USCIS Updates Policy Guidance on CSPA ‘Sought to Acquire’ Requirement
U.S. Citizenship and Immigration Services (USCIS) announced on August 24, 2023, that it is updating the USCIS Policy Manual to clarify how it will apply the extraordinary circumstances exception to the “sought to acquire” requirement under the Child Status Protection Act (CSPA) in light of a February 14, 2023, policy change updating when an immigrant visa becomes available for the purpose of calculating an applicant’s CSPA age.
USCIS explained that the CSPA protects certain beneficiaries from losing their eligibility for immigrant visas and adjustment of status because they age during the immigration process and no longer qualify as a child for immigration purposes. To benefit from the CSPA, noncitizens must seek to acquire lawful permanent resident status within 1 year of when an immigrant visa becomes available, USCIS noted. The update:
- Explains that USCIS considers the February 14 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the “sought to acquire” requirement;
- Clarifies that the agency may excuse an applicant’s failure to meet the requirement if they did not apply to adjust status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and
- Clarifies that the agency considers applicants to have met the requirement if their application to adjust their status was pending on February 14 and they applied to adjust status within one year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.
USCIS explained that under the policy guidance in effect before February 14, 2023, some noncitizens may not have applied to adjust status because a visa was not available to calculate their CSPA age under the prior policy or their CSPA age would have been calculated to be over 21 years old. If these noncitizens apply to adjust their status under the new policy issued on February 14, USCIS said, they may not be able to meet the one-year “sought to acquire” requirement. “However, noncitizens who do not meet this requirement may still benefit from the CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances,” USCIS noted.
USCIS said it welcomes feedback on this guidance and will consider any comments received in future updates. Comments can be submitted via the Policy Manual Feedback page.
- USCIS alert (Aug. 24, 2023).
OFLC Issues Round 4 FAQs for H-1B, H-1B1, and E-3 Programs; Rescinds COVID-19 FAQs
The Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued Round 4 of its frequently asked questions (FAQs) related to the Labor Condition Application (LCA/ETA Form 9035/9035E) for the H-1B, H-1B1 and E-3 visa programs.
Also, as of August 24, 2023, OFLC has rescinded in full all COVID-19 FAQs, which includes Round 1 (published March 20, 2020); Round 2 (published April 1, 2020); Round 3 (published April 9, 2020); and Round 4 (published June 3, 2020). The processing centers have resumed normal operations. All other FAQs not related to COVID-19 remain in full effect, OFLC said.
- OFLC FAQ on H-1B, H-1B1, and E-3 Programs (Aug. 24, 2023).
- OFLC Rescinds All FAQs Regarding COVID-19 (scroll to Aug. 24, 2023).
USCIS Confirms Evidentiary Requirements for Physician National Interest Waivers
U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance, effective August 16, 2023, to confirm the evidentiary requirements for physicians seeking a national interest waiver of the job offer requirement based on work in an underserved area or at a U.S. Department of Veterans Affairs facility.
The updated guidance confirms that for physician national interest waiver petitions, the required contracts and public health letters must be dated within six months immediately before the petition filing date only for work that the physician has not yet started. The six-month requirement does not apply to work that the physician has already started or has completed before the petition filing date, USCIS said.
- USCIS Policy Alert (Aug. 16, 2023).
USCIS Launches New Online Appointment Request Form
On August 21, 2023, U.S. Citizenship and Immigration Services (USCIS) announced a new online form for individuals, attorneys, and accredited representatives to request an in-person appointment at their local field office without having to call the USCIS Contact Center.
The online appointment request form allows individuals or legal representatives to request an in-person appointment at a field office, for ADIT stamps, Emergency Advance Parole, Immigration Judge Grants, and more, USCIS said. The USCIS Contact Center will review submitted forms and the availability of in-person appointments at a specific field office. The agency said that individuals “may request a specific date and time for an in-person appointment, but USCIS cannot guarantee that the requested appointment date will be scheduled. USCIS will confirm and schedule the individual for an available in-person appointment date and time.”
- USCIS alert (Aug. 21, 2023).
OFLC Issues FAQ for Employers on Effects of Hawaii Wildfires
The Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued frequently asked questions (FAQs) for employers and their authorized attorneys or agents related to the effects of the Hawaii wildfires, including extensions and methods of communication.
Among other things, the FAQs note that OFLC will continue to contact employers and their authorized attorneys or agents primarily using email and—where email addresses are not available—will use U.S. mail, if available. If an employer is impacted by internet and power outages, employers may contact OFLC using the phone numbers listed in the FAQs. For each of OFLC’s programs, the agency said the most effective means of communicating with OFLC is through the established Foreign Labor Application Gateway (FLAG) or the PERM Case Management System. If an employer or its authorized attorney or agent is unable to communicate with OFLC through FLAG or the PERM system, alternative methods of contacting OFLC regarding each of OFLC’s programs are provided in the FAQs.
OFLC said it will grant extensions of time and deadlines for affected employers and/or their authorized attorneys or agents, including for delays caused by the wildfires in Hawaii and those resulting from businesses preparing to adjust their normal operations due to the wildfires in Hawaii. OFLC said it may extend deadline flexibility to employers and/or their authorized attorneys or agents who are outside a Federal Emergency Management Agency-designated “major disaster” area but are impacted in such a way as to affect their ability to meet OFLC deadlines. OFLC said it will evaluate such requests on a case-by-case basis.
- OFLC FAQ re Hawaii Wildfires (Aug. 18, 2023).
Ukraine TPS Extended, Redesignated; Special Student Relief Announced
The Department of Homeland Security (DHS) is extending and redesignating Ukraine for Temporary Protected Status (TPS). The extension allows approximately 26,000 current beneficiaries to retain TPS through April 19, 2025, if they continue to meet TPS eligibility requirements. An estimated 166,700 additional individuals may be eligible for TPS under the redesignation of Ukraine. This population includes nationals of Ukraine (and individuals without nationality who last habitually resided in Ukraine) in the United States in nonimmigrant status or without lawful immigration status, DHS said. DHS also announced special student relief for Ukraine.
The extension is for 18 months, beginning on October 20, 2023, and ending on April 19, 2025. Existing TPS beneficiaries who wish to extend their status through April 19, 2025, must re-register during the 60-day re-registration period (August 21, 2023, through October 20, 2023). Recognizing that not all re-registrants may receive a new Employment Authorization Document (EAD) before their current EAD expires, U.S. Citizenship and Immigration Services (USCIS) is automatically extending previously issued Ukraine TPS-related EADs through October 19, 2024.
The redesignation of Ukraine allows additional Ukraine nationals (and individuals having no nationality who last habitually resided in Ukraine) who have been continuously residing in the United States since August 16, 2023, to apply for TPS for the first time during the initial registration period (August 21, 2023, through April 19, 2025).
The Federal Register notice explains the eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register and renew their employment authorization documents (EADs), and for new applicants to submit an initial application under the redesignation and apply for an EAD.
Also, effective October 20, 2023, through April 19, 2025, DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Ukraine, regardless of country of birth (or individuals having no nationality who last habitually resided in Ukraine), and who are experiencing severe economic hardship as a result of the current war in Ukraine. Such students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F–1 nonimmigrant student status. DHS said it will deem an F-1 nonimmigrant student granted such employment authorization to be engaged in a “full course of study” for the duration of the employment authorization if the nonimmigrant student satisfies the minimum course load requirement described in the notice.
- Federal Register TPS notice (advance copy; to be published August 21, 2023).
- Federal Register special student relief notice (advance copy; to be published August 21, 2023).
- DHS news release (Aug. 18, 2023).
F-1 EADs May Take One to Two Weeks to Process After Adjudication, CIS Ombudsman Says
Earlier this year, U.S. Citizenship and Immigration Services (USCIS) rolled out premium processing for F-1 students seeking optional practical training (OPT) or science, technology, engineering, and mathematics (STEM) OPT extensions. As students began to file premium processing requests, stakeholders informed the Citizenship and Immigration Services (CIS) Ombudsman that they were experiencing delays in receiving their Employment Authorization Documents (EADs). The CIS Ombudsman is reminding stakeholders that premium processing times are separate from work permit production timelines.
Specifically, the 30-day premium processing timeframe does not include the time it takes to produce an EAD. When an F-1 student files Form I-907, Request for Premium Processing Service, for a work authorization application (Form I-765), the EAD may take one to two weeks to be produced after U.S. Citizenship and Immigration Services (USCIS) approves the Form I-765 application. USCIS will then mail the EAD via U.S. Postal Service “Informed Delivery.” Wait times may vary depending on USPS delivery times.
- CIS Ombudsman email broadcast (Aug. 15, 2023).
September Visa Bulletin Includes DV-2024 Results, Availability of Employment-Based Visas, Determination of Numerical Limit on Immigrants
The Department of State’s (DOS) Visa Bulletin for September includes Diversity Visa 2024 (DV-2024) lottery results, the availability of employment-based visas during September, and the determination of the numerical limit on immigrants for fiscal year (FY) 2023.
Diversity Visa Lottery Results
The bulletin notes that the Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the selectees who are eligible to participate in the DV-2024 program. Entrants registered for the DV-2024 program were selected at random from 22,185,619 qualified entries. The selectee numbers for each country are listed in the bulletin.
During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or two years of work experience in an occupation that requires at least two years of training or experience within the past five years. “Those selected will need to act on their immigrant visa applications quickly,” the bulletin advises. Approximately 143,000 prospective applicants (selectees and their spouses and children) have been registered. Once the total 55,000 visa numbers have been used, the program for fiscal year 2024 will end. Selectees who do not receive visas or status by September 30, 2024, will derive no further benefit from their DV-2024 registration, the bulletin says.
DOS said that the dates for the DV-2025 program registration period will be widely publicized in the coming months.
Availability of Employment-Based Visas
The bulletin explains that employment-based number use by both U.S. Citizenship and Immigration Services (USCIS) and DOS has been steady during this fiscal year. As a result, most employment-based preference category limits and/or the overall employment-based preference limit for FY 2023 are expected to be reached during September. If the annual limit is reached, the preference category will immediately become unavailable.
Determination of Numerical Limit on Immigrants
DOS has determined that the employment preference numerical limit for FY 2023 is 197,091. For FY 2023, the per-country limit is 29,616. The dependent area annual limit is 2%, or 8,462.
- Visa Bulletin for September 2023, Dept. of State.
USCIS Reminds Employers About New I-9 Alternative Procedure
U.S. Citizenship and Immigration Services (USCIS) reminded employers that the new version of Form I-9, Employment Eligibility Verification, is now available for use. The new version incorporates an alternative procedure for E-Verify employers to remotely examine employee documents. Other changes include shortening the form to one page and reducing the instructions to eight pages.
Employers can use the form immediately, USCIS said. The Form I-9 dated “10/19/2019” may continue to be used through October 31, 2023. The version date can be found in the lower-left corner of the form. Beginning November 1, 2023, only the new Form I-9 dated “08/01/23” may be used.
- USCIS alert (Aug. 1, 2023).
USCIS Changes Receipt Process for L-1 Nonimmigrant Intracompany Transferees Under Previously Approved Blanket L Petition
U.S. Citizenship and Immigration Services (USCIS) announced changes to how the agency issues receipts for L-1 nonimmigrant intracompany transferees (executives, managers, or specialized knowledge professionals) under a previously approved blanket L petition.
USCIS said that when filing Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, together with Form I-129, Petition for a Nonimmigrant Worker, the petitioner will now receive two notices: the receipt notice and the approval notice (if approved). Petitioners will no longer receive a stamped and signed Form I-129S in conjunction with the Form I-129 approval. Instead, the petitioner will receive a separate approval notice for the Form I-129S, which serves as the endorsement.
- USCIS alert, Aug. 3, 2023. https://www.uscis.gov/newsroom/alerts/uscis-updates-receipts-process-for-form-i-129s
Klasko Immigration Law Partners is pleased to announce that Ron Klasko, Bill Stock, and Elise Fialkowski have been selected for the 30th edition of The Best Lawyers in America® in immigration law. Natalia Gouz, Michele Madera, Maria Mihaylova, Anu Nair, and Karuna Simbeck have been recognized in the 2024 Edition of Best Lawyers: Ones to Watch®. Congratulations to you all!
RECENT SPEAKING ENGAGEMENTS
On August 19, Anu spoke at this Golden Gate Global Webinar event on current trends in the EB-5 program.
H. Ronald Klasko | Alison Li
On August 22, Ron and Alison spoke in this EB5AN event on Calculating EB-5 Job Creation With Bridge Financing: Why Advanced Construction & Significant Expenditures Lower Green Card Risk.
UPCOMING SPEAKING ENGAGEMENTS
Elise A. Fialkowski
On September 28, Elise Fialkowski will be presenting to the University of Penn in a PPA FNC and ISSS joint presentation entitled Transition to a Green Card Workshop.
H. Ronald Klasko | William A. Stock | Elise A. Fialkowski
Ron Klasko, Bill Stock, and Elise Fialkowski have been selected for the 30th edition of The Best Lawyers in America® in immigration law.
Natalia Gouz | Michele G. Madera | Maria M. Mihaylova | Anu Nair | Karuna C. Simbeck
Natalia Gouz, Michele Madera, Maria Mihaylova, Anu Nair, and Karuna Simbeck have been recognized in the 2024 Edition of Best Lawyers: Ones to Watch®.
ICYMI: RECENT BLOG POSTS AND ALERTS
Canada’s Tech Talent Strategy: A Creative Option For U.S. Employers?
In this blog, Sarah Holler provides an overview of Canada’s Tech Talent Strategy for highly skilled workers and how Klasko can help.
How To Evaluate Immigration Risk For EB-5 Projects: Impact Of I-956f Approval
In this blog, Klasko partner Ron Klasko and EB5AN partner Sam Silverman unpack what Form I-956F is, the impact and risk of I-956F, and evaluate the risk of EB-5 investment projects.
We Should All Just Go To Canada!
In this article, Maria Mihaylova compares the U.S. visa program to Canada’s Express Entry program and informs of recent trends of global talent and U.S. employers considering migration to Canada
Last month, Klasko celebrated the end of summer with a taco lunch social hour. See the pictures below!
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.