment-based preference numerical limit for FY 2022 is 281,507.

SOURCE: ABIL Immigration Insider, August 14, 2022 and https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-september-2022.html


Semi-Annual Regulatory Agendas Published by DHS and DOL

On August 8, 2022, the Departments of Homeland Security (DHS) and Labor (DOL) published their semiannual regulatory agendas, which summarize projected and existing regulations. The agendas give an overview of what the agencies are considering during the upcoming one-year period. Below are selected highlights:

Among other things, DHS plans to propose adjusting the fees charged by U.S. Citizenship and Immigration Services (USCIS) for immigration and naturalization benefit requests. On August 3, 2020, DHS adjusted the fees, imposed new fees, revised certain fee waiver and exemption policies, and changed certain application requirements via a rule. DHS was preliminarily enjoined by court order from implementing that rule. This rule would rescind and replace the changes made by the August 3, 2020, rule and establish new USCIS fees.

Also, DOL's Employment and Training Administration and Wage and Hour Division, and DHS/USCIS, plan to jointly propose to amend H-2B nonimmigrant visa program regulations. The proposed rule would establish standards and procedures for employees seeking to hire foreign temporary nonagricultural workers for certain itinerant job opportunities, including entertainers and carnivals and utility regulation management.

SOURCE: ABIL Immigration Insider, August 14, 2022 and https://www.govinfo.gov/content/pkg/FR-2022-08-08/pdf/2022-14607.pdf


New Information Sources on STEM Released

Several entities have released new resources on research and options for noncitizens in the fields of science, technology, engineering, and mathematics (STEM) in the United States:

U.S. Citizenship and Immigration Services has published resources to provide an overview of some of the temporary and permanent pathways for noncitizens to work in the United States in STEM fields. The materials also highlight some of the most important considerations for STEM professionals who want to work in the United States. New pages include "Options for Noncitizen STEM Professionals to Work in the United States," "Nonimmigrant Pathways for STEM Employment in the United States," and "Immigrant Pathways for STEM Employment in the United States." https://www.uscis.gov/newsroom/alerts/new-stem-resources-available-on-uscis-website

The American Immigration Council rolled out a new website with guides and frequently asked questions on the five international STEM talent policies announced in January 2022 by the Biden administration to enhance the ability of the United States to attract and retain international STEM talent. The website features five guides and FAQs (https://info.americanimmigrationcouncil.org/stem-faqs/faqs.html) and new research and links to other work (https://www.americanimmigrationcouncil.org/research/foreign-born-stem-workers-united-states)

In a new policy brief, the National Foundation for American Policy has documented the role played by immigrants as founders and key personnel in many of the United States' most innovative companies. The research shows the importance of immigrants in cutting-edge companies and the U.S. economy at a time when U.S. immigration policies have pushed talent to other countries. https://nfap.com/research/new-nfap-policy-brief-immigrant-entrepreneurs-and-u-s-billion-dollar-companies/

SOURCE: ABIL Immigration Insider, July 31, 2022

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