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  • Ashenberg Law Group

February 2022 Newsletter

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1. February 2022 Visa Bulletin: Steady Advancement in EB-2 and No Advancement in EB-3 Employment-based Categories; No Advancement in Family-based Categories

The U.S. Department of State (DOS) released the Visa Bulletin for February 2022, which shows steady advancement in EB-2 and no advancement in EB-3 employment-based categories, and no movement in family-based categories. The cutoff dates for issuance of employment-based immigrant visas are as follows:

  • EB-1: All countries are current.

  • EB-2: China advanced 5 weeks to March 1, 2019; India advanced 25 weeks to January 1, 2013. All other countries are current.

  • EB-3 Professional and Skilled Workers: China remains at March 22, 2018; India remains at January 15, 2012. All other countries are current.

USCIS will accept adjustment of status applications F2A Spouses and Minor Children of Green Card Holders based on the “Final Action Dates” charts, and all other family-based cases and all employment-based cases based on the “Dates for Filing” charts.

The February 2022 Visa Bulletin can be found here.

2. FY 2023 H-1B Cap Initial Registration Period Opens on March 1, 2022

On January 28, 2022, USCIS announced that that the initial registration period for the upcoming FY 2023 H-1B visa cap season is open from March 1, 2022 at noon EST to March 18, 2022 at noon EST.

Petitioners seeking to file H-1B cap-subject petitions will be required to pay a $10 fee for each electronic registration they submit to USCIS for the H-1B cap selection process.

Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

If you are currently a student working on OPT, and are looking to continue working in the U.S. in H-1B status via the FY 2023 H-1B lottery, ALG attorneys urge you to check with your employer soon to see if they can sponsor you on an H-1B visa.

USCIS’ alert can be found here.

3. USCIS Updates Guidance on Expedite Requests

On January 25, 2022, USCIS updated its Policy Manual to reflect new guidance on how it determines whether a case warrants expedited treatment.

Effective immediately, the new guidance: 1) clarified the criteria and circumstances under which USCIS generally considers expedite requests from nonprofit organizations as determined by the Internal Revenue Service; 2) provided additional samples of when USCIS may consider expedite requests made by federal, state, or local agencies; 3) added examples to further illustrate how the expedite criteria relates to emergencies and urgent humanitarian needs; and 4) explained the circumstances that may affect or delay USCIS’ ability to expedite an application or petition.

USCIS’ alert can be found here.

4. White House Announces Actions to Attract Top STEM Talent

On January 21, 2022, the White House released a Fact Sheet that announced several immigration-related policy changes related to foreign nationals possessing Science, Technology, Engineering and Mathematics (STEM) degrees. The new policies include:

Expansion of degree programs eligible for STEM Optional Practical Training (OPT)

DHS added 22 qualifying fields of study to the STEM Designated Degree Program list through a Federal Register Notice.

Foreign nationals who obtain a degree in a qualifying STEM field are eligible for a 24-month extension of their post-completion OPT, which is normally 12 months.

USCIS Policy Update on O-1A Visas

On January 21, 2022, USCIS updated its Policy Manual to reflect new guidance on how it evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, with a focus on petitions filed for individuals in STEM fields, as well as how USCIS determines whether an O-1 beneficiary’s prospective work is within their area of extraordinary ability or achievement.

USCIS officers will focus on whether prospective work involves skillsets, knowledge, or expertise shared with the occupation(s) in which the individual garnered acclaim when evaluating whether an individual of extraordinary ability is coming to work in their “area of extraordinary ability”.

USCIS Policy Update on National Interest Waivers

On January 21, 2022, USCIS updated its Policy Manual to reflect new guidance on how it adjudicates requests for National Interest Waivers regarding job offer and labor certification requirements for certain advanced degree professionals and individuals of exceptional ability. This includes the unique considerations for persons with advanced degrees in STEM fields, and entrepreneurs.

USCIS clarified how the national interest waiver can be used by STEM graduates and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities.

J-1 Academic Training Extensions

DOS‘ Bureau of Educational and Cultural Affairs (ECA) announced that it is extending the cap for STEM J-1 academic programs from 18 months to 36 months for students pursing a STEM-related degree. Institutions seeking an extension for STEM-related academic training must comply with all relevant rules and regulations.

Early STEM Research Initiative

The ECA will create an “Early STEM Research Initiative” to help exchange visitors entering the U.S. to engage in STEM research through host companies. Under the program, companies can partner with STEM sponsoring organizations to identify J-1 exchange visitors to fill positions and participate in educational experiences in 15 different education, research, and professional development categories.

White House’s Fact Sheet can be found here.

5. Rescission of Travel Restrictions on Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe

On December 28, 2021, President Biden issued a Presidential Proclamation (P.P.) that revoked P.P. 10315, which suspended the entry of certain noncitizens who were physically present in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe during the 14-day period prior to their entry or attempted entry into the U.S.

As of January 1, 2022, P.P. 10315 will no longer prevent visa issuance to individuals subject to that Proclamation.

Requirements for foreign travelers to be fully vaccinated remains in effect.

DOS‘s alert can be found here.

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