December 4, 2023

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U.S. Immigration Updates-Week of February 21, 2022

5 min read

Eligible Applicants Urged to Switch Employment-Based Categories

U.S. Citizenship and Immigration Services (USCIS) is encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status applications to the first (priority workers) or second (noncitizens in professions with advanced degrees or with exceptional ability) employment-based preference categories. USCIS said this is because of the availability of an exceptionally high number of employment-based immigrant visas in these green card categories during fiscal year (FY) 2022.

USCIS explained that the overall employment-based annual limit for fiscal year 2022 is approximately twice as high as usual because it includes all unused family-sponsored visa numbers from FY 2021, which was approximately 140,000.

In addition, USCIS noted, under the relevant statute, any visas not required in the fifth employment-based preference category are made available in the first employment-based preference category, and any visas not required in the first employment-based preference category are made available in the second employment-based preference category.

These visas cannot be made available to applicants in the third employment-based preference category because, given the significant number of noncitizens awaiting visas in the second employment-based preference category, these visas must be used for the second preference category., USCIS said.

Source: ABIL Newsletter, February 20, 2022

  • USCIS alert, Feb. 18, 2022,
  • Green Card for Employment-Based Immigrants (scroll down to “Transfer of Underlying Basis”),

March 2022 Visa Bulletin Includes Updates on Employment-Based Expirations and Retrogressions

The Department of State’s Visa Bulletin for March 2022 includes the following updates:

  • Final action dates for the employment-based fifth preference I5 and R5 regional center visa categories are “Unavailable” for March. If legislative action extends this category for March, the final action dates would immediately become “Current” for March for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015, final action date.
  • Final action dates have retrogressed for the employment-based fourth and Certain Religious Workers (SR) categories for El Salvador, Guatemala, and Honduras to hold worldwide number use within the maximum allowed under the FY 2022 annual limits.
  • The non-minister special immigrant program expired on February 18, 2022. No SR visas may be issued overseas or final action taken on adjustment of status cases in that category.
  • The SR category is “Unavailable” for all countries for March. If legislative action extends the category, it will become “Current” effective immediately for all countries except El Salvador, Guatemala, and Honduras, which are subject to a May 1, 2017, final action date, and Mexico, which is subject to an April 1, 2020, final action date.

Source: ABIL Newsletter, February 20, 2022

Details:

  • Visa Bulletin for March 2022, Dept. of State,

Department of Homeland Security Proposes New Public Change Rule

The Department of Homeland Security (DHS) announced on February 17, 2022, that it will issue a proposed rule soon that would regulate how DHS applies the public charge ground of inadmissibility. The proposed rule would provide “fair and humane treatment” for noncitizens requesting admission to the United States or applying for lawful permanent residence from within the United States, DHS said. According to reports, the proposed rule is expected to be published on February 24, 2022.

DHS Secretary Alejandro N. Mayorkas said, “Under this proposed rule, we will return to the historical understanding of the term ‘public charge’ and individuals will not be penalized for choosing to access the health benefits and other supplemental government services available to them.”

Under the proposed rule, DHS proposes to define “likely at any time to become a public charge” as “likely to become primarily dependent on the government for subsistence.” Consistent with longstanding agency practice, DHS proposes to consider the following public benefits when making a public charge inadmissibility determination:

  • Supplemental Security Income (SSI);
  • Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program;
  • State, Tribal, territorial, and local cash assistance for income maintenance; and
  • Long-term institutionalization at government expense.

DHS proposes that it will not consider noncash benefits such as food and nutrition assistance programs, including the Supplemental Nutrition Assistance Program (SNAP), the Children’s Health Insurance Program, most Medicaid benefits (except for long-term institutionalization at government expense), housing benefits, and transportation vouchers. DHS would also not consider disaster assistance received under the Stafford Act; pandemic assistance; benefits received via a tax credit or deduction; or Social Security, government pensions, or other earned benefits.

By law, many categories of noncitizens are exempt from the public charge ground of inadmissibility and would not be subject to the proposed rule, DHS noted. Some exempt categories include refugees, asylees, noncitizens applying for or re-registering for temporary protected status (TPS), special immigration juveniles, T and U nonimmigrants, and self-petitioners under the Violence Against Women Act (VAWA).

Source: ABIL Newsletter, February 20, 2022

Details:

  • Advance copy of public charge proposed rule, Feb. 17, 2022,
  • “Rulemaking on Public Charge Determinations,” NAFSA: Association of International Educators, Feb. 18, 2022,

USCIS H-1B Amendment Application Rule Is Upheld

A D.C. federal judge refused to overturn a USCIS ruling that employers must file amended H-1B visa petitions when workers move within the U.S., refuting claims that the decision was rule-making disguised as adjudication.

ITServe Alliance Inc., an information technology industry group, had challenged a USCIS appellate body’s finding in Matter of Simeio Solutions LLC in 2015 that should an H-1B petitioner move within the U.S., that decision amounts to a “material change” requiring employers to refile amended specialty occupation visa petitions for the worker.

The court refuted ITServe’s arguments that even after Simeio withdrew the H-1B petition at issue, the agency ruled on the withdrawn petition to leapfrog federal rulemaking procedures. At the same time, he noted that the ruling expanded USCIS’ authority without going through the “hassle” of rulemaking procedures.

“Perhaps it would be better for USCIS to announce such an important change through a regulation,” Judge McFadden said. “But as the [Administrative Procedure Act] binds agencies, so precedent binds this court.”

In dispute is a decision by USCIS’ Administrative Appeals Office to reject an H-1B petition when later filings showed a different location of employment than an earlier application with the Department of Labor. The ruling was followed up with a USCIS guidance, explaining that the ruling applies to most other H-1B petitioners moving forward.

ITServe filed suit in December 2020, on behalf of its member companies, which it says often require employees to change locations and are now subject to additional paperwork and filing fees each time a foreign employee changes locations.

The industry group had blasted the agency’s decision as “not an adjudication at all but a procedurally defective legislative rule” in a summary judgment bid before the court, saying the fact that Simeio withdrew the visa petition long before the decision makes this evident.

But the record is sparse, and Judge McFadden ruled that it’s not clear when USCIS received the withdrawal request. He added that ITServe could have done more to discredit USCIS than sharing a short acknowledgment of receipt from the agency.

He clarified in the Thursday ruling that USCIS can issue binding precedential decisions, adding that ITServe’s argument otherwise seemed to misunderstand Simeio’s effects.

Judge McFadden rejected additional arguments that the ruling was an impermissible attempt by USCIS to regulate H-1B employment conditions and that Simeio was never intended to be a precedential opinion.

Source: Grace Dixon, Law360:

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