IMMIGRATION UPDATE: MARCH 2023

The Employment and Training Administration of the DOL published the Final Rule revising the methodology of determining the Adverse Effect Wage Rate (AEWR) for H-2A non-range occupations. The rule became effective on March 30, 2023. More information is available here.

The DOL also published an FAQ on the Final Rule that can be accessed here.

USCIS issued a notice of EB-5 Regional Center Integrity Fund Fee where USCIS will collect a fee of $20,000 or $10,000 from each designated regional center to finance the EB-5 Integrity Fund. In accordance with the EB-5 Reform and Integrity Act of 2022 signed by President Biden on March 15, 2022, the fund will be used to conduct investigation for fraud or other crimes, conduct audits and site-visits amongst others. More information is available here.  

On March 31, 2023 USCIS issued a policy alert for revising the guidance relating to selection of gender on the USCIS forms in the USCIS Policy Manual. According to the alert, benefit requestors may select their gender or change prior gender selection on the USCIS forms without providing supporting documents to match the gender listed in their identity documents. However, the alert also notes that the guidance in the Policy Manual does not apply to Form N-565, Application for Replacement of Naturalization/Citizenship Document.

In its policy guidance issued on March 3, 2023, USCIS clarifies how it will evaluate the evidence to determine eligibility for O-1B nonimmigrants of extraordinary ability in the art and extraordinary achievement in the motion picture or television industry. This guidance is contained in Volume 2 of the Policy Manual and effective as of March 3, 2023. The guidance issued adds a chart in the appendix that describes examples of evidence that may satisfy the O-1B criteria, which will assist petitioners in submitting appropriate evidence to establish eligibility for O-1B visa classification.

In an effort to streamline the immigration experience for international students and to improve operational efficiencies and increase access to the immigration systems for benefit seekers, USCIS announced on March 3, 2023 that it will expand premium processing to F-1 student seeking Optional Practical Training (OPT) and science, technology, engineering and mathematics (STEM) OPT extensions.

Phase 1 is effective March 6, 2023 and USCIS will accept premium processing applications for F-1 students with pending Form I-765 under the following categories:

• (c)(3)(A) – Pre-Completion OPT; 
• (c)(3)(B) – Post-Completion OPT; and 
• (c)(3)(C) – 24-Month Extension of OPT for STEM students. 

Phase 2 is effective April 3, 2023, and USCIS will accept premium processing applications for the above categories concurrently with the I-765 application.

USCIS noted online filing of Form I-907, request for premium processing is available, although paper versions will be accepted.

On March 7, 2023, USCIS issued a policy alert on mobile biometrics collection as well as remote collection for domestic benefit seekers. The guidance provides circumstances where USCIS may offer mobile biometrics collection and when USCIS may employ other agencies that are closer to the address of the requestor for collection of biometrics. This guidance is expected to reduce barriers for benefit seekers that are unable to attend the scheduled appointments at Application Support Centers to submit biometrics.

In its news release on March 15, 2023, USCIS issued its policy guidance to address the analysis of an employer’s ability to pay the proffered wages for employment based immigrant petitions in certain first, second and third preference visa categories. According to the guidance, employers should demonstrate their continuing ability to pay the proffered wages as of the priority date of the immigrant petition. The update also adds an appendix containing an overview of common business forms or structures including information on how different entities are formed, their characteristics and basic tax terms.

On March 15, 2023, USCIS announced that it will be removing the biometrics requirements for investors/petitioners filing Form I-526E, Immigrant Petition by Regional Centers Investor. Consequently, the $85.00 fee requirement has also been removed. USCIS has noted that it will refund the biometrics fee of 980 petitioners that submitted the I-526E petition since 2022 when the previous edition (6/1/22) of the form was released. More information is available here.  

USCIS announced on March 27, 2023, that it had received enough electronic registration during the initial H-1B registration period to reach the FY 2024 cap that included advanced degree exemption. Selection notices were sent to employers and their representatives for those selected candidates who are eligible to file the H-1B CAP subject petition. The selected H-1B petitions can be submitted within ninety (90) days beginning April 1, 2023.

On March 16, 2023, USCIS announced that Lawful Permanent Residents (LPR) may no longer be required to physically visit the USCIS field office to receive an ADIT stamp. Instead, they may receive temporary evidence of their LPR status by mail. This process will require LPRs to contact the USCIS Contact Center whereby an officer will verify identity of the LPR and will reduce the burden on LPRs and increase availability of field office resources.

On March 23, 2023, USCIS announced that COVID- related flexibilities for responding to legal deadlines, that have been in effect since March 2020 will be ending on March 23, 2023. Flexibilities regarding reproduced signatures became a policy on July 25, 2022 and hence this announcement does not affect reproduced signatures flexibilities.

Effective May 30, 2023, the DOS will increase certain consular processing fees. The final rule increases several nonimmigrant visa (NIV) fees and are noted below:

• Non-petition based NIVs (except E category) – from $160 to $185.
• E category NIVs – from $205 to $315.
• H, L, O, P, Q, and R category – from $190 to $205.
• Border Crossing Cards for Mexican citizens aged 15 and over – from $160 to $185.

On March 31, 2023, USCIS issued policy guidance permanently removing the requirement that civil surgeon’s signature on the Medical Examination Report (Form I-693) be dated no more than sixty (60) days before the benefit seeker files an immigration benefit. This requirement was subject to temporary waiver since December 9, 2021 and has been made a permanent policy. The 60-day rule was issued initially to enhance operational efficiency. However, USCIS has concluded that these efficiencies have not been realized. The medical exam reports will continue to be valid for 2 years after the civil surgeon signed the Form I-693.