Business Immigration in a Minute by Honigman LLP

  • The Department of State (“DOS”) recently released the August 2023 Visa Bulletin. In addition to the final action dates and dates for filing charts for employment-based immigrant visa and adjustment of status cases, it contains notes on the diversity lottery, retrogression for EB-1 for India, Mexico, the Philippines and all other countries, as well as retrogression for EB-3 for Mexico, the Philippines, and all other countries. Notably, EB-1 final action dates for India retrogressed by over ten years. DOS explained that this is because EB-1 India has reached its FY 2023 limit and thus no more visas can be issued in this fiscal year for this preference category. However, DOS notes that it is likely that EB-1 India final action dates will advance to at least February 1, 2022 in the October 2023 Visa Bulletin. However, this date is dependent on the demand for EB-1 visas by Indian applicants, as well as the FY 2024 annual limit on employment-based preference visas. EB-3 final action dates for Mexico, the Philippines, and all other countries retrogressed by nearly two years due to higher than expected demand in this preference category. For August 2023, employment-based applicants must use the final action dates chart for adjustment of status applications.

  • This past week, the Department of Homeland Security added eight new qualifying STEM fields to the STEM Designated Degree Program List. The list is used to determine F-1 students’ eligibility for a 24-month extension of their post-completion Optional Practical Training status based on the attainment of a science, technology, engineering, or mathematics degree. The following degree fields have been added to the list: Composite Materials Technology/Technician; Demography and Population Studies; Developmental and Adolescent Psychology; Geospatial Intelligence; Institutional Research; Landscape Architecture; Linguistics and Computer Science; and Mechatronics, Robotics, and Automation Engineering Technology/Technician.

  • The Office of Foreign Labor Certification published an updated Appendix A to the Preamble–Education and Training Categories by O*NET–SOC Occupations for the 2023-2024 wage year. Appendix A is a list of professional occupations that serves as a guide for employers to distinguish between professional and non-professional occupations in order to comply with the professional recruitment requirements of the PERM program.

  • The American Immigration Lawyers Association recently met with U.S. Customs and Border Protection’s Office of Field Operations (“CBP OFO”) to discuss topics concerning visa adjudication at U.S. ports of entry. Notably, the CBP OFO confirmed that Mexican nationals with a valid TN-2 visa can add or change employers by presenting a valid visa at a U.S. port of entry, rather than being required to file a visa application at a U.S. consulate.

  • U.S. Citizenship and Immigration Services (“USCIS”) issued policy guidance to address procedures relating to requests to reschedule biometric services appointments for good cause. The guidance explains that requests to reschedule a biometric services appointment must be made through a myUSCIS online account or to the USCIS Contact Center, clarifies how USCIS evaluates a timely request to reschedule a biometric services appointment for good cause, explains that USCIS may consider an untimely request to reschedule a biometric services appointment, and describes the effect of failing to appear for an appointment.

  • In ITServe v. U.S. Dep’t of Homeland Security, the D.C. Circuit held that USCIS has the authority to require new or amended petitions corresponding to changes in the place of employment that necessitate the filing of a new Labor Condition Application (“LCA”). The court found that USCIS possesses this authority because it may consider LCA-related issues in approving, disapproving, or revoking H-1B petitions.

  • The Department of Labor (“DOL”) updated its processing times for permanent labor certification (“PERM”) applications and prevailing wage requests. As of June 30, 2023, the DOL is adjudicating PERM applications filed in or before September 2022 and processing prevailing wage requests filed in or before January 2023.

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