USCIS Adopts DOL’s Definition of “Science or Art” for Schedule A PERM Filings

USCIS issued new policy guidance to adopt the Department of Labor’s definition of “science or art” for certain PERM cases that bypass DOL review.

As background, while many EB-2 and EB-3 petitioners must submit a PERM to the DOL for certification before filing a Form I-140, Immigrant Visa Petition, for certain occupations referred to as “Schedule A” occupations, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available, and employers are therefore able to submit the PERM directly to USCIS along with the I-140, bypassing the DOL.

Schedule A includes two groups, as defined by DOL: Group I, registered nurses and physical therapists; and Group II, beneficiaries with exceptional ability in the sciences or arts (except performing arts) and beneficiaries with exceptional ability in performing arts.

While USCIS already considered DOL regulations when adjudicating Schedule A occupations before this update, the updated policy guidance ensures consistency in USCIS’s application of Schedule A, and namely Group II, classifications.

USCIS’s Policy Manual now includes DOL’s definition of “science or art”: “any field of knowledge of skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill.”

The policy guidance clarifies that adjudicators should not confuse the requirements for designating a beneficiary under Schedule A, Group II (immigrants of exceptional ability in the sciences or arts, including performing arts) with the requirements to classify someone under the EB-2 category (for immigrants of exceptional ability in the sciences, arts, or business). While both DOL and USCIS regulations refer to noncitizens of "exceptional ability," each regulation defines the term "exceptional ability" differently.

DOL's standard for Schedule A, Group II designation is "widespread acclaim and international recognition accorded the alien by recognized experts in the alien's field," (similar to the standard used for the EB-1A category but distinct from the EB-2 category's requirement of "a degree of expertise significantly above that ordinarily encountered.").

For Schedule A, Group II cases, the documentation required must be accompanied by evidence of exceptional ability.

Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the updated guidance on Schedule A, Group II may apply to your circumstances, please contact your team at D&S.

USCIS Updates Policy Guidance on Two-Year Foreign Residence Requirement for J-1 Visa Holders

On October 24, 2023, USCIS issued policy guidance clarifying how it determines whether a J-1 visa holder has met the two-year foreign residence requirement. Certain J-1 exchange visitors are required to reside in their “home” country (their country of nationality or last legal residence abroad) for at least two years before they are eligible to apply for an immigrant visa, green card, or nonimmigrant H, L, or K visa.

The updated guidance clarifies that:

• A travel day, where part of the day is spent in the home country, counts towards the two-year foreign residence requirement;

• When it is impossible for the J-1 exchange visitor to satisfy the two-year foreign residence requirement, USCIS considers the situation on a case-by-case basis, in consultation with the Department of State; and

• Foreign medical graduates seeking a waiver of the requirement must obtain a contract from a health care facility in an underserved area, unless:

  • The U.S. Department of Veterans’ Affairs (VA) requests the waiver and the foreign medical graduate practices with the VA for at least 3 years;

  • A federal agency requests the waiver, and the foreign medical graduate practices clinical medicine full time for the agency for at least 3 years; or

  • A federal or state agency requests the waiver for the foreign medical graduate to practice specialty medicine where there is a shortage of health professionals able to provide services in that specialty, and the foreign medical graduate practices for at least 3 years.

USCIS determines whether the two-year foreign residence requirement was met under the preponderance of the evidence standard—in other words, USCIS determines whether it is more likely than not that the requirement was met.
The updated guidance applies to benefit requests filed on or after October 24, 2023.

Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the two-year foreign residence requirement may apply to your specific circumstances, please contact your team at D&S.

D&S September 2023 Visa Bulletin Summary

The Department of State has released the September 2023 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. In September 2023, USCIS will accept employment-based adjustment of status applications based on the Final Action Dates For Employment-Based Preference chart. To be eligible to file an adjustment of status application in September 2023, foreign nationals must have a priority date that is earlier than that listed on the Final Action Date chart.

With respect to Final Action Dates, all categories remain unchanged from last month. The EB-1 China Final Action date will remain at February 1, 2022, the EB-1 India Final Action date will remain at January 1, 2012, while the EB-1 Final Action date for all other countries will have a cutoff date of August 1, 2023. 

The EB-2 China Final Action date will remain July 8, 2019 and the Final Action date for EB-2 India will remain January 1, 2011. The EB-2 Final Action date for all other countries will advance to July 1, 2022. 

In September, the Final Action date for EB-3 China Professional/Skilled Worker will move forward by three months, to September 1, 2019. EB-3 India Professional/Skilled Worker will remain January 1, 2009. EB-3 Professional/Skilled Worker Final Action date for all other countries will remain at May 1, 2020. 

The Final Action Dates for all EB-4 will remain September 1, 2018 for all countries. In addition, with respect to the Final Action date for the EB-5 Unreserved categories, China will remain at September 8, 2015 while India Final Action will remain at April 1, 2017. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will remain current for all countries. 

USCIS Expected to End Temporary Flexibility for Responding to Agency Requests After August 25, 2022

In response to business disruptions experienced as a result of the COVID-19 pandemic, on March 30, 2020, USCIS announced that the agency would provide a 60-day flexibility period for responding to certain agency requests including Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), etc. USCIS has periodically extended this flexibility over the last 2 years of the pandemic.

In their most recent announcement on March 30, 2022, the agency extended this deadline flexibility through August 25, 2022, and indicated that it anticipated this would be the final extension of these flexibilities such that the standard deadlines will apply to RFE issued after August 25th. As such, practitioners are advised to plan accordingly in terms of responding to impacted agency requests within the time frame mandated on the request for any requests with an issuance date after August 25, 2022.

UPDATE: on July 25, 2022 USCIS announced that it would, in fact, extend the agency’s flexibility for responding to certain agency quests through October 23, 2022

USCIS Announces Second FY2022 H-1B Cap Lottery Has Been Run

Today the United States Citizenship and Immigration Service (USCIS) announced that they did not receive a sufficient number of lottery submissions in the March 2021 lottery to meet the annual H-1B quota and, have thus, run a second H-1B lottery of the electronic registrations previously submitted. The filing window for newly selected petitions will be between August 2, 2021 and November 3, 2021.

Unfortunately at present there is a glitch in the myUSCIS website wherein, currently, only employers are able to log in and check on the registration status. The glitch is widespread (impacting all attorney accounts) and the immigration bar is already working with USCIS to get it resolved. In the meantime the company should be able to log into their myUSCIS to gain access to the newly selected cases and can forward those to immigration counsel for further action while USCIS resolves the website glitch.\

UPDATE: USCIS has resolved the attorney access issue and attorneys should not be able to log into their myUSCIS accounts to check on selected registrations.

USCIS Expands Premium Processing Service to E-3 Filings

USCIS announced today, February 24, 2021, that the agency has extended Premium Processing service to the E-3 visa classification.

Beginning immediately, petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting a change or extension of status to E-3 classification (reserved for nationals of Australia coming to the United States to perform services in a "specialty occupation.") will have the option to request Premium Processing service for their petition.

USCIS' Premium Processing service, which was previously unavailable for E-3 filings, allows petitioners to pay an additional filing fee of $2,500 to expedite the adjudication of the case to 15 calendar days, a significant improvement over the current adjudication time frame of 6 to 7.5 months.

USCIS Announces Implementation of H-1B Electronic Registration Process for Fiscal Year 2022 Cap Season

U.S. Citizenship and Immigration Services (USCIS) announced today that the initial registration period for the Fiscal Year (FY) 2022 H-1B cap will open at 12 (noon) Eastern on March 9, 2021 and run through 12 (noon) Eastern on March 25, 2021.

Under this registration process, employers or their authorized representatives will be required to complete a registration for each requested worker during the registration window, providing initial information about their company and each requested worker. Employers must also pay the associated $10 H-1B registration fee for each registration. The H-1B random selection process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

USCIS indicates the agency intends to notify account holders of the results of the selection process by March 31, 2021.

D&S will post additional guidance as it becomes available.

USCIS Advises of Extensive Receipting Delays at Certain Lockbox Facilities

The United States Citizenship and Immigration Service (USCIS) has advised stakeholders that due to numerous factors including COVID-19, staffing shortages, and an increase in the volume of filings, it is experiencing significant delays in intake of cases and issuance of receipt notices for filings made with USCIS lockbox facilities. In most cases these delays are expected to be between 4-6 weeks but but can vary across lockboxes and case types. The agency has further advised that certain cases, including employment-based adjustment of status applications and certain student work permits (EADs), may experience even more significant receipting delays.

USCIS further clarified that these receipting delays will not impact the receipt date of the case, which will in all instances be the date on which a correct and complete submission is actually received at the proper filing location.

D&S will continue to monitor the pace of lockbox receipts and provide relevant updates.

USCIS Announces Premium Processing Will Resume in a Phased Approach in June

Today, the United States Citizenship and Immigration Service (USCIS) announced that, starting next week, it will resume premium processing service for certain nonimmigrant and immigrant petitions. The schedule for resumption of premium processing service, which is subject to change, is as follows:

June 1, 2020 - Premium processing to resume for all pending and newly filed I-140 petitions

June 8, 2020 - Premium processing to resume for:

• Pending cap-exempt H-1B petitions filed before June 8, 2020 (including cap-exempt petitioners and petitions for beneficiaries already counted against the H-1B cap including pending extensions and change of employer requests).

• All other pending I-129 petitions for nonimmigrant classification that are eligible for premium processing (e.g., L-1, O-1, E-2, TN).

June 15, 2020 - Premium processing to resume for:

• Newly filed H-1B cap-exempt petitions, which can be filed with a concurrent request for premium processing where cap-exemption is based on either:

  • The Petitioner being a cap-exempt institution; OR

  • The beneficiary being cap-exempt based on a Conrad/IGA waiver under section 214(l) of the Immigration and Nationality Act (INA).

June 22, 2020 - Premium processing to resume for all other Form I-129 petitions, including:

• All FY2021 cap-subject petitions (including upgrades for pending cases and concurrent premium processing request for newly submitted petitions)

• All other newly filed I-129 petitions for nonimmigrant classification that are eligible for premium processing (e.g., L-1, O-1, E-2, TN and remaining H-1B petitions).

As noted above, USCIS has stated that all dates are subject to change.

D&S will continue to monitor the situation and provide updates as they become available.

USCIS Targets June 4, 2020 As Earliest Date for Reopening of In-Person Services

Today, USCIS announced that they are preparing to reopen in-person services on or after June 4, 2020. In doing so USCIS has pushed back its previous targeted reopening date of May 7th. These in-person services include application support center (ASC) biometrics, naturalization ceremonies, InfoPass appointments, and adjustment of status and naturalization interviews.

USCIS has noted that once normal operations have resumed it will automatically reschedule ASC appointments. Those with InfoPass an other field office appointments such as adjustment of status and naturalization interviews, must reschedule using the USCIS Contact Center once field offices are open to the public again.

USCIS Announces Implementation of H-1B Electronic Registration Process for Fiscal Year 2021 Cap Season

U.S. Citizenship and Immigration Services (USCIS) announced today that it will be implementing the registration process in the next H-1B lottery. Employers seeking to file H-1B cap-subject petitions for the fiscal year (FY) 2021 cap, including those eligible for the advanced degree exemption, must first electronically register with USCIS. USCIS will open an initial registration period from March 1 through March 20, 2020.

Under this new process, employers or their authorized representatives will be required to complete a registration for each requested worker during the registration window, providing initial information about their company and each requested worker. Employers must also pay the associated $10 H-1B registration fee for each registration. The H-1B random selection process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

USCIS indicates it will post step-by-step instructions on the registration process along with key dates and timelines as the initial registration period nears.

D&S will post additional guidance as it becomes available.

USCIS Completes the H-1B Cap Random Selection Process for FY2020

USCIS has confirmed that they have received a sufficient number of petitions projected as needed to reach the congressionally-mandated H-1B Cap (including the U.S. advanced degree exemption or “Master’s” cap) for Fiscal Year 2020. USCIS previously announced on April 5 that it had received enough petitions to reach the congressionally mandated H-1B regular cap of 65,000.

USCIS received 201,011 H-1B petitions during the filing period, which began on April 1, 2019.

USCIS will begin to reject and return filing fees for all unselected cap-subject petitions (with the exception of fees for cases rejected as prohibited multiple filings).