EB-1 Retrogression for India and China effective January 2023 – EB2 remains unchanged

The recently released Visa Bulletin for January 2023 shows that the EB-1 priority date for Indian and Chinese nationals has retrogressed to June 1, 2022 based on the Dates of Filing. The priority dates for the EB-2 category remain unchanged with the priority date for India set at May 1, 2012, China July 8, 2019 and all other countries are December 1, 2022.

EB-2 Priority Date Retrogression for December 2022

The recently released Visa Bulletin for December 2022 indicates that the EB-2 visa category will retrogress starting December 1, 2022. This means that concurrent filing will no longer be available for EB-2 based I-140 filings. The priority date under Dates of Filing is now December 1, 2022. The EB-2 priority dates for India and China remain unchanged.

USCIS EXTENDS FILING DEADLINES

USCIS has again extended filing deadlines. The filing deadlines were extended until January 24, 2023. This means that there is an automatic extension of 60 days available to file a response to a Request for Evidence or a Notice of Intent to Deny, among other Notices and Requests issued between March 1, 2020 and January 24, 2023. Additionally the filing of an I-290B Notice of Appeal or Motion is considered timely if filed up to 90 days from the issuance of a decision made between November 1, 2021 and January 24, 2023.

UPDATE: EB2 NIW Premium Processing

The new filing date upon which Premium Processing can be requested for a pending EB-2 NIW is February 1, 2022. The USCIS premium processing fee is $2500.00 and you will get a decision back within 45 days. We have filed several requests for premium processing on behalf of our clients with pending NIW petitions and have had positive results, with the approval in many of them being issued within less than a week. If your I-140 was filed on or before February 1, 2022, and you are interested in requesting premium processing for your case please contact us.

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 Renewed

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.

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.