May 2023 U.S. Immigration Alert

Seyfarth Synopsis: The below summarizes recent legal updates that impact U.S. immigration:

1.  USCIS Releases FY2024 H-1B Initial Registration Period Updates

On April 28, USCIS announced that it received 780,884 registrations for the FY2024 H-1B initial registration, resulting in an approximate 14% chance of selection, a significantly lower selection rate than in previous years.

Cap Fiscal Year	Total Registrations	Eligible Registrations*	Eligible Registrations for Beneficiaries with No Other Eligible Registrations	Eligible Registrations for Beneficiaries with Multiple Eligible Registrations	Selections**
2021	274,237	269,424	241,299	28,125	124,415
2022	308,613	301,447	211,304	90,143	131,924
2023	483,927	474,421	309,241	165,180	127,600
2024	780,884	758,994	350,103	408,891	110,791

USCIS noted that the significant increase in the number of registration has raised serious concerns that some companies may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary.

As a part of the registration process, each prospective employer, or petitioner, is required to sign an attestation, under penalty of perjury, that:

1. All of the information contained in the registration submission is complete, true, and correct;
2. The registration(s) reflect a legitimate job offer; and
3. The registrant, or the organization on whose behalf the registration(s) is being submitted, has not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

If USCIS finds that that the registrant violated the attestation, USCIS will render the petitioner ineligible to file a petition based on that registration.  USCIS also has discretion to deny or revoke a petition based on a registration that is found to have a false attestation.

Notably, more than 52% of the registrations received this year were from beneficiaries who had two or more registrations submitted on their behalf.  Based on evidence from both FY2023 and FY2024, USCIS stated that it has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating criminal law referrals.

USCIS indicated that it is working on an upcoming H-1B modernization rule that will propose, among other things, changes to the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system.

2. Department of Labor (DOL) Held Webinar to Explain Upcoming Changes to Form ETA 9089 (PERM) Applications

On April 19, 2023 and April 20, 2023, the DOL hosted webinars explaining the upcoming changes to Form ETA 9089 (9089), also known as the PERM application.  As of April 24, 2023, the new 9089 is available in the Foreign Labor Application Gateway (FLAG) system so that filers can begin creating applications on the new 9089.  This new version of the 9089 will be required starting May 16, 2023. The Office of Foreign Labor Certification (OFLC) will no longer accept new applications submitted via the legacy PERM system after May 15, 2023 at 6:59 pm EST.

3. Office of Foreign Labor Certification (OFLC) Issues Updated Guidance Regarding Form ETA 9089, Field H.10-B

On April 14, 2023, the Department of Labor (DOL) announced that it will accept and process requests for reconsideration for denials based solely on Field H.10-B of Form 9089, “Acceptable Alternate Occupation Title” when this field did not contain a specific job title (i.e., “see H-14” or when the employer listed a specific minimum requirement without a job title).  OFLC indicated that it evaluated the denials issued for this reason and determined that, while they are appropriate, it has been inconsistent with denials for this reason, which resulted in confusion for filers.  As a result, OFLC has stopped issuing denials for this reason on pending applications and will not deny cases for this reason for any application submitted on or before May 30, 2023.  OFLC will also overturn denials based solely on this issue if the employer submits a request for reconsideration.  OFLC will identify applications that were denied for this reason and encourages those who have not yet submitted a request for reconsideration not to do so. OFLC indicated that it will prioritize processing for reconsideration requests where the denial was based solely on this issue.

In addition, DOL clarified that a job title should be used when completing this field going forward. The new ETA-9089 in FLAG (see above), however, does not have the same question as the current H.10-B. Instead, the new 9089 will rely on the data entered on Form 9141, Application for Prevailing Wage Determination where the question reads “Indicate the Occupation Required.”  To date, DOL has not clarified whether it will require a job title for this question on Form 9141.

4. Movement in the May 2023 Visa Bulletin

In May 2023, EB-2 Final Action will retrogress by 4.5 months to February 15, 2022.  The EB-3 China Professional/Skilled Worker category will advance by 5 months to April 1, 2019 (Final Action) and by 4 months to June 1, 2019 (Dates for Filing).

In May 2023, filers must use the Final Action Dates in the DOS May 2023 Visa Bulletin for employment-based preference filings and Dates for Filing for family-sponsored filings.

The State Department anticipates further retrogression for EB-1 India and China in the coming months, and retrogression for EB-2 and EB-5 India as soon as June.

5.  U.S. Department of State (DOS) Announces Visa Fees Increase for Certain Visa Categories

On March 28, 2023, DOS published a final rule regarding increases to certain visa application  processing fees and the Border Crossing Card (BCC) for Mexican citizens age 15 and over.  The fee increases take effect on May 30, 2023. The changes include the following:

• The application processing fee for non-petition based nonimmigrant visa applications (except E category) will be raised from $160 to $185 (15.6% increase).
• The application processing fee for H, L, O, P, Q, and R categories will be raised from $190 to $205 (7.9% increase).
• The processing fee for the BCCs for Mexican citizens age 15 and over will be raised from $160 to $185 (15.6 % increase).
• The fee for E category visa applications will be raised from $205 to $315 (53.7% increase).

6. USCIS Extends Suspension of Biometrics Submission for Certain I-539 Applicants

USCIS announced an extension of the suspension of the biometrics submission requirement for applicants requesting an extension of stay in or change of status to H-4, L-2, or E nonimmigrant status.  The previous suspension was scheduled to end on May 17, 2023.  It has now been extended through September 30, 2023.  USCIS still retains the discretion to request biometrics on a case-by-case basis, and applicants who receive a biometrics appointment notice should plan to attend.

7. DOS Publishes a Notice Regarding Ukrainian J-1 Exchange Visitors

On April 5, 2023, DOS published a notice in the Federal Register describing the details of Special Student Relief (SSR) arrangements for eligible Ukrainian J-1 exchange visitors in the College and University Student category, effective until October 23, 2023.

8. United States Citizenship and Immigration Service (USCIS) Announces Updated Policy Guidance on Mailing Address Procedures for Applicants for Survivor-Based Immigration Relief

On April 11, 2023, USCIS announced that it has updated guidance regarding information disclosure related to Violence Against Women Act (VAWA) self-petitioners as well as T and U visa applicants.  Previously, USCIS had not published guidance in the Policy Manual specific to safe mailing address procedures in these cases, and policies were largely based upon regulations and local office practices.

Under the new guidance, USCIS will not disclose “any information which relates to a protected person,” with limited exceptions.  This includes information that USCIS may have in its records about the protected person that are not directly related to their applications for VAWA, T, or U benefits.  It also provides clear guidance on mailing address procedures for protected persons represented by an attorney or representative, protected persons without an attorney, and protected persons with multiple pending forms.

The updated guidance goes into effect on July 11, 2023.

9. USCIS Clarifies How U.S. Citizenship and Naturalization Provisions Apply to Adopted Children

On April 21, 2023, USCIS issued updated guidance clarifying:

• The requirements for adopted children to meet the definition of a child for citizenship and naturalization purposes;
• Eligibility for US citizenship for adopted children (both those living within and outside of the US) and how to obtain a Certificate of Citizenship for adopted children who reside in the US; and
• Procedure for the acquisition of citizenship and naturalization when an adoption is disrupted or dissolved.

The guidance did not change the requirements, but merely updated the guidance in an effort to make them clearer to adoptive families and adoptees.

10. The Department of Health and Human Services (HHS) Proposes Rule Amending the Definition of “Lawful Presence” for Affordable Care Act Coverage to Include DACA Recipients

On April 24, 2023, HHS released a notice in the Federal Register that would expand access to health care by reducing barriers for Deferred Action for Childhood Arrivals (DACA) recipients. The proposed rule would amend the definition of “lawfully present” to include DACA recipients for the purposes of Medicaid and Children’s Health Insurance Program (CHIP).  To qualify for coverage, DACA recipients would still need to meet all other eligibility requirements for coverage in the State. The proposed effective date for this rule is November 1, 2023.  This proposed rule is currently in the commenting period, which will end on June 23, 2023.