The post H-1B Cap Lottery Completed; Petitions Must Be Filed by June 30 appeared first on Capitol Immigration Law Group PLLC.
]]>USCIS has been notifying the selected registrants (via the attorney or employer who submitted the registration) — our office has seen a gradually-increasing number of registration alerts over the past few hours. It is anticipated that all notifications be completed by March 31st.
Process for H-1B Cap Petition Submission for Selected Registrations
Registrations which have been marked as “Selected” will be allowed to download an electronic (PDF format) H-1B cap Registration Selection notice which includes detailed information about the petitioner and the selected beneficiary and advises that the employer has up until June 30, 2024 to submit a fully-prepared and documented H-1B petition with USCIS.
The H-1B petition must include a copy of the Registration Selection notice. The notice also indicates the USCIS service center where the petition should be filed while making it clear that only the named employer can file only for the named beneficiary with no substitutions of beneficiaries permitted.
If the petition is not submitted before the deadline noted in the Registration Selection notice, the registration selection will be void and the H-1B number will be allocated to a different beneficiary as part of a subsequent wait list lottery (see below).
We Recommend Preparing and Filing as Fully-Documented as Possible H-1B Cap Petitions As Early As Possible
We recommend selected registrants consider submitting as fully-prepared and documented petition as early as practicable after the filing window opens on April 1st and definitely well before the June 30th deadline in order to avoid any last-minute glitches or issues.
It may be possible to refile a rejected H-1B cap petition within the deadline, but if an H-1B petition is rejected after June 30th, there is no recourse and the H-1B cap registration will be lost.
Major Issues During This Year’s H-1B Cap Filing Season – What to Watch Out For?
We anticipate the major issued during this year’s H-1B cap filing season to be in line with last year where we all observed a historically high rate of RFEs and scrutiny by USCIS.
Specialty Occupation. The #1 issue over the last couple of years has been the specialty occupation issue which essentially focuses on the position and that it is demonstrated that it requires a bachelor’s degree (or higher) in a specific field of study related to the position. See our in-depth article on this topic. Our job during an H-1B petition preparation is to analyze an offered position, identify red flags and suggest ways to address them for the strongest possible petition.
Wage Level I/Entry-Level Position. Entry-level positions, classified under Wage Level I, should be consistent with the SOC job category and with the actual job description. Entry-level positions in some SOC categories (Programmers, for example) are also not considered to meet the specialty occupation standard. An example: avoid classifying “Senior Managers III” as Wage Level I positions. See our in-depth article on this topic.
Third-party Placement/Right to Control. USCIS expects to see documentation of the relationships between the employer and the end client, including middle vendors. As many as possible of the contracts, purchase orders, statements of work and letters should be provided and they would ideally address the full duration of the placement, identify the employee, the position and its requirements, and the H-1B employer’s continued right to control the employee at the third-party worksite. Our office has a number of well-tested and “tuned” templates and we are definitely happy to provide extensive guidance on how to best present and document third-party placement cases in order to get an approval and for the longest-possible H-1B validity term.
In-house Project Documentation. H-1B employees who are placed to work at an in-house project may be expected to provide extensive documentation about the credibility of such project, including technical, business, marketing, etc. materials. Project timelines and evidence of available office space are often required as well. The in-house project scrutiny is significantly higher towards employers who typically place workers at third-party worksite locations.
CPT and Maintenance of F-1 Valid Status. “Day-1” CPTs are not unlawful; however, they have received a lot of bad publicity and USCIS questions if such CPTs are authorized properly. Before requesting change of status from F-1 to H-1B as part of an H-1B cap petition, we recommend carefully analyzing the validity (and possible documentation) of F-1 CPT and to weigh the possibility of requesting an H-1B to be approved with “consular processing” to avoid the issue altogether (although this will require leaving the US, attending H-1B visa stamp appointment at US consulate and then reentering the US on H-1B status). See this article on F-1 CPT as background.
These are not the only H-1B cap issues which have to be addressed but they cover, by far, the most common areas of USCIS scrutiny.
Attorney Assistance with H-1B Cap Preparation and Submission
If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the actual filing), we offer phone consultations.
Waitlisted Registrations MAY Get Second Lottery Registration Chance (Likely in July)
According to USCIS, selected H-1B cap registrations which did not file an H-1B petition before the June 30, 2024 deadline will be then allocated among the wait-listed (non-selected) registrations. As a result, it is possible that an H-1B registration which was not selected in the initial March lottery to be selected and invited to submit an H-1B petition later in the summer, likely around July or August. There was no secondary lottery last year but there was a lottery during the prior years.
Frequently Asked Questions
Can Capitol Immigration Law Group file the H-1B petition even if the cap registration was submitted by someone else?
Yes, absolutely, we can do this even if another attorney filed the cap registration. In addition to the normal H-1B petition documents (we will share checklists and templates), we will need the online H-1B Registration Selection notice.
The third-party client is not willing to provide much or any documentation – what can I do?
We recommend having an honest discussion and explain to the end client the importance of good documentation. Sometimes the other party may not realize the importance or the purpose. We also can document the facts of the placement in a number of other ways – project correspondence, task orders, invoices, sometimes even public records. Direct documents are best but there are alternatives. Additionally, as a result of recent litigation and the change in stance by the Biden administration, third-party documents do not have to be as complete as during prior years. Our office will be happy to provide guidance on this topic.
If the H-1B cap petition is denied before June 30th, can the petition be refiled?
Our office has been trying to find a confirmation to this question but no firm answer yet. USCIS has indicated that if an H-1B petition is rejected then it can be refiled as long as the refiling is done before the filing window (June 30th). They have not indicated that this is the same if the petition is filed, accepted and then denied. Even if this were the case, especially without premium processing, it is unlikely that a denial decision would come before June 30th to allow a second filing.
What are the chances for second (or third) lottery selection?
At this time we do not know the exact number of H-1B cap registrations but from our experience from last year, there were two “second chance” lotteries and the majority of cases which were selected under the second and third lotteries were U.S. master’s degree cap registrants.
Conclusion
Congratulations to all selected H-1B cap registrants — our office is ready to assist with the preparation and throughout the adjudication process — please contact us as soon as possible. Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.
The post H-1B Cap Lottery Completed; Petitions Must Be Filed by June 30 appeared first on Capitol Immigration Law Group PLLC.
]]>The post April 2024 Visa Bulletin – (Finally) Notable Forward Movement in Employment-based Categories appeared first on Capitol Immigration Law Group PLLC.
]]>Which India and China Employment-based Applicants Are Eligible to File I-485 in April?
By using the Final Action Dates for Filing, USCIS will allow the following India and China applicants to file I-485 in the month of April 2024.
India
China
Summary of the April 2024 Visa Bulletin – Employment-Based (EB)
EB Category | Apr 2024 | Mar 2024 | Change |
---|---|---|---|
Employment Application Final Action Dates (determines when an I-485 or IV can be approved) | |||
EB-1 ROW, MX, PH | C | C | No change |
EB-1 India | Mar 1, 2021 | Oct 1, 2020 | Forward by 5 months |
EB-1 China | Sep 1, 2022 | Jul 15, 2022 | Forward by 1.5 months |
EB-2 ROW, MX, PH | Jan 15, 2023 | Nov 22, 2022 | Forward by 2 months |
EB-2 India | Apr 15, 2012 | Mar 1, 2012 | Forward by 1.5 month |
EB-2 China | Feb 1, 2020 | Jan 1, 2020 | Forward by 1 month |
EB-3 ROW | Nov 22, 2022 | Sep 8, 2022 | Forward by 2.5 months |
EB-3 India | Aug 15, 2012 | Jul 1, 2012 | Forward by 1.5 months |
EB-3 China | Sep 1, 2020 | Sep 1, 2020 | No change |
EB-3 Mexico | Nov 22, 2022 | Sep 8, 2022 | Forward by 2.5 months |
EB-3 Philippines | Nov 22, 2022 | Sep 8, 2022 | Forward by 2.5 months |
Dates for Filing Employment Visa Applications (determines when an I-485 can be filed) | |||
USCIS will determine and announce within a week – please check USCIS’s site. | |||
EB-1 ROW, MX, PH | Current | Current | No change |
EB-1 India | Apr 1, 2021 | Jan 1, 2021 | Forward by 3 months |
EB-1 China | Jan 1, 2023 | Jan 1, 2023 | No change |
EB-2 ROW, MX, PH | Feb 15, 2023 | Feb 15, 2023 | No change |
EB-2 India | May 15, 2012 | May 15, 2012 | No change |
EB-2 China | Jun 1, 2020 | Jun 1, 2020 | No change |
EB-3 ROW | Feb 1, 2023 | Feb 1, 2023 | No change |
EB-3 India | Sep 15, 2012 | Aug 1, 2012 | Forward by 1.5 months |
EB-3 China | Jul 1, 2021 | Jul 1, 2021 | No change |
EB-3 Mexico | Feb 1, 2023 | Feb 1, 2023 | No change |
EB-3 Philippines | Jan 1, 2023 | Jan 1, 2023 | No change |
Please note that USCIS will determine and publish, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.
Summary of the April 2024 Visa Bulletin – Family-Based (FB)
FB Category | Apr 2024 | Mar 2024 | Change |
---|---|---|---|
Family Application Final Action Dates (determines when an I-485 or IV can be approved) | |||
FB-1 ROW, China, India | Feb 8, 2015 | Feb 8, 2015 | No change |
FB-1 Mexico | May 1, 2001 | May 1, 2001 | No change |
FB-1 Philippines | Mar 1, 2012 | Mar 1, 2012 | No change |
FB-2A ROW, China, India, Philippines | Sep 8, 2020 | Jun 22, 2020 | Forward by 2.5 months |
FB-2A Mexico | Aug 15, 2020 | Jun 15, 2020 | Forward by 2 months |
Dates for Filing Family Visa Applications (determines when an I-485 can be filed) | |||
USCIS will determine and announce within a week – please check USCIS’s site. | |||
FB-1 ROW, China, India | Sep 1, 2017 | Sep 1, 2017 | No change |
FB-1 Mexico | Apr 1, 2005 | Apr 1, 2005 | No change |
FB-1 Philippines | Apr 22, 2015 | Apr 22, 2015 | No change |
FB-2A ROW, China, India, Philippines | Sep 1, 2023 | Sep 1, 2023 | No change |
FB-2A Mexico | Sep 1, 2023 | Sep 1, 2023 | No change |
USCIS will determine and publish separately, a few days after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.
Future Expectations for I-485 Filings for EB-2 and EB-3 India
USCIS and DOS have reported significant volume of pending I-485 applications and specifically for EB-2 and EB-3 India. According to USCIS, they have sufficient pending I-485 applications for EB-2/EB-3 India applicants to “use up all of the available visas for FY 2024 and several fiscal years in the future.” Many India applicants have been hoping for major forward movement in the cutoff dates in order to be able to file I-485 applications even if there is retrogression afterwards — not unlike the major movements that have occurred in the past. However, DOS and USCIS are subject to certain restrictions as to how much the cutoff dates can be advanced:
The Department of State (DOS) is required (INA Sec. 203) to make “reasonable estimates of the anticipated numbers of visas to be issued during any quarter of any fiscal year…and to rely upon such estimates in authorizing the issuance of visas.” Basically, DOS is not supposed to advance the cutoff dates if they do not believe that there are sufficient number of visas available; and at this time, there is no such availability. Hence, the lack of major forward movement in the Visa Bulletin. Similarly, INA Sec. 245 requires that an immigrant visa to be “immediately available” when an I-485 adjustment of status is filed. As a result, USCIS appears to be taking the position that they will be limiting the I-485 intake for the foreseeable future since the visa availability will be limited.
USCIS is reporting that they have enough inventory to use for several years’ supply of immigrant visas; as a result, given these INA provisions, we expect that EB-2/EB-3 India (and especially the dates used for filing of new I-485s) will likely move extremely slowly (if at all) for the foreseeable future.
Current Date?
Our office stands ready to assist in the applicable process. There are many applicants across many of the employment and family categories who can now process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.
Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications. We are also happy to provide a free quote for preparing and filing your I-485 application.
Confused About the Visa Bulletin?
We understand that the Visa Bulletin, with its the multiple publications, categories and conditions may be confusing – we invite you to review our Visa Bulletin Explained article for our attempt in helping applicants understand the Visa Bulletin and know what to look for (and when). Further Updates and News
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this month’s Visa Bulletin.
The post April 2024 Visa Bulletin – (Finally) Notable Forward Movement in Employment-based Categories appeared first on Capitol Immigration Law Group PLLC.
]]>The post April 1, 2024 H-1B Filing Fee Increase Explanation and Breakdown appeared first on Capitol Immigration Law Group PLLC.
]]>Also, as a reminder, the premium processing filing fee is set to increase starting February 26, 2024.
H-1B Filing Fees Starting April 1, 2024
The new fee rule creates several layers and types of fees which are applicable to different types of employers. We break down the fees by the type of employer (small employer, nonprofit, 25+ employees and 50+ employees with 50% H/L visa dependency) and by type of H-1B petition filing (initial, first extension, amendment without extension, and second and subsequent extensions).
H-1B – Small Employer (25 or fewer FTE¹) | ||
---|---|---|
Initial H-1B Filing (Transfer, Cap): | $460 + $300 + $500 + $750 = | $2,010 total |
First Extension: | $460 + $300 + $750 = | $1,510 total |
Amendment Without Extension OR Second and Subsequent Extensions: |
$460 + $300 = | $760 total |
H-1B – Nonprofit² | ||
Initial H-1B Filing (Transfer, Cap): | $460 + $500 + $750 = | $1,710 total |
First Extension: | $460 + $750 = | $1,210 total |
Amendment Without Extension OR Second and Subsequent Extensions: |
$460 | $460 total |
H-1B – Larger Employer (26+ FTE) | ||
Initial H-1B Filing (Transfer, Cap): | $780 + $600 + $500 + $1,500 = | $3,380 total |
First Extension: | $780 + $600 + $1,500 = | $2,880 total |
Amendment Without Extension OR Second and Subsequent Extensions: |
$780 + $600 = | $1,380 total |
H-1B – Larger and H-1B “Heavy” Employer (50+ Employees and 50+% H/L Workers) | ||
Initial H-1B Filing (Transfer, Cap): | $780 + $600 + $500 + $1,500 + $4,000 = | $7,380 total |
First Extension: | $780 + $600 + $1,500 = | $2,880 total |
Amendment Without Extension OR Second and Subsequent Extensions: |
$780 + $600 = | $1,380 total |
Additional Optional Premium Processing Service (15 bus. days) | ||
Premium Processing Filing Fee: | $2,805 | $2,805 total |
H-4 Dependents | ||
H-4 Extension or Change of Status: | $470 | $470 total |
H-4 Spouse EAD: | $520 | $520 total |
¹ FTE is the full-time equivalent number of employees. For example, if a company considers 40 hours to be a full-time workweek, then an employee working 40 hours per week would have an FTE of 1.0. On the other hand, a part-time employee working 20 hours per week would have an FTE of 0.5. This count includes affiliates and subsidiaries of the petitioner employer.
² Nonprofit employers are organizations approved by the Internal Revenue Service as a nonprofit entity under section 501(c)(3) of the IRC or as a government research organization; for the purpose of this fee, USCIS will not require petitioners to demonstrate an educational or research purpose.
More Detailed List of All New USCIS Fees
See our alert for a description and details on the increase of all other USCIS filing fees.
Final Rule Becomes Effective April 1, 2024; New Form Versions to Be Released
The final rule becomes effective on April 1, 2024 and USCIS will be releasing revised forms for many of the application types. All applications filed on or after April 1, 2024 will have to comply with the new filing fee requirements.
Conclusion
We urge our clients to consider making plans to file any upcoming applications before the new fees are to become effective on April 1, 2024. We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the 2024 USCIS fee increase.
The post April 1, 2024 H-1B Filing Fee Increase Explanation and Breakdown appeared first on Capitol Immigration Law Group PLLC.
]]>The post March 2024 Visa Bulletin – Retrogression in I-485 Filing Eligibility appeared first on Capitol Immigration Law Group PLLC.
]]>Which India and China Employment-based Applicants Are Eligible to File I-485 in March?
By using the Final Action Dates for Filing, USCIS will allow the following India and China applicants to file I-485 in the month of March 2024. This is a change from February 2024 (which used Dates for Filing) which effectively means that there is retrogression as to who is eligible to file I-485.
India
China
Summary of the March 2024 Visa Bulletin – Employment-Based (EB)
EB Category | Mar 2024 | Feb 2024 | Change |
---|---|---|---|
Employment Application Final Action Dates (determines when an I-485 or IV can be approved) | |||
EB-1 ROW, MX, PH | C | C | No change |
EB-1 India | Oct 1, 2020 | Sep 1, 2020 | Forward by 1 month |
EB-1 China | Jul 15, 2022 | Jul 1, 2022 | Forward by 2 weeks |
EB-2 ROW, MX, PH | Nov 22, 2022 | Nov 15, 2022 | Forward by 1 week |
EB-2 India | Mar 1, 2012 | Mar 1, 2012 | No change |
EB-2 China | Jan 1, 2020 | Jan 1, 2020 | No change |
EB-3 ROW | Sep 8, 2022 | Sep 1, 2022 | Forward by 1 week |
EB-3 India | Jul 1, 2012 | Jul 1, 2012 | No change |
EB-3 China | Sep 1, 2020 | Sep 1, 2020 | No change |
EB-3 Mexico | Sep 8, 2022 | Sep 1, 2022 | Forward by 1 week |
EB-3 Philippines | Sep 8, 2022 | Sep 1, 2022 | Forward by 1 week |
Dates for Filing Employment Visa Applications (determines when an I-485 can be filed) | |||
USCIS will determine and announce within a week – please check USCIS’s site. | |||
EB-1 ROW, MX, PH | Current | Current | No change |
EB-1 India | Jan 1, 2021 | Jan 1, 2021 | No change |
EB-1 China | Jan 1, 2023 | Jan 1, 2023 | No change |
EB-2 ROW, MX, PH | Feb 15, 2023 | Feb 15, 2023 | No change |
EB-2 India | May 15, 2012 | May 15, 2012 | No change |
EB-2 China | Jun 1, 2020 | Jun 1, 2020 | No change |
EB-3 ROW | Feb 1, 2023 | Feb 1, 2023 | No change |
EB-3 India | Aug 1, 2012 | Aug 1, 2012 | No change |
EB-3 China | Jul 1, 2021 | Jul 1, 2021 | No change |
EB-3 Mexico | Feb 1, 2023 | Feb 1, 2023 | No change |
EB-3 Philippines | Jan 1, 2023 | Jan 1, 2023 | No change |
Please note that USCIS will determine and publish, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.
Summary of the March 2024 Visa Bulletin – Family-Based (FB)
FB Category | Mar 2024 | Feb 2024 | Change |
---|---|---|---|
Family Application Final Action Dates (determines when an I-485 or IV can be approved) | |||
FB-1 ROW, China, India | Feb 8, 2015 | Jan 1, 2015 | Forward by 5 weeks |
FB-1 Mexico | May 1, 2001 | May 1, 2001 | No change |
FB-1 Philippines | Mar 1, 2012 | Mar 1, 2012 | No change |
FB-2A ROW, China, India, Philippines | Jun 22, 2020 | Feb 8, 2020 | Forward by 4.5 months |
FB-2A Mexico | Jun 15, 2020 | Feb 1, 2020 | Forward by 4.5 months |
Dates for Filing Family Visa Applications (determines when an I-485 can be filed) | |||
USCIS will determine and announce within a week – please check USCIS’s site. | |||
FB-1 ROW, China, India | Sep 1, 2017 | Sep 1, 2017 | No change |
FB-1 Mexico | Apr 1, 2005 | Apr 1, 2005 | No change |
FB-1 Philippines | Apr 22, 2015 | Apr 22, 2015 | No change |
FB-2A ROW, China, India, Philippines | Sep 1, 2023 | Sep 1, 2023 | No change |
FB-2A Mexico | Sep 1, 2023 | Sep 1, 2023 | No change |
USCIS will determine and publish separately, a few days after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.
Future Expectations for I-485 Filings for EB-2 and EB-3 India
USCIS and DOS have reported significant volume of pending I-485 applications and specifically for EB-2 and EB-3 India. According to USCIS, they have sufficient pending I-485 applications for EB-2/EB-3 India applicants to “use up all of the available visas for FY 2024 and several fiscal years in the future.” Many India applicants have been hoping for major forward movement in the cutoff dates in order to be able to file I-485 applications even if there is retrogression afterwards — not unlike the major movements that have occurred in the past. However, DOS and USCIS are subject to certain restrictions as to how much the cutoff dates can be advanced:
The Department of State (DOS) is required (INA Sec. 203) to make “reasonable estimates of the anticipated numbers of visas to be issued during any quarter of any fiscal year…and to rely upon such estimates in authorizing the issuance of visas.” Basically, DOS is not supposed to advance the cutoff dates if they do not believe that there are sufficient number of visas available; and at this time, there is no such availability. Hence, the lack of major forward movement in the Visa Bulletin. Similarly, INA Sec. 245 requires that an immigrant visa to be “immediately available” when an I-485 adjustment of status is filed. As a result, USCIS appears to be taking the position that they will be limiting the I-485 intake for the foreseeable future since the visa availability will be limited.
USCIS is reporting that they have enough inventory to use for several years’ supply of immigrant visas; as a result, given these INA provisions, we expect that EB-2/EB-3 India (and especially the dates used for filing of new I-485s) will likely move extremely slowly (if at all) for the foreseeable future.
Current Date?
Our office stands ready to assist in the applicable process. There are many applicants across many of the employment and family categories who can now process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.
Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications. We are also happy to provide a free quote for preparing and filing your I-485 application.
Confused About the Visa Bulletin?
We understand that the Visa Bulletin, with its the multiple publications, categories and conditions may be confusing – we invite you to review our Visa Bulletin Explained article for our attempt in helping applicants understand the Visa Bulletin and know what to look for (and when).
Further Updates and News
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this month’s Visa Bulletin.
The post March 2024 Visa Bulletin – Retrogression in I-485 Filing Eligibility appeared first on Capitol Immigration Law Group PLLC.
]]>The post USCIS Changes H-1B Cap Registration Lottery Selection Process to Be Beneficiary-Centric appeared first on Capitol Immigration Law Group PLLC.
]]>Selection Process Changed to Eliminate Duplicate Submissions and Decrease Incentives for Multiple Employers Unfairly Submitting H-1B Cap Registrations
Overall, the submission process will remain largely unchanged from prior years. As in the past, employers will be expected to submit H-1B cap registrations in good faith for their employees during the registration window (March 6, 2024 to March 22, 2024 this year) and using the same registration system and process. Employers will still be required to make an attestation that they are submitting the H-1B cap registration in good faith.
As part of each registration, USCIS will require the beneficiary’s passport (or travel document for applicants who do not have passports such as asylees, refugees, and similar) information. The passport must be the one which the beneficiary intends to use to obtain H-1B and to travel to the US the next time they enter the US. As a result, beneficiaries must be able to submit a passport that is valid at the time of registration and at least for some time in the future during the H-1B petition validity period (ideally for the entire H-1B petition validity period).
USCIS will use the passport and other identity information for each beneficiary to ensure that each beneficiary is counted only once for H-1B cap selection purposes and USCIS will conduct the random selection lottery as they have done in prior years. If a selected beneficiary has more than one employer who have submitted registration, all employers will be notified independently of the beneficiary’s selection and then each employer will be able to submit an H-1B petition for the beneficiary.
The end goal is that each beneficiary will have the same chance of being selected, regardless of how many registrations are submitted on their behalf. According to USCIS and based on last year’s demand numbers, they expect this change in the selection method to decrease the pool of lottery registrants by more than 70,000.
Correct and Valid Passport Information Becomes Critical to Avoid Rejections or Revocations
As noted, USCIS will rely on the beneficiary’s passport information (in addition to other details such as name and date of birth) to ensure that each beneficiary is counted only once. USCIS will require the beneficiary’s passport (or travel document for applicants who do not have passports such as asylees, refugees, and similar) during the selection process.
The passport (or travel document) must be the one which the beneficiary intends to use to obtain H-1B and to travel to the US the next time they enter the US. As a result, beneficiaries must be able to submit a passport that is valid at the time of registration and at least for some time in the future during the H-1B petition validity period (ideally for the entire H-1B petition validity period).
For example, if a beneficiary uses a passport for the H-1B cap registration during March 2024 that has an expiration of September 2024, then they will not be able to use that same passport for traveling to the US in the future (upon approval of the H-1B petition). We recommend NOT using this passport for the registration and obtaining a new renewed passport in time for the H-1B cap registration.
USCIS are indicating that they will use methods to determine improper submissions such as beneficiaries submitting different passport information, from different countries (from nationals of multiple countries) and, when duplicates are submitted, they will reject all registrations for any such candidate or, if the petition is already approved, they will seek to revoke it. USCIS are also indicating that they may not take negative action in cases of legitimate changes such as name change due to marriage, change in gender identity, a change in passport due to expiration, stolen passport or similar.
Multiple Registrations by Related Entities
As part of the new rule, USCIS is not formally banning related entities from submitting multiple registrations for the same individual. However, they may still do so at a later time if they still find abuse in the system and the registration process. Additionally, the attestation of good faith job offer and submission remain part of the registration process.
Frequently Asked Questions
We will continue to update this page with more information and frequently asked questions so please check back or contact us if we can be of any assistance.
Will one H-1B registrant employer be made aware of a candidate has another registration by another employer? USCIS will notify all registrants who have submitted a lottery registration for a candidate who has been selected. However, USCIS will not notify or otherwise indicate if (or how many) H-1B cap registrations there may be for a specific candidate.
Is there an exception to the valid passport requirement? Unfortunately, no. A valid passport (or travel permit for applicants who are unable to get a passport) is required for submission of the H-1B cap registration.
Can registrants submit varying information during the registration? In the final rule USCIS is reiterating multiple times the fact that registrants who submit incorrect identifying information (without a good reason) will be subject to lottery rejection or, if post-approval, to H-1B petition revocation. The integrity of this process relies on submitting correct identifying information and we anticipate that USCIS will be closely following and checking for abuse.
If a registrant has multiple registrations by different employers, can many or all of the employers file H-1B petition? Yes. If a registrant is selected and they have multiple registrations from multiple employers, then each employer is eligible to file their own petition but each employer may not necessarily know of the existence of other employers. We advise employers to consider the possibility that their candidate may have multiple registrations (and H-1B approvals) that they may be able to pursue.
More Details and Information About the H-1B Cap Submission
Please review our guide to the H-1B cap filing season including key dates, timelines and key points and procedures for the process.
Attorney Assistance with H-1B Cap Preparation and Submission
Our office will be happy to provide consultations or assistance with preparing and submitting petitions H-1B cap petitions.
We offer flat fees to handle the entire application and you can contact us or request a flat fee quote. Alternatively, if you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the actual filing ), we offer phone consultations.
Conclusion
With the H-1B cap filing process changed substantially over the past couple of seasons and with very high demand expected, we urge H-1B employers to start the preparation process early and to conduct a thorough case analysis before submitting the H-1B cap lottery entry in early March.
If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible or submit our H-1B cap contact form. Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application. Also, we invite you to subscribe to our free weekly newsletter to obtain further news and developments on this topic.
The post USCIS Changes H-1B Cap Registration Lottery Selection Process to Be Beneficiary-Centric appeared first on Capitol Immigration Law Group PLLC.
]]>The post USCIS Increases Filing Fees Starting April 1, 2024 appeared first on Capitol Immigration Law Group PLLC.
]]>The highlights of the final rule are: significant filing fee increase for I-485 applicants and especially the additional fee for EAD/AP applications; higher and additional fees for I-129 and I-140 petitions; premium processing will take 15 calendar (and not business) days; and the H-1B cap registration fee will increase to $215 starting next year. Details below.
Also, as a reminder, the premium processing filing fee is set to increase starting February 26, 2024.
USCIS Filing Fees Increase
The table below highlights the filing fee increase for the most common types of USCIS filings. See the final rule text for the full rule and a full listing of the new fees.
Form | Current Fee | New Fee | Increase ($) | Increase (%) |
---|---|---|---|---|
I-90 Green Card Replacement | $455 | $465 | $10 | 2% |
I-129 Nonimmigrant Worker (H-1) (small employers and nonprofits) | $460 | $460† ‡ | $0 | 0% |
I-129 Nonimmigrant Worker (H-1) | $460 | $780† | $320 | 70% |
I-129 Nonimmigrant Worker (E/TN/P/Q/R) (small employers and nonprofits) | $460 | $510† ‡ | $50 | 11% |
I-129 Nonimmigrant Worker (E/TN/P/Q/R) | $460 | $1,015† | $555 | 121% |
I-129 Nonimmigrant Worker (L-1) (small employers and nonprofits) | $460 | $695† ‡ | $235 | 51% |
I-129 Nonimmigrant Worker (L-1) | $460 | $1,385† | $925 | 201% |
I-129 Nonimmigrant Worker (O) (small employers and nonprofits) | $460 | $530† ‡ | $70 | 15% |
I-129 Nonimmigrant Worker (O) | $460 | $1,055† | $595 | 129% |
I-130 Immigrant Petition/Family | $535 | $675 | $140 | 26% |
I-131 Travel Document (advance parole, reentry permit) | $575 | $630 | $55 | 10% |
I-140 Immigrant Petition/Employment | $700 | $715† | $15 | 2% |
I-290B Notice of Appeal or Motion | $675 | $800 | $125 | 19% |
I-485 Adjustment of Status | $1,140 | $1,440 | $300 | 26% |
I-485 Adjustment of Status (certain minors) | $750 | $950 | $200 | 27% |
I-539 Change or Extend Status | $370 | $470 | $100 | 27% |
I-751 Removal of Condition | $595 | $750 | $155 | 26% |
I-765 EAD | $410 | $520 | $110 | 27% |
N-400 US Citizenship | $640 | $760 | $120 | 19% |
USCIS Immigrant Fee | $220 | $235 | $15 | 7% |
H-1B Registration Process Fee | $10 | $215 | $205 | 2,050% |
† Plus Asylum Program Fee. Additional $600 – see below for details.
‡ Small Employers and Nonprofits. Small employers are defined as employers having 25 or fewer full-time equivalent (FTE) employees. Small employers and nonprofit employers will get fee discounts.
Online Filings. Filing fees for online filing (for cases which allow it) get $50 filing fee discount.
Biometrics Fees. The biometrics fees will be included in most filing fees; if biometrics have to be billed separately they will be charged at $30.
$600 Asylum Program Fee Added to H-1Bs (and Other I-129) and I-140 Petitions
USCIS is adding a new Asylum Program Fee of $600 which will be paid by employers filing Form I-129, Form I-129CW, or Form I-140. Nonprofit employers will be exempt and small employers (25 or fewer full-time equivalent employees) will pay 50%, or $300. This fee will apply for all I-129 filings, including H-1B amendments and extensions.
Also: I-129 Petitions Separated Into Different Forms with Different Filing Fees
USCIS is separating I-129 petitions based on the type of visa classification requested and will different fees based on the visa type. Currently, all I-129 petitions pay the same $460 filing fee and certain petition types such as H-1B or L-1 pay additional filing fees. Under the new fee structure, different visa types will pay different fees and use different application forms. Note that the additional H-1B and L-1 fees (such as the $500 fraud prevention fee, the $1,500 ACWIA fee, etc.) would continue to apply.
H-1B Fee Examples
To illustrate the cumulative increase of the fees to employers, we provide a couple of H-1B and I-140 fee examples:
Company A has 30 employees. They wish to hire an H-1B worker and transfer their H-1B petition. Currently, their filing fee for a first-time H-1B petition is $460 filing fee plus $500 fraud prevention fee plus $1,500 ACWIA filing fee, or total of $2,460. Under the new fees, they will have to pay $780 filing fee plus $600 asylum program fee plus $500 fraud prevention fee plus $1,500 ACWIA filing fee, or total of $3,380. This is an increase of $920 per filing. Plus optional premium processing fee.
Company B has 10 employees. Same scenario – H-1B transfer of a new hire. Current total fee amount is $1,710 ($460 + $500 + $750). Under the new rule, the fees will be $780 + $300 asylum program fee (employers with 25 or fewer FTEs) + $500 +$750 = $2,330. This is an increase of $620 per filing. Plus optional premium processing fee.
Company A files I-140 petition. Current fee is $700. New fee is $715 + $600 asylum program fee. Total of $1,415. Plus optional premium processing fee.
Company B (25 or fewer FTEs) files I-140 petition. New fee is $715 + $300 asylum program fee, for a total of $1,015. Plus optional premium processing fee.
How Much Exactly Is the New H-1B Filing Fee? Please refer to our specific and detailed H-1B filing fee alert which provides a detailed explanation and breakdown of the new H-1B filing fees.
Major H-1B Cap Registration Filing Fee Increase To Become Effective Next Year (2025)
USCIS is increasing very substantially the H-1B “cap” registration fee from $10 to $215; however, this increase will become effective in March of 2025. This year (March 2024) H-1B cap season will be under the current $10 filing fee.
I-485 Adjustment of Status Applications Will No Longer Include “Free” EAD Work Permit and Advance Parole Applications (Initial or Renewal)
USCIS is removing the “free” inclusion of I-765 EAD and I-131 Advance Parole applications with the main I-485 adjustment of status application fee (while increasing it). Currently, the I-485 fee includes the initial EAD and AP applications, in addition to extensions which is a great benefit to many applicants (India and China mainly) who wait multiple years for I-485 approval and need to renew EAD/AP multiple times.
Under the new rule, an applicant who wishes to file for an I-485 EAD or Advance Parole will have to pay separate fee (for each of these applications) for the initial filing and for any renewals. I-765 EAD filings will get a 50% fee discount if filed with or after I-485 (50% of $520 is $260); while I-131 Advance Parole applications will have to pay the full fee of $630. This would add approximately $890 per person in filing fees for the initial and for each EAD/AP renewal.
Example: Under the current fee structure, an I-485 India applicant pays $1,225 filing fee for I-485, initial I-765 EAD and I-131 Advance Parole (AP) plus unlimited EAD and AP extensions until I-485 decision. Under the new fee structure, the same I-485 India applicant will pay $1,440 I-485 filing fee + $260 EAD + $630 AP = $2,330 total. And then, for each EAD/AP renewal, another $890 ($260 + $630).
Premium Processing Required Response Timeline to Increase to 15 Business Days (Plus Upcoming Separate Premium Processing Fee Increase)
The final increases the time USCIS adjudicators have to provide a response (or decision) on a pending application filed with a request for premium processing. The current rule requires a response within 15 calendar days while the final rule will change this to 15 calendar days. This is a 50% increase in the allowed time for a decision. Additionally, under a separate rule, the fees for premium processing are also increasing starting February 26, 2024. See our alert.
Rationale of Fee Increase
The final rule describes that the reason USCIS is raising the filing fees is to bring the fees in line with the actual and anticipated costs of USCIS providing the applicable services. USCIS is a fee-funded agency and it is required to evaluate periodically its fees in order to ensure proper national security, staffing and processing goals milestones. By implementing the fee increase, USCIS aims to close an estimated annual shortfall caused mainly due to increased USCIS costs and falling number of applications. Simply put, the fee increase is intended to reflect USCIS’s increased case processing costs and to ensure that no services have to be cut (and processing times increased).
Final Rule Becomes Effective April 1, 2024; New Form Versions to Be Released
The final rule becomes effective on April 1, 2024 and USCIS will be releasing revised forms for many of the application types. All applications filed on or after April 1, 2024 will have to comply with the new filing fee requirements.
History has taught us that any time there is a fee increase, there is a spike in the number of filings which results in long processing times. Certain applications (e.g. N-400 naturalization, I-485 adjustment of status) will become much more expensive after April 1st and we expect a significant spike in applications before the new fees take effect.
Conclusion
Many of our readers and especially those who are frequent filers (corporate clients, mainly) will not be very happy with the prospect of having to pay an (significantly) increased fee especially when the service level is decreased (such as premium processing). We are hoping that USCIS will be able to bring down what are already long processing times and generally provide higher level of service (faster turnaround, better processing times).
We urge our clients to consider making plans to file any upcoming applications before the new fees are to become effective on April 1, 2024. We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the 2024 USCIS fee increase.
The post USCIS Increases Filing Fees Starting April 1, 2024 appeared first on Capitol Immigration Law Group PLLC.
]]>The post How to File an H-1B Cap Petition When the Current Degree is Still Underway? appeared first on Capitol Immigration Law Group PLLC.
]]>There is good news and a number of options to make this work. While USCIS requires the qualifying degree to be in place by the time the H-1B petition is filed, USCIS does not require the degree to be completed at the time of H-1B cap registration. There may be ways of using previously-completed (and related) degrees but this option should be evaluated very early as it may affect the way the H-1B cap registration is submitted to USCIS in March.
Background: Supporting H-1B Employee’s Degree Must be Completed by H-1B Petition Filing
The general rule with respect to using educational degrees for H-1B cap filings is that a degree must be completed before the H-1B petition is filed with USCIS in order for this degree to be usable to qualify its holder for H-1B work visa filing under the H-1B cap. USCIS has clarified that they would accept degrees as completed when all of the courses and degree requirements have been completed by the H-1B petition filing date and that the only outstanding item remaining is the actual graduation ceremony.
Fortunately, the H-1B cap calendar has shifted in a favorable way to recent foreign graduates. Under the current H-1B cap process, an H-1B cap registration is submitted on March 1st and the selected H-1B cap registrations are notified towards the end of March and are normally given a three month window to prepare and submit an H-1B petition. This window often goes until June 30th and essentially it means that the H-1B petition and all requirements (including the candidate’s education) must be completed and submitted by the end of June.
As a result, it is possible and, in our experience: fairly common, for a candidate to NOT have a completed degree by the time the H-1B cap registration is filed in early March but as long as this degree is completed at some time before June 30th, the candidate can still submit and obtain an H-1B cap approval.
Why Should I Try to File H-1B Cap Before Graduation?
The simple answer is: to increase the chance of getting an H-1B cap petition filing accepted for processing under the random H-1B cap lottery (and ultimately, approved). Those candidates lucky enough to have an employer willing to sponsor their H-1B even before graduation should consider the possibility of making a case for H-1B cap petition filing even before graduation. Even if the case is not successful under the H-1B cap lottery, they will likely have at least one (and perhaps more if using F-1 OPT) extra opportunity to do so again in next year’s H-1B cap.
H-1B Cap Filing Based on Prior or Partially-Completed Education
Even when the degree is not completed by the time the H-1B cap petition has to be filed (normally, June 30th), all is not lost. An H-1B petition normally requires that the position require a bachelor’s degree or higher and that the foreign worker have such a degree. So, if a master’s degree student is working on completing their master’s degree but the degree requirements are not completed by June 30th, and assuming the undergraduate degree is related to the offered position, the H-1B employer can still file a cap H-1B petition on behalf of the foreign national. Yes, the H-1B cap will have to be under the general (65,000 visas) cap as opposed to the master’s (additional 20,000 visas) cap; but it still allows a filing and an extra shot at the cap lottery.
Additionally, USCIS accepts work experience in lieu of missing education. Three years of relevant experience can be used to supplement each missing year of education. So if an foreign worker has three years of completed education but at least three years of related work experience, it may be possible to make an equivalency argument for a bachelor’s degree. This may even allow a foreign student who is pursuing their bachelor’s degree in the U.S. and who has at least three years of relevant experience to make a case for H-1B cap filing.
Conclusion
With the high anticipated demand during the H-1B cap season and the anticipated lottery, it becomes increasingly important for H-1B employers and their H-1B visa candidates to take advantage of any available opportunity to increase their chances to ultimately get selected under the H-1B cap. Being able to file under more than once, in two or three, H-1B cap lottery iterations becomes one of the key (and sometimes overlooked) ways to boost one’s chances.
We are hopeful that this article would allow at least some H-1B employers and workers to evaluate the opportunity of filing for H-1B under this year’s cap even if the degree is still in progress and will not be completed by June 30th. Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way. Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.
The post How to File an H-1B Cap Petition When the Current Degree is Still Underway? appeared first on Capitol Immigration Law Group PLLC.
]]>The post February 2024 Visa Bulletin – No Notable Employment-based Category Movement appeared first on Capitol Immigration Law Group PLLC.
]]>India
China
EB-2 to EB-3 China Downgrade Opportunities EB-2 China applicants without pending I-485 who have a priority date between June 1, 2020 and July 1, 2021 may benefit from EB-3 downgrade with a concurrent I-485 filing. Please contact us for analysis and a flat fee quote for the process. See our alert on the mechanics and benefits of downgrading EB-2 to EB-3.
Summary of the February 2024 Visa Bulletin – Employment-Based (EB)
EB Category | Feb 2024 | Jan 2024 | Change |
---|---|---|---|
Employment Application Final Action Dates (determines when an I-485 or IV can be approved) | |||
EB-1 ROW, MX, PH | C | C | No change |
EB-1 India | Sep 1, 2020 | Sep 1, 2020 | No change |
EB-1 China | Jul 1, 2022 | Jul 1, 2022 | No change |
EB-2 ROW, MX, PH | Nov 15, 2022 | Nov 1, 2022 | Forward by 2 weeks |
EB-2 India | Mar 1, 2012 | Mar 1, 2012 | No change |
EB-2 China | Jan 1, 2020 | Jan 1, 2020 | No change |
EB-3 ROW | Sep 1, 2022 | Aug 1, 2022 | Forward by 1 month |
EB-3 India | Jul 1, 2012 | Jun 1, 2012 | Forward by 1 month |
EB-3 China | Sep 1, 2020 | Sep 1, 2020 | No change |
EB-3 Mexico | Sep 1, 2022 | Aug 1, 2022 | Forward by 1 month |
EB-3 Philippines | Sep 1, 2022 | Aug 1, 2022 | Forward by 1 month |
Dates for Filing Employment Visa Applications (determines when an I-485 can be filed) | |||
USCIS will determine and announce within a week – please check USCIS’s site. | |||
EB-1 ROW, MX, PH | Current | Current | No change |
EB-1 India | Jan 1, 2021 | Jan 1, 2021 | No change |
EB-1 China | Jan 1, 2023 | Jan 1, 2023 | No change |
EB-2 ROW, MX, PH | Feb 15, 2023 | Feb 15, 2023 | No change |
EB-2 India | May 15, 2012 | May 15, 2012 | No change |
EB-2 China | Jun 1, 2020 | Jun 1, 2020 | No change |
EB-3 ROW | Feb 1, 2023 | Feb 1, 2023 | No change |
EB-3 India | Aug 1, 2012 | Aug 1, 2012 | No change |
EB-3 China | Jul 1, 2021 | Jul 1, 2021 | No change |
EB-3 Mexico | Feb 1, 2023 | Feb 1, 2023 | No change |
EB-3 Philippines | Jan 1, 2023 | Jan 1, 2023 | No change |
Please note that USCIS will determine and publish, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.
Summary of the February 2024 Visa Bulletin – Family-Based (FB)
FB Category | Feb 2024 | Jan 2024 | Change |
---|---|---|---|
Family Application Final Action Dates (determines when an I-485 or IV can be approved) | |||
FB-1 ROW, China, India | Jan 1, 2015 | Jan 1, 2015 | No change |
FB-1 Mexico | May 1, 2001 | May 1, 2001 | No change |
FB-1 Philippines | Mar 1, 2012 | Mar 1, 2012 | No change |
FB-2A ROW, China, India, Philippines | Feb 8, 2020 | Nov 1, 2019 | Forward by 3 months |
FB-2A Mexico | Feb 1, 2020 | Oct 22, 2019 | Forward by 3 months |
Dates for Filing Family Visa Applications (determines when an I-485 can be filed) | |||
USCIS will determine and announce within a week – please check USCIS’s site. | |||
FB-1 ROW, China, India | Sep 1, 2017 | Sep 1, 2017 | No change |
FB-1 Mexico | Apr 1, 2005 | Apr 1, 2005 | No change |
FB-1 Philippines | Apr 22, 2015 | Apr 22, 2015 | No change |
FB-2A ROW, China, India, Philippines | Sep 1, 2023 | Sep 1, 2023 | No change |
FB-2A Mexico | Sep 1, 2023 | Sep 1, 2023 | No change |
USCIS will determine and publish separately, a few days after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.
Future Expectations for I-485 Filings for EB-2 and EB-3 India
USCIS and DOS have reported significant volume of pending I-485 applications and specifically for EB-2 and EB-3 India. According to USCIS, they have sufficient pending I-485 applications for EB-2/EB-3 India applicants to “use up all of the available visas for FY 2024 and several fiscal years in the future.” Many India applicants have been hoping for major forward movement in the cutoff dates in order to be able to file I-485 applications even if there is retrogression afterwards — not unlike the major movements that have occurred in the past. However, DOS and USCIS are subject to certain restrictions as to how much the cutoff dates can be advanced:
The Department of State (DOS) is required (INA Sec. 203) to make “reasonable estimates of the anticipated numbers of visas to be issued during any quarter of any fiscal year…and to rely upon such estimates in authorizing the issuance of visas.” Basically, DOS is not supposed to advance the cutoff dates if they do not believe that there are sufficient number of visas available; and at this time, there is no such availability. Hence, the lack of major forward movement in the Visa Bulletin. Similarly, INA Sec. 245 requires that an immigrant visa to be “immediately available” when an I-485 adjustment of status is filed. As a result, USCIS appears to be taking the position that they will be limiting the I-485 intake for the foreseeable future since the visa availability will be limited.
USCIS is reporting that they have enough inventory to use for several years’ supply of immigrant visas; as a result, given these INA provisions, we expect that EB-2/EB-3 India (and especially the dates used for filing of new I-485s) will likely move extremely slowly (if at all) for the foreseeable future.
Current Date?
Our office stands ready to assist in the applicable process. There are many applicants across many of the employment and family categories who can now process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.
Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications. We are also happy to provide a free quote for preparing and filing your I-485 application.
Confused About the Visa Bulletin?
We understand that the Visa Bulletin, with its the multiple publications, categories and conditions may be confusing – we invite you to review our Visa Bulletin Explained article for our attempt in helping applicants understand the Visa Bulletin and know what to look for (and when). Further Updates and News
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this month’s Visa Bulletin.
The post February 2024 Visa Bulletin – No Notable Employment-based Category Movement appeared first on Capitol Immigration Law Group PLLC.
]]>The post What To Do If My I-485 Green Card is Approved (in Error) When My Priority Date is Not Current? appeared first on Capitol Immigration Law Group PLLC.
]]>Visa Number Must Be Available for I-485 Approval
An I-485 applicant for adjustment of status must have a visa number “available” before their green card can be approved. USCIS relies on the Department of State (DOS) Visa Bulletin and, specifically, on the cutoff dates listed in the “Final Action” column (see our Visa Bulletin Explainer; also see the most recent Visa Bulletin published by DOS).
The relevant USCIS rule, in 8 CFR 245.2(a)(5)(ii), states that “[a]n application for adjustment of status, as a preference alien, shall not be approved until an immigrant visa number has been allocated by the Department of State.”
So the question then is, When does the visa allocation by DOS happen? USCIS has confirmed that it subtracts a visa number only upon adjudication of the application to adjust status and not in advance. In other words, USCIS does not “reserve” visa numbers for a pending I-485.
A visa number is not subtracted from the annual limit based on any other preliminary step in the adjudication process (that is, not at the time of filing, not at the time of interview scheduling, not at the time of transferring to a USCIS Field Office, not with the issuance of a Request for Evidence, not with the approval of the underlying immigrant visa petition, not with the granting of a transfer of underlying basis request, etc.). There is also no reservation or pre-allocation of a visa number to an applicant at any of these procedural steps. If USCIS has approved an adjustment of status application for a principal applicant, but the applications of dependent family members remain pending, immigrant visa numbers have not yet been subtracted from the annual limit for the dependent family members.
See USCIS’s Employment-Based Adjustment of Status FAQs, Updated 03/22/2023.
This basically means that an I-485 can be approved only when the priority date is current and there is a visa number available at the time of I-485 approval.
How Do I Know If My I-485 Has Been Approved in Error?
The best way is to look at the Visa Bulletin which is in effect as of the date of I-485 approval and compare the underlying petition’s I-140 priority date and the cutoff date for the relevant preference category and country of chargeability under the “Final Action” section of the Visa Bulletin.
If the priority date is NOT earlier than the Final Action cutoff date for the preference category, then this is an indication that the I-485 application may have been approved in error.
Is it a Big Problem if My I-485 Has Been Approved Prematurely and in Error?
Yes, this can be a major problem for both the short term green card validity (risk of rescission of the green card) and also down the road during a possible US naturalization application to become a US citizen (risk of denial and rescission).
First, under 8 CFR 246.1, USCIS can commence proceedings to rescind the adjustment of status and permanent residence by issuing a Notice of Intent to Rescind within 5 years of the date of adjustment which would occur if the agency obtains information leading it to believe the individual was not eligible for lawful permanent resident status. While USCIS rarely double-checks their files after approval, it is possible that USCIS may still realize that an I-485 has been approved in error and seek to rescind the approval. A rescission of the green card will leave the applicant without valid status in the US.
Additionally, section 218 of Immigration and Nationality Act (INA) requires a naturalization applicant to demonstrate that they have been lawfully admitted to the US as permanent resident in accordance with the rules in effect at the time of the green card approval. As a result, USCIS could deny an application for naturalization where the application to adjust status to permanent resident status was erroneously approved, even if such approval was due to USCIS error.
As noted, a premature erroneous approval of I-485 can be a major risk that, if not addressed, will post danger for a number of years. It is very important to analyze the applicant’s circumstances including status, travel and work authorization needs, ability to extend, and more to craft the best course of action.
How to Fix a Premature I-485 Approval?
First, as noted, we recommend carefully analyzing and confirming that an I-485 has been approved in error. Then, we recommend carefully analyzing the applicant’s nonimmigrant options, including work authorization and travel needs and documents, availability of nonimmigrant status (H-1B, H-4, etc.) and whether any of the correction steps may cause additional unforeseen challenges.
1.Option 1. Generally, it is recommended that the applicant or their attorney contact USCIS Contact Center and request that the I-485 application be reopened. This is best done very early after I-485 approval. In our experience, contacting USCIS does not always result immediate reopening of I-485 and, if applicable, prior nonimmigrant status reinstatement and this option may still require filing a Motion to Reopen (see below) and repeatedly contacting and following-up with USCIS.
2.Option 2. It is also possible for the applicant to submit I-290B Motion to Reopen for each of the family members’ approved I-485 applications and seek to have the approved cases reopened and reinstates as pending. Compared to contacting USCIS, filing a Motion to Reopen is a more formal (application) process seeking to correct or reverse a wrong USCIS decision. USCIS also is required to review the request and take corrective steps.
In either scenario, it is important to also consider the applicant’s options with respect to reinstating any nonimmigrant status (such as H-1B, H-4, etc.) held prior to the erroneous I-485 approval. This should be part of the USCIS correspondence and a request should specifically be made. It may be possible to also seek extensions or changes of nonimmigrant status following the reopening of the I-485.
Conclusion
We urge all I-485 applicants to hold the post-approval celebrations for a minute and to ensure that their I-485 has been properly approved. See our alert on What Happens Post-I-485 Approval. This is especially true when the applicant gets a “surprise” approval without necessarily expecting it because their priority date is not current. We also urge applicants who may suspect that their I-485 has been approved in error to carefully evaluate their options as soon as possible.
Our office is happy and available to assist clients with analyzing any such situation and helping with further steps. Please do not hesitate to contact us or consider our consultation options. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.
The post What To Do If My I-485 Green Card is Approved (in Error) When My Priority Date is Not Current? appeared first on Capitol Immigration Law Group PLLC.
]]>The post USCIS Increases I-907 Premium Processing Filing Fee Starting February 26, 2024 appeared first on Capitol Immigration Law Group PLLC.
]]>Rationale of Fee Increase and Effective Date
The USCIS Stabilization Act established the current premium processing fees and the authority for the Department of Homeland Security to adjust the premium fees on a biennial basis. After leaving these fees unchanged for the three years following the passage of the Act, DHS now is increasing the premium processing fees USCIS charges for all eligible forms and categories to reflect the amount of inflation from June 2021 through June 2023 according to the Consumer Price Index for All Urban Consumers.
If USCIS receives a Form I-907 postmarked on or after Feb. 26, 2024 with the incorrect filing fee, they will reject the filing and return the filing fee. For filings sent by commercial courier (such as UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt.
New Premium Processing Fees Starting February 26, 2024
Application or Petition Form | Previous Fee | New Fee |
---|---|---|
Form I-129, Petition for a Nonimmigrant Worker |
$1,500 (H-2B or R-1 nonimmigrant status)
$2,500 (All other available Form I-129 classifications (E-1, E-2, E-3, H-1B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2))
|
$1,685 (H-2B or R-1 nonimmigrant status)
$2,805 (All other available Form I-129 classifications (E-1, E-2, E-3, H-1B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2))
|
Form I-140, Immigrant Petition for Alien Worker | $2,500 (Employment-based (EB) classifications E11, E12, E21 (non-NIW), E31, E32, EW3, E13 and E21 (NIW)) | $2,805 (Employment-based (EB) classifications E11, E12, E21 (non-NIW), E31, E32, EW3, E13 and E21 (NIW)) |
Form I-539, Application to Extend/Change Nonimmigrant Status | $1,750 (Form I-539 classifications F-1, F-2, M-1, M-2, J-1, J-2, E-1, E-2, E-3, L-2, H-4, O-3, P-4, and R-2) | $1,965 (Form I-539 classifications F-1, F-2, M-1, M-2, J-1, J-2, E-1, E-2, E-3, L-2, H-4, O-3, P-4, and R-2) |
Form I-765, Application for Employment Authorization | $1,500 (Certain F-1 students with categories C03A, C03B, C03C) | $1,685 (Certain F-1 students with categories C03A, C03B, C03C) |
Premium Processing Details
Please see this alert with more detailed information about the premium processing service including eligibility, fees and timelines.
General USCIS Filing Fee Increase to Follow Starting April 1, 2024
Additionally, USCIS is raising their filing fees with some significant increases for employers. The new fees are in effect on April 1, 2024. See our alert.
Conclusion
We hope that the fee increase would allow USCIS to be able to increase staffing levels and to increase the level of service.
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this USCIS fee increase.
The post USCIS Increases I-907 Premium Processing Filing Fee Starting February 26, 2024 appeared first on Capitol Immigration Law Group PLLC.
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