October 2022 Visa Bulletin – EB-2 Retrogression For India – All others remain Current or Advance

Concurrent with the announcement that all green cards had been allocated for the EB-1 and EB-2 categories for the current fiscal year, the Visa Bulletin for October was also released. The priority dates for EB-1 and EB-2 were unchanged for the September Visa Bulletin but there was a significant retrogression for EB-2 priority dates for India. NOTE: September is using the Final Action Dates for Employment Based visas and October is using the Dates for Filing charts.

The EB-1 priority dates for all countries remain current.

The EB-2 priority dates for all countries other than China and India remain current.

The EB-2 priority dates for China move forward from April 1, 2019 to July 8, 2019.

The EB-2 priority dates for India moved back significantly from December 1, 2014 to May 2012.

After making significant progress with the EB-2 priority dates over the past year, going from a Final Action Date of September 1, 2011 to in September 2021 to a Final Action Date of December 1, 2014 in September 2011, this is unexpected and disheartening news for the many thousands of Indian nationals holding an approved EB-2 based I-140. Hopefully the retrogression under the EB-2 category for India will be temporary and the priority dates will advance quickly.

EB-1 and EB-2 Green Cards No Longer Available for Current Fiscal Year

On September 7, USCIS announced that there are no green cards available for either EB-1 or EB-2 classifications for the remainder of the current fiscal year. This means that green cards will begin being issued again when the next fiscal year begins in October. As such, if you have a pending adjustment of status with an approved I-140, you can anticipate that your green card will be processed after October 1, 2022.

It is important to note that based on the Visa Bulletin, the priority dates for all countries remain current for the EB-1 category and priority dates remain current for all countries except China and India under the EB-2 category. There has been no retrogression for September priority dates for any country. If you have an approved I-140 and your priority date is current you can still file your I-485.

If you have any questions about the timing of filing an I-485 please feel to reach out to us.

Signature Flexibility and Extended USCIS Deadlines

USCIS has announced that the reproduced signature flexibility that was implemented on March 20, 2020, became permanent policy effective on July 25, 2022. On March 20, 2020, USCIS specified that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy was of an original document containing an original handwritten signature and that for forms that require an original “wet” signature USCIS would accept electronically reproduced original signatures.

In addition, USCIS also announced that the automatic 60-day extension has been extended to October 23, 2022. This means that any RFE or NOID that was issued on or before October 23, 2022, has an automatic 60-day extension from the due date stated in the RFE or NOID.

USCIS Filing Extensions Set to Expire

USCIS announced that the automatic 60 day extension has been extended to July 25, 2022. During the pandemic, USCIS provided an automatic extension on due dates. Any RFE or NOID that was issued on or before July 25, 2022 has an automatic 60 day extension from the due date stated in the RFE or NOID. The automatic extension also provides for 60 days to file a motion to reopen/reconsider or appeal from a denial as opposed to the standard 30 days (33 days if mailed) to file.

However, USCIS in the announcement stated that this was likely to be the last extension. Starting from July 25, 2022 the due date for any RFE, NOID or Decision will not be be extended.

UPDATED: Limited NIW Premium Processing to Begin July 1, 2022

Shortly after posted my initial summary of the USCIS Alert discussed in my previous post below, USCIS issued an Announcement updating the information that was not initially provided with the Alert. Beginning July 1, 2022, USCIS will accept Form I-907 requests ONLY for E21 NIW petitions received on or before June 1, 2021. Basically, unless your case has been pending for more than one year already, you cannot avail yourself of premium processing.

Also, in the new Announcement was the phase in of premium processing for E13 multinational executive and manager petitions. Premium processing for E13 I-140 petitions will begin June 1, 2022 for petitions that were filed on or before January 1, 2022. Beginning July 1, 2022, USCIS will accept premium processing for E13 petitions that were filed on or before March 1, 2021. Based on what this illustrates, it appears that USCIS will issue new dates each month for filing dates that will be eligible for premium processing. If the E13 timetable is any indication we can hopefully expect that more individuals with pending NIWs will be eligible for premium processing every month.

We will have to watch for USCIS announcements each month to see which filing dates will be eligible for premium processing.

NIW Premium Processing to Begin July 1, 2022

USCIS issued an alert stating that the agency will begin “phasing in” premium processing for NIW Petitions on July 1, 2022, but only for “certain previously filed Form I-140 petitions requesting E21 national interest waiver (NIW) classification. The alert states “(p)lease see the Form I-140 information below regarding the upgrade schedule and when new petitions may be filed requesting premium processing.” Despite this statement that additional information is available a close examination failed to turn up any additional information. It is hoped that additional information regarding how NIW premium processing will be phased in will be posted soon. USCIS is phasing in premium processing starting June 1, 2022 for “previously filed Form I-140 petitions requesting E13 classification for multinational executives and managers,” and “additional” E13 classified I-140 petitions will be eligible for premium processing starting on July 1, 20222. It is assumed that by “additional”, USCIS means new petitions will be eligible for premium processing on July 1, 2022.

It appears that USCIS is phasing in premium processing for NIW petitions and that it will be longer than first hoped before newly filed NIW petitions will be eligible for premium processing. Once more information is available and there is more clarity as to the implementation of premium processing for NIW petitions we will provide an update.

USCIS Increases EAD Automatic Extension to 540 Days

USCIS announced on May 3, 2022 that a Temporary Final Rule (TFR) automatically extending EAD validity for renewals from 180 to 540 days was implemented effective tomorrow, May 4, 2022 through extensions filed before October 27, 2023. The TFR states that certain persons who have timely filed an EAD extension will automatically receive a 540 day extension. Included in the list are our clients in category (c)(9) who have filed an Adjustment of Status based on an I-140 approval or filing. The standard 180 day extension was increased by 360 days to a total of 540. The reason for implementing the rule is the fact that EAD applications and renewals are not being processed in a timely manner. TFR documented that the number of EAD applications and extensions have increased considerably while at the same time the number of cases processed decreased significantly during the pandemic.

It is important to note that this only applies to EAD extensions. I have long advocated that this was a simple solution and while it would have been beneficial for many to have had it implemented much sooner, it is very welcome news and beneficial to those who are currently waiting on their EAD extensions or planning on filing their extensions soon. If you have an extension pending you should provide a copy of the USCIS announcement along with your I-765 receipt notice to your employer to document that you are maintaining valid work status.

USCIS Announces New Actions to Reduce Backlogs

USCIS announced that it is taking action by implementing new procedures and policies to reduce current backlogs that exist. The agency in an effort to speed up case processing times established new internal cycle time goals. The time goals include 3 months for I-765 and I-131 processing and 6 months for I-485 and I-140 non-premium processing. As part of the efforts to reduce the backlog USCIS also is expanding Premium Processing. The agency announced that premium processing will be added to expedite processing for I-140 NIW petitions, I-539 adjustment of status, and Form I-765 work authorization. The new premium processing policies will be implemented in phases with the I-140 premium processing for EB-1 multinational executive or manager and EB-2 national interest waiver cases being part of the first phase. Finally as part of the plan USCIS is working on issuing a temporary final rule entitled “Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants.” Through the future issuance of this final rule, USCIS is working to better manage and reduce the time related to the issuance of employment authorization documentation. While we applaud the efforts, this should have been done a year ago. USCIS has taken far too long to address EAD delays and any additional delay is unnecessary and unwarranted.

NIW PREMIUM PROCESSING ANNOUNCED!

On March 29, 2022 USCIS at long last announced that premium processing will soon be available for EB-2 National Interest Waiver petitions. Premium processing will be available for both newly filed cases and currently pending cases. The USCIS fee for premium processing is expected to be $2,500.00. USCIS plans to begin a phased implementation for expanding premium processing and the EB-2 NIW will be part of the first phase. A full reading of the text of the law suggests that NIW premium processing will begin sometime in late May to early June. We will closely monitor USCIS and notify our clients with pending NIW cases as soon as premium processing becomes eligible. If you are interested in getting the paper work prepared in advanced so that everything is ready to file the day NIW premium processing becomes available please reach out to us for further information.

Possible Priority Date Elimination for STEM Ph.D. Holders

A bill in the U.S. House of Representatives, “The America Competes Act 2022” proposes to exempt persons with a doctorate degree in a STEM field from a qualified United States research institution, or a foreign institution if the degree is equivalent to a U.S. STEM doctorate who are seeking admission to engage in work in the United States in a field related to the doctorate, from the per-country green card caps. If this passes this will help address the Adjustment of Status wait times for India and China. This along with the possible recapture of the 400,000 unused green cards should help significantly lessen wait times for those without a STEM Ph.D. waiting for their priority dates to come current.