U.S. Immigration Updates – August 2022 Monthly Review – Work Visas

FY 2023 H-1B Cap Has Been Reached According to USCIS

U.S. Citizenship and Immigration Services (USCIS) announced on
August 23, 2022, that it has received a sufficient number of
petitions needed to reach the congressionally mandated 65,000 H-1B
visa regular cap and the 20,000 H-1B visa U.S. advanced degree
exemption, known as the master’s cap, for fiscal year (FY)
2023.

USCIS said it has completed sending non-selection notifications
to registrants’ online accounts. The status of such
registrations will show as “Not Selected.” USCIS will
continue to accept and process petitions that are otherwise exempt
from the cap. Petitions filed for current H-1B workers who have
been counted previously against the cap, and who still retain their
cap numbers, are exempt from the FY 2023 H-1B cap. USCIS said it
will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in
    the United States;

  • Change the terms of employment for current H-1B workers;

  • Allow current H-1B workers to change employers; and

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

SOURCE: ABIL Immigration Insider, August 28,
2022, and USCIS alert, Aug. 23, 2022,


E-Verify Experiencing System Outages During Case Initiation

E-Verify reported that it is experiencing intermittent system
outages. As a result, “users may experience system timeouts
and increased processing times when creating and submitting
cases,” E-Verify said, adding that it is working to resolve
the issue.

Employers must continue to complete and retain a Form I-9 for
every person hired to work for pay in the United States within the
required timeframes, E-Verify noted.

SOURCE: ABIL Immigration Insider, August 28,
2022 and


DOL: FLAG Experiencing System Issues

The Department of Labor (DOL) announced on August 24, 2022, that
the Foreign Labor Application Gateway (FLAG) system “continues
to experience intermittent issues when creating certain application
forms, appendices, or other decision documents through Adobe
PDF.” DOL recommended that users “carefully review the
Adobe PDF decision documents generated by the FLAG system for
accuracy and completeness.” DOL said users should contact the
FLAG Technical Help Desk Team if any decision document appears
incomplete or otherwise contains inaccuracies.

SOURCES: ABIL Immigration Insider, August 28,
2022 and


DHS Proposes to Allow for Alternatives to Physical Document
Examination for I-9 Verification

On August 18, 2022, the Department of Homeland Security (DHS)
proposed a rule to allow for alternative document verification
procedures for Form I-9, Employment Eligibility Verification. The
proposed rule would create a framework under which the Secretary of
Homeland Security could authorize alternative options for document
examination procedures for some or all employers.

According to the notice of proposed rulemaking (NPRM), such
procedures could be implemented as part of a pilot program; upon
the Secretary’s determination that such procedures offer an
equivalent level of security; or as a temporary measure to address
a public health emergency declared by the Secretary of Health and
Human Services under the Public Health Service Act, or a national
emergency declared by the President under the National Emergencies
Act.

The NPRM notes that in light of advances in technology and
remote work arrangements, the Department of Homeland Security (DHS)
is exploring alternative options, including making permanent some
of the COVID-19 pandemic-related flexibilities to examine
employees’ identity and employment authorization documents for
the Form I–9. The rule would not create such alternatives but
would instead formalize the authority for the DHS Secretary
“to extend flexibilities, provide alternative options, or
conduct a pilot program to further evaluate an alternative
procedure option (in addition to the procedures set forth in
regulations) for some or all employers, regardless of whether their
employees physically report to work at a company location.”
DHS said it would introduce any such alternative procedure in a
future Federal Register notice.

SOURCE: ABIL Immigration
Insider
, August 21, 2022, and 87 Fed. Reg. 50786 (Aug. 18,
2022),


Visa Delays and Unprecedented Wait Times Create Frustration for
Workers, Employers

According to reports, visa delays, backlogs, and unprecedented
wait times at U.S. embassies and consulates are causing disruptions
for workers and companies, particularly those employing workers in
temporary statuses who need to renew their visas outside the United
States.

For example, excluding student and visitor visas, wait times for
visas in Istanbul, Turkey, exceed 16 months; in New Delhi, India,
wait times hover at nine months for the thousands of highly skilled
temporary workers coming to the United States on H-1B and L-1
visas. Business visa processing in Chile can take up to three
years.

The delays are thought to be at least partly the result of
increased travel demand related to the COVID-19 pandemic, staffing
issues at embassies and consulates, and a two-year shutdown of
processing guestworker visas by the Trump administration. Some
business groups and immigration attorneys advocate measures such as
allowing remote interviews or permitting those with expiring visas
to renew in the United States rather than requiring them to leave
the country as a way of relieving backlogs. Reportedly, the
Department of State (DOS) is considering such options. Meanwhile,
DOS said it has doubled hiring of consular staff in fiscal year
(FY) 2022 over FY 2021 and noted that “[n]early all U.S.
embassies and consulates have resumed full visa services.”

SOURCE: ABIL Immigration
Insider
, August 21, 2022, and “Visa Bottlenecks Are
Creating Headaches for Employers, Workers,” Aug. 16, 2022,


USCIS Clarifies Eligibility Determinations for L-1 Nonimmigrant
Managers, Executives, and Specialized Knowledge Workers

On August 16, 2022, U.S. Citizenship and Immigration Services
(USCIS) issued a policy alert to clarify how the agency determines
eligibility for L-1 nonimmigrants seeking classification as
managers or executives (L-1A) and specialized knowledge workers
(L-1B).

The update does not make changes to existing policy or create
new policy. The update consolidates and updates guidance previously
included in the Adjudicator’s Field Manual, Chapter 32, as well
as related appendices and policy memoranda.

SOURCE: ABIL Immigration
Insider
, August 21, 2022, and and


September 2022 Visa Bulletin Indicates Increasing Demand for
Employment Based Visas

The Department of State’s (DOS) Visa Bulletin for September
notes a steady increase in both U.S. Citizenship and Immigration
Services and Department of State demand patterns for
employment-based visas during the fiscal year. As a result, the
Department expects that most employment-based preference category
limits and/or the overall employment-based preference limit for FY
2022 to be reached during September. If the annual limit were
reached, “it would be necessary to immediately make the
preference category ‘unavailable,’ and no further requests
for numbers would be honored,” the bulletin states.

For adjustment of status filing dates for September 2022, the
Final Action Dates chart in the Visa Bulletin must be used for
employment-based preference categories.

The bulletin also notes that the worldwide employment-based
preference numerical limit for FY 2022 is 281,507.

SOURCE: ABIL Immigration
Insider
, August 14, 2022 and


Semi-Annual Regulatory Agendas Published by DHS and DOL

On August 8, 2022, the Departments of Homeland Security (DHS)
and Labor (DOL) published their semiannual regulatory agendas,
which summarize projected and existing regulations. The agendas
give an overview of what the agencies are considering during the
upcoming one-year period. Below are selected highlights:

Among other things, DHS plans to propose adjusting the fees
charged by U.S. Citizenship and Immigration Services (USCIS) for
immigration and naturalization benefit requests. On August 3, 2020,
DHS adjusted the fees, imposed new fees, revised certain fee waiver
and exemption policies, and changed certain application
requirements via a rule. DHS was preliminarily enjoined by court
order from implementing that rule. This rule would rescind and
replace the changes made by the August 3, 2020, rule and establish
new USCIS fees.

Also, DOL’s Employment and Training Administration and Wage
and Hour Division, and DHS/USCIS, plan to jointly propose to amend
H-2B nonimmigrant visa program regulations. The proposed rule would
establish standards and procedures for employees seeking to hire
foreign temporary nonagricultural workers for certain itinerant job
opportunities, including entertainers and carnivals and utility
regulation management.

SOURCE: ABIL Immigration
Insider
, August 14, 2022 and


New Information Sources on STEM Released

Several entities have released new resources on research and
options for noncitizens in the fields of science, technology,
engineering, and mathematics (STEM) in the United States:

U.S. Citizenship and Immigration Services has published
resources to provide an overview of some of the temporary and
permanent pathways for noncitizens to work in the United States in
STEM fields. The materials also highlight some of the most
important considerations for STEM professionals who want to work in
the United States. New pages include “Options for Noncitizen
STEM Professionals to Work in the United States,”
“Nonimmigrant Pathways for STEM Employment in the United
States,” and “Immigrant Pathways for STEM Employment in
the United States.”

The American Immigration Council rolled out a new website with
guides and frequently asked questions on the five international
STEM talent policies announced in January 2022 by the Biden
administration to enhance the ability of the United States to
attract and retain international STEM talent. The website features
five guides and FAQs
(
and new research and links to other work
(

In a new policy brief, the National Foundation for American
Policy has documented the role played by immigrants as founders and
key personnel in many of the United States’ most innovative
companies. The research shows the importance of immigrants in
cutting-edge companies and the U.S. economy at a time when U.S.
immigration policies have pushed talent to other countries.

SOURCE: ABIL Immigration Insider, July 31,
2022

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