USCIS Adopts DOL’s Definition of “Science or Art” for Schedule A PERM Filings

USCIS issued new policy guidance to adopt the Department of Labor’s definition of “science or art” for certain PERM cases that bypass DOL review.

As background, while many EB-2 and EB-3 petitioners must submit a PERM to the DOL for certification before filing a Form I-140, Immigrant Visa Petition, for certain occupations referred to as “Schedule A” occupations, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available, and employers are therefore able to submit the PERM directly to USCIS along with the I-140, bypassing the DOL.

Schedule A includes two groups, as defined by DOL: Group I, registered nurses and physical therapists; and Group II, beneficiaries with exceptional ability in the sciences or arts (except performing arts) and beneficiaries with exceptional ability in performing arts.

While USCIS already considered DOL regulations when adjudicating Schedule A occupations before this update, the updated policy guidance ensures consistency in USCIS’s application of Schedule A, and namely Group II, classifications.

USCIS’s Policy Manual now includes DOL’s definition of “science or art”: “any field of knowledge of skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill.”

The policy guidance clarifies that adjudicators should not confuse the requirements for designating a beneficiary under Schedule A, Group II (immigrants of exceptional ability in the sciences or arts, including performing arts) with the requirements to classify someone under the EB-2 category (for immigrants of exceptional ability in the sciences, arts, or business). While both DOL and USCIS regulations refer to noncitizens of "exceptional ability," each regulation defines the term "exceptional ability" differently.

DOL's standard for Schedule A, Group II designation is "widespread acclaim and international recognition accorded the alien by recognized experts in the alien's field," (similar to the standard used for the EB-1A category but distinct from the EB-2 category's requirement of "a degree of expertise significantly above that ordinarily encountered.").

For Schedule A, Group II cases, the documentation required must be accompanied by evidence of exceptional ability.

Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the updated guidance on Schedule A, Group II may apply to your circumstances, please contact your team at D&S.

The Department of State has released the May 2024 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. In May 2024, USCIS will accept employment-based adjustment of status applications based on the Final Action Dates For Employment-Based Preference chart. To be eligible to file an adjustment of status application in May 2024, foreign nationals must have a priority date that is earlier than that listed on the Final Action Dates chart.

The EB-1 Final Action Date for India will remain at March 1, 2012, and the Final Action Date for China will remain at September 1, 2022. All other countries will remain current.

The EB-2 Final Action Date for India will remain at April 15, 2021 and China will remain at February 1, 2020. All other countries will remain at January 15, 2023.

The EB-3 Professional/Skilled Worker Final Action Date for India will remain at August 15, 2012, and China will remain at September 1, 2020. All other countries will remain at November 22, 2022.

The Final Action Dates for all EB-4 will remain at November 1, 2020 for all countries. In addition, with respect to the Final Action Date for the EB-5 Unreserved categories, India will remain at December 1, 2020, while China will remain at December 15, 2015. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will remain current for all countries.

The State Department projects “very little to no forward movement” in employment-based immigrant visa categories in the coming months, due to the fact that many employment-based Final Action dates advanced in the April 2024 Visa Bulletin.

FY2025 H-1B Cap Registration Deadline Extended to 12 pm ET on March 25

USCIS has announced that it will be extending the H-1B cap registration deadline to March 25, 2024, at noon ET, due to a recent system outage. The registration period was originally scheduled to run only through noon ET on Friday, March 22, but employers will now have until noon ET on Monday, March 25.

Until noon ET on March 25, 2024, prospective petitioners and their legal counsel can register beneficiaries for the H-1B cap selection process and pay the associated registration fee using their myUSCIS organizational account. USCIS still intends to notify selected registrants by March 31, 2024.

Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the H-1B cap registration extension may apply to your circumstances, please contact your team at D&S.

Department of State April 2024 Visa Bulletin Summary

The Department of State has released the April 2024 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. In April 2024, USCIS will accept employment-based adjustment of status applications based on the Final Action Dates For Employment-Based Preference chart. To be eligible to file an adjustment of status application in April 2024, foreign nationals must have a priority date that is earlier than that listed on the Final Action Dates chart.

The EB-1 Final Action Date for India will advance by five months to March 1, 2021, and the Final Action Date for China will advance by six weeks to September 1, 2022. All other countries will remain current.

The EB-2 Final Action Date for India will advance by six weeks to April 15, 2021 and China will advance by one month to February 1, 2020. All other countries will advance by seven weeks to January 15, 2023.

The EB-3 Professional/Skilled Worker Final Action Date for India will advance by six weeks to August 15, 2012, and China will remain at September 1, 2020. All other countries will advance by two and a half months to November 22, 2022.

In the fourth preference category EB-4, Minister and Non-Minister Religious Workers Program is set to expire on March 22, 2024. If Congress doesn't take any action to extend the dates beyond that date, the category will become “unavailable” after midnight on March 24.

With respect to the Final Action Date for the EB-5 Unreserved categories, India will remain at December 1, 2020, while China will remain at December 15, 2015. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will remain current for all countries.

In addition, the State Department projects “very little to no forward movement” in employment-based immigrant visa categories in the coming months, due to the fact that many employment-based Final Action dates will advance in the April 2024 Visa Bulletin.

Department of State March 2024 Visa Bulletin

The Department of State has released the March 2024 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. In March 2024, USCIS will accept employment-based adjustment of status applications based on the Final Action Dates For Employment-Based Preference chart. To be eligible to file an adjustment of status application in March 2024, foreign nationals must have a priority date that is earlier than that listed on the Final Action Dates chart.

The EB-1 Final Action Date for India will advance by one month to October 1, 2020, and the Final Action Date for China will advance by two weeks to July 15, 2022. All other countries will remain current.

The EB-2 Final Action Date for India will remain at March 1, 2012, while China will remain at January 1, 2020. All other countries will advance by one week to November 22, 2022.

The EB-3 Professional/Skilled Worker Final Action Date for India will remain at July 1, 2012, and China will remain at September 1, 2020. All other countries will advance by one week to September 8, 2022.

The Final Action Dates for all EB-4 will advance by approximately six months to December 1, 2019 for all countries. In addition, with respect to the Final Action Date for the EB-5 Unreserved categories, India will remain at December 1, 2020, while China will remain at December 15, 2015. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will remain current for all countries.

Department of State February 2024 Visa Bulletin Summary

The Department of State has released the February 2024 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. In February 2024, USCIS will continue to accept employment-based adjustment of status applications based on the Dates for Filing Employment-Based Preference chart. To be eligible to file an adjustment of status application in February 2024, foreign nationals must have a priority date that is earlier than that listed on the Dates for Filing chart.

The EB-1 Final Action Date for India will remain at September 1, 2020, and the Final Action Date for China will remain at July 1, 2022. All other countries will remain current.

The EB-2 Final Action Date for India will remain at March 1, 2012, while China will remain at January 1, 2020. All other countries will advance by two weeks to November 15, 2022.

The EB-3 Professional/Skilled Worker Final Action Date for India will advance by one month to July 1, 2012, and China will remain at September 1, 2020. All other countries will advance by one month, to September 1, 2022.

The Final Action Dates for all EB-4 will remain at May 15, 2019 for all countries. In addition, with respect to the Final Action Date for the EB-5 Unreserved categories, India will remain at December 1, 2020, while China will advance by one week to December 15, 2015. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will remain current for all countries.

We note again that USCIS will accept adjustment of status applications under the Dates for Filing chart in February 2024. In order to be eligible to file an employment-based adjustment of status application, foreign nationals must have a priority date that is earlier than the Dates for Filing listed below:

EB-1

China: January 1, 2023

India: January 1, 2021

All Other Countries: Current

EB-2  

China: June 1, 2020

India: May 15, 2012

All Other Countries: February 15, 2023

EB-3 Professionals and Skilled Workers

China: July 1, 2021

India: August 1, 2012

Philippines: January 1, 2023

All Other Countries: February 1, 2023

EB-3 Other Workers

China: June 1, 2017

India: August 1, 2012

Philippines: May 15, 2020

All Other Countries: December 15, 2020

EB-4

All Countries: September 1, 2019

EB-5 Unreserved (Regional Center and Non-Regional Center)

China: January 1, 2017

India: April 1, 2022

All Other Countries: Current

EB-5 Set-Asides

Rural: Current for all countries

High Unemployment: Current for all countries

Infrastructure: Current for all countries

USCIS Updates Guidance on Analysis of Employers’ Ability to Pay for Employment-Based Green Cards

USCIS issued policy guidance updating how it determines an employer’s ability to pay the wage being offered to the beneficiary of an immigrant visa petition (Form I-140), when the beneficiary changes employers while their I-140 is pending. Generally, employers sponsoring employment-based green cards must demonstrate their continuing ability to pay as of the I-140’s priority date until the beneficiary obtains their green card. To demonstrate their ability to pay, employers with fewer than 100 employees are required to submit annual reports, tax returns, or audited financial statements for each year from the priority date; employers with 100 or more employees may instead submit a statement from a financial officer attesting to their ability to pay.

The beneficiary of an I-140 who changes employers and whose petition has been pending for at least 180 days can “port” their petition to the new employer, so long as the new job is in a similar occupation as the original job. The updated guidance explains that, when the beneficiary of a pending I-140 ports their petition to a new employer, USCIS determines ability to pay by only reviewing facts in existence from the priority date to the time of filing—in other words, USCIS will look to the employer who filed the petition’s ability to pay. For petitions that require a Labor Certification Application (PERM), the priority date is the date the PERM was received by the Department of Labor (DOL), and USCIS will make its determination based on the facts in existence from that date to the I-140 filing date. For petitions that do not require a PERM, the priority date is the I-140 filing date, and USCIS will make its determination based on the facts in existence on that date.

Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the update to the ability-to-pay analysis may apply to your circumstances, please contact your team at D&S.

Premium Processing Fees Will Increase February 26, 2024

Starting February 26, 2024, premium processing fees will increase for immigrant worker petitions, nonimmigrant worker petitions, applications to extend or change nonimmigrant status, and applications for OPT employment authorization. The full table of adjusted premium processing fees is:

• Form I-140, Immigrant Petition for Alien Worker, from $2,500 to $2,805;

• Form I-129, Petition for a Nonimmigrant Worker, from $2,500 to $2,805 (from $1,500 to $1,685 for H-2B and R-1 petitions only)

• Form I-539, Application to Extend/Change Nonimmigrant Status, from $1,750 to $1,965; and

• Form I-765, Application for Employment Authorization, from $1,500 to $1,695 for F-1 OPT applications only.

The new fees will apply to premium processing requests postmarked on or after February 26, 2024. Moving forward, USCIS plans to adjust premium processing fees biennially.

USCIS has proposed a range of fee increases for other filings, but that proposal remains under review. We will continue to post updates as and if USCIS implements the proposed changes.

Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how premium processing fee increases may apply to your circumstances, please contact your team at D&S.

USCIS Updates Policy Guidance for International Students

USCIS issued new policy guidance regarding the F and M nonimmigrant classifications for international students. The F and M nonimmigrant classifications allow those without U.S. citizenship to enter the United States to study. The F-1 category is for academic students and includes students enrolled full-time at a college, university, seminary, conservatory, high school, private elementary school, or other academic institution, or in a language training program. The M-1 category is for vocational students and includes students enrolled in established vocational or other recognized nonacademic programs.

The update adds substantial material to the USCIS Policy Manual, including the following notable changes:

• Intent to Depart. The guidance clarifies that F and M students may be the beneficiary of an approved or pending permanent labor certification application (PERM) or immigrant visa petition, so long as they have a foreign residence that they do not intend to abandon. While they still must demonstrate that they intend to depart the United States at the end of their temporary period of stay, a pending or approved PERM or immigrant visa application does not, by itself, prevent a student from demonstrating that intent.

• STEM OPT. The guidance also specifies how F students seeking a STEM OPT extension may be employed by start-up companies. The start-up employer must be enrolled in and remain in good standing in E-Verify, adhere to the training plan requirements, have the resources to comply with the proposed training plan, and provide the STEM OPT worker commensurate compensation to that provided to similarly situated U.S. workers, among other requirements.

The guidance addresses USCIS’s role in adjudicating applications for employment authorization, change of status, extension of stay, and reinstatement of status for F and M visa holders and their dependents. The new guidance also clarifies policies related to eligibility requirements, school transfers, practical training, and on- and off-campus employment.

Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how changes to the policy guidance for international students may apply to your circumstances, please contact your team at D&S.

USCIS Announces that the H-1B Cap for FY2024 Has Been Reached

USCIS has confirmed that they have received a sufficient number of petitions needed to reach the congressionally mandated H-1B Cap (including the U.S. advanced degree exemption or “Master’s” cap) for Fiscal Year 2024.

USCIS will continue to accept and process H-1B cap-exempt petitions, including:

• Petitions filed for current H-1B workers who have previously been counted against the cap and who retain their cap number;

• Petitions to extend H-1B status;

• Petitions to change the terms of employment for current H-1B workers;

• Petitions to allow current H-1B workers to change employers;

• Petitions to allow current H-1B workers to work concurrently in additional H-1B positions.

USCIS will send non-selection notices to cap-subject registrants through their online accounts over the next few days.

Please note that the above is for informational purposes and does not constitute legal advice. For specific questions about how the FY2024 H-1B Cap may apply to your circumstances, please contact your team at D&S.

State Department January 2024 Visa Bulletin Summary

The Department of State has released the January 2024 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. In January 2024, USCIS will continue to accept employment-based adjustment of status applications based on the Dates for Filing Employment-Based Preference chart. To be eligible to file an adjustment of status application in January 2024, foreign nationals must have a priority date that is earlier than that listed on the Dates for Filing chart.

The EB-1 Final Action Date for India will advance by three years and eight months, to September 1, 2020. The Final Action Date for China will advance by four and a half months, to July 1, 2022. All other countries will remain current.

The EB-2 Final Action Date for India will advance to March 1, 2012, while China will advance to January 1, 2020. All other countries will advance to November 1, 2022.

The EB-3 Professional/Skilled Worker Final Action Date for India will advance by one month to June 1, 2012, and China will advance by approximately seven months to September 1, 2020. All other countries will advance by eight months, to August 1, 2022.

The Final Action Dates for all EB-4 will advance to May 15, 2019 for all countries. In addition, with respect to the Final Action Date for the EB-5 Unreserved categories, India will advance by approximately two years to December 1, 2020, while China will advance to December 8, 2015. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will remain current for all countries.

We note again that USCIS will accept adjustment of status applications under the Dates for Filing chart in January 2024. In order to be eligible to file an employment-based adjustment of status application, foreign nationals must have a priority date that is earlier than the Dates for Filing listed below:

EB-1

China: January 1, 2023

India: January 1, 2021

All Other Countries: Current

EB-2  

China: January 1, 2020

India: May 15, 2012

All Other Countries: February 15, 2023

EB-3 Professionals and Skilled Workers

China: July 1, 2021

India: August 1, 2012

Philippines: January 1, 2023

All Other Countries: February 1, 2023

EB-3 Other Workers

China: June 1, 2017

India: August 1, 2012

Philippines: May 15, 2020

All Other Countries: December 15, 2020

EB-4

All Countries: September 1, 2019

EB-5 Unreserved (Regional Center and Non-Regional Center)

China: January 1, 2017

India: April 1, 2022

All Other Countries: Current

EB-5 Set-Asides

Rural: Current for all countries

High Unemployment: Current for all countries

Infrastructure: Current for all countries