As reported in the September 2023 issue of our Business Immigration Monthly, the U.S. Citizenship and Immigration Services (USCIS) has issued a Notice of Proposed Rulemaking to modify the H-1B program.
Some highlights from the proposed rule are as follows:
The proposed rule also has implications for all visa classification when an extension or amendment is requested. First, the USCIS proposes to codify and clarify its deference policy – whereby if there has been no change in the job duties, locations of employment or other material changes, then the USCIS should not be second-guessing a previously approved petition, absent fraud. Additionally, the USCIS explains the documentation needed to evidence that the beneficiary is maintaining nonimmigrant status in order to be eligible for a change of status, amendment or extension would be applicable to all nonimmigrant classification – not solely the H-1B classification.
Finally, the proposed rule seeks to modernize the definition of “U.S. employer” for U.S. immigration purposes to be a person, firm, corporation, contractor or other association having an IRS Tax identification number (FEIN), having a legal presence (legally formed and authorized to conduct business) in the United States and is amenable to service of process to be sued in the United States who offers a bona fide job offer for a beneficiary to work in the United States.
Written comments are due on or before December 22, 2023. After the comment period closes, the USCIS will consider the comments prior to sending a final regulation to Office of Management and Budget (OMB) for another review. After OMB approves the final regulation, it may then be implemented by the USCIS (unless a court enjoins the implementation). Therefore, although the exact timing of the implementation of the new H-1B regulation is unknown, there has been indication that the USCIS would like the final regulation, or at least a portion thereof, implemented prior to the next H-1B quota registration process (which should occur in early March 2024).
Additional information about the implementation of the changes to the H-1B program will be contained in future Business Immigration Monthly updates when they become available.
The USCIS has announced that it will issue eligible Employment Authorization Documents (“EAD”) for five-year periods. However, it is within the discretion of the USCIS to issue them for a shorter period of time without having to provide an explanation as to why only the shorter period was issued.
Eligible applicants include:
The U.S. Supreme Court declined to grant a writ of certiorari thus ending the STEM OPT litigation which has been ongoing since 2014. Washington Alliance of Technology Workers, an IT union, opposed the expansion Optional Practical Training (OPT) to foreign students who completed designated STEM (science, technology, engineering, mathematics) programs at U.S. universities. Universities may continue to authorize STEM OPT to foreign students for up to 24 months if the student will be employed by an employer who is enrolled in E-Verify and the student has graduated with a designated STEM major. This work authorization is in addition to the 12 months of OPT work authorization a foreign student is eligible for upon graduation at each higher level of education.
The U.S. Department of State (DOS) recently issued the November 2023 Visa Bulletin with few changes from the October 2023 Visa Bulletin.
On a positive note, the USCIS has agreed to continue to allow individuals eligible in the family-based and employment-based categories to apply for permanent resident status in the United States (adjustment of status (AOS)) under the “Dates of Filing Chart” (instead of the Final Action Date chart).
To be approved for the actual Green Card/Permanent Resident status, an immigrant visa must be available when the USCIS approves the AOS application or when the Consular post issues the Immigrant Visa. This is based upon the Final Action Date (not Dates for Filing) chart.
The only advancement in the November 2023 Visa Bulletin benefits persons born in any country other than India or China or the Philippines (World category) who have been approved for the employment-based 2nd preference category - they may be eligible to be approved for the actual Green Card/Permanent Resident status if their Final Action priority date is before July 8, 2022.
Certain Religious Workers (SR), the employment-based 4th preference category, must receive their immigrant visa and use that visa to enter the United States or have their application to adjust status approved before midnight on November 16, 2023. The Religious Worker program expires on November 17th pursuant to H.R. 5860, signed on September 30, 2023, and Congressional action is needed to extend the program.
The DOS noted in the Visa Bulletin that the next priority date advancement may not occur until January 2024 in order to keep visa issuance within quarterly limits in accordance with the provisions of the Immigration and Nationality Act (INA).
Starting November 1st, employers can only use Form I-9, Employment Eligibility Verification, with the 08/01/2023 edition date, found at the bottom of the page of the form and instructions. After that date, the prior version of Form I-9 will be obsolete and no longer valid for use.
Employers are required to use Form I-9 to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must properly complete Form I-9 for every individual they hire for employment, including citizens and noncitizens.
Both employees and employers (or authorized representatives of the employer) must complete the form. An employee must attest to their employment authorization and present their employer with acceptable documents as evidence of identity and employment authorization. The employer must examine these documents to determine whether they reasonably appear to be genuine and relate to the employee, then record the document information on the employee’s Form I-9.
After the required date, employers who fail to use the 08/01/23 edition of Form I-9 may be subject to all applicable penalties under section 274A of the INA, 8 U.S.C. 1324a, as enforced by U.S. Immigration and Customs Enforcement (ICE).
The USCIS recently launched an Enterprise Change of Address (E-COA) self-service tool on the USCIS website to allow individuals to update their mailing and physical address with the USCIS. This tool is available to individuals with pending applications, petitions, or requests and to individuals without pending applications. Individuals need to create an USCIS online account (regardless of whether they have previously submitted an application through the USCIS website) in order to update the address. The tool aims to eliminate the need to update the address in multiple places. The USCIS indicates it will automate address changes for almost all form types. The USCIS ultimately plans to eliminate the option to update address changes by mail or through the USCIS Contact Center.
All noncitizens in the United States (including permanent residents and except A and G visa holders and visa waiver visitors) are legally required to report a change of address to the USCIS within 10 days of moving. F and J nonimmigrants should report address changes to their schools or sponsors who will then update the new address in the SEVIS system.
Please note that a change of address made with the U.S. Postal Service (USPS) will not change your address with the USCIS. New addresses should be updated with both the USCIS and USPS.
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