By: Jake Campbell and Victoria Ma
Seyfarth Synopsis: The below summarizes recent legal updates that impact U.S. immigration:
1. H-1B Cap Registration is Live
H-1B cap registration opened on March 1, 2023 at noon EST and closes on March 17, 2023 at noon EST. Employers should be prepared to submit critical data points associated with each H-1B registration before the registration period ends. USCIS indicated that it will notify employers of selections by March 31, 2023, and will confirm the filing period for H-1B petitions.
2. USCIS Updates Child Status Protection Act Age Calculation for Certain Adjustment of Status Applicants
On February 14, 2023, USCIS began to use the Dates for Filing chart to calculate a noncitizen’s age in certain situations under the Child Status Protection Act (CSPA). Before this guidance, USCIS determined visa availability for certain noncitizen children’s CSPA age calculation based only on the Final Action Date chart, even if applicants could apply for adjustment of status using the Dates for Filing chart, leaving many dependent children in an uncertain situation with a potential risk of being separated from their parents’ applications.
This policy change applies to pending adjustment of status applications. For previously denied adjustment of status applications, individuals may file a motion to reopen within 30 days of the denial. If it has been more than 30 days after the denial , USCIS has discretion to excuse the untimely filing of the motion to reopen; however, the individual bears the burden to demonstrate that the delay was reasonable and beyond the individual’s control.
3. Possible U.S. Stateside Visa Renewals Later This year
Earlier this month, Bloomberg Law interviewed Julie Stufft, Deputy, Assistant Secretary of Visa Services in the Bureau of Consular Affairs, and reported that the U.S. Department of State intends to launch a pilot program later this year offering stateside visa renewals for H-1B and other temporary visa holders. Currently, these visa holders can only obtain their visas abroad. U.S. stateside visa renewals were discontinued in 2004. Restoring this program will save those applicants from having to leave the country to renew their visas and will reduce the workload of consular offices abroad.
4. Board of Immigration Appeals (BIA) Found Noncitizens Inadmissible Under Immigration and Nationality Act (INA) §212(a)(9)(B)(i) Are Not Required To Depart And Remain Outside The United States During That Entire Period Of Inadmissibility
Temporary 3- and 10-year admissibility bars apply when a non-U.S. citizen departs the United States after having been unlawfully present in the United States for more than 180 days, or 1 year or more, respectively. Previously, the foreign national must have completed the 3- or 10-year ban while remaining abroad. However, the Board of Immigration Appeals held that noncitizens who are inadmissible for a specified period of time pursuant to section 212(a)(9)(B)(i) of the INA due to their previous unlawful presence and departure are not required to reside outside the United States during this period in order to subsequently overcome this ground of inadmissibility. See Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023).
5. Proposed USCIS Fee Increase Comment Period Extension
On January 4, 2023, the United States Citizenship and Immigration Services (USCIS) published a proposed rule to increase fees for most immigration benefit requests. The rule is currently in the commenting period, which ends on March 13, 2023. Individuals can submit comments here. After the commenting period concludes, USCIS will respond to these comments and may publish a Final Rule. This process is expected to take several months.
Seyfarth will offer more details and insights once more information is available. Please contact the author or your Seyfarth attorney if you have any questions.