The U.S. State Department and U.S. Citizenship and Immigration Services announced that they have issued all legally available visas in the unreserved EB-5 Immigrant Investor Program categories for Fiscal Year 2024. Embassies and consulates have been directed to not issue immigrant visas in these categories until the new fiscal year (FY 2025) starts on Oct. 1, 2024.
As discussed in our recent blog post on EB-5 filing strategies, a total of approximately 140,000 immigrant visas are available every fiscal year for employment-based immigrant visas, including the EB-1, EB-2, EB-3, EB-4, and EB-5 categories. Of the 140,000 immigrant visas available annually, the government allocates approximately 10,000 to the EB-5 investor visa program. The visas are also subject to per-country visa quotas. The Immigration and Nationality Act sets the annual limit for EB-5 visas at 7.1% of the worldwide employment limit, of which 68% is available for unreserved visa categories (C5, T5, I5, R5, RU, NU). Additionally, the EB-5 Reform and Integrity Act of 2022 makes unused EB-5 reserved visas from FY 2022 available in the EB-5 unreserved categories for FY 2024.
USCIS and the State Department reported minimal movement in the EB-2 and EB-3 categories for Mexico, the Philippines, and all other chargeability areas except India and China.
USCIS authorized use of the Dates for Filing chart.
Continued limitations on immigrant visas particularly impact chargeability areas of India and China where employers and individuals had hoped to take advantage of shorter wait times in the EB-1 category.
The February 2024 Visa Bulletin
USCIS will continue to use the Dates for Filing chart in the February 2024 Visa Bulletin in determining eligibility for I-485, Application to Register Permanent Residence or Adjust Status, filings. The Dates for Filing chart reflects priority dates anticipated to become current during the fiscal year, whereas the Final Action Dates chart reflects priority dates considered current and available for the specific month. This means that while an applicant may file the I-485 based on the Dates for Filing chart, the application will not be adjudicated at least until the applicant’s priority date becomes current on the Final Action Dates chart.
In summary, there is no advancement in final action dates for China and India in all employment-based categories except that the Other Workers category for India has advanced by one month. For all other chargeabilities, Mexico, and the Philippines, the EB-1 category remains current, the EB-2 category advances by fifteen days, the EB-3 category advances by one month, and the EB-4 Certain Religious Workers category remain the same.
USCIS has confirmed its continued use of the Dates for Filing chart for adjustment of status filing purposes. However, the dates for filing remain the same as in the January 2024 Visa Bulletin in all categories for all countries.
The Dates for Filing chart for employment-based categories follows below.
Impacts of Immigrant Visa Backlogs, Slow Movement, and Retrogression: EB-1 Considerations
In the January 2024 Visa Bulletin, we saw some forward movement in certain employment-based categories, particularly in the EB-1 category. This movement aligned with the hope that all EB categories, including the EB-1 category, would advance significantly or at least steadily. USCIS and the State Department had also indicated holding this hope in the August 2023 Visa Bulletin. However, the Visa Bulletins for October 2023, November 2023, December 2023, and January 2024 showed slow movement, with the Visa Bulletin for February 2024 indicating little to no movement at all.
The lack of advancement in priority dates particularly impacts those chargeable to India and China. While those chargeable to India and China have historically experienced long green card wait times in the common categories of EB-2 and EB-3, many employers and individuals choose to pursue the EB-1 category in hopes to secure the green card in a much shorter time. The benefits to an employer if a sponsored employee receives a green card earlier is that there is a reduction in immigration costs and a reduction in time that an employer would be beholden to immigration regulations. The employer can also rest assured that their talent can be retained beyond the limits of a nonimmigrant visa status.
However, despite the retrogression of the EB-1 categories for China and India, there still stands a benefit that visa availability wait times for the EB-1 category remains much faster than any other category. Employers considering pursuing the EB-1 process for their employees may want to note that the EB-1 holds an extremely high standard. The EB-1 is generally reserved for highly talented individuals who have risen to the top of their field or individuals who will work in a managerial capacity in addition to meeting other narrow criteria.
In response to the coronavirus pandemic, USCIS extended certain flexibilities to help applicants, petitioners, and requestors. In March 2022, USCIS announced that it was extending the flexibilities through July 25, 2022, and that this would likely be the final extension of these flexibilities. USCIS has now stated that it will consider a response received within sixty calendar days after the due date set forth in the following requests or notices before taking any action, if the issuance date on the request or notice is between March 1, 2020, and October 23, 2022, inclusive:
Requests for Evidence
Continuations to Request Evidence (N-14)
Notices of Intent to Deny
Notices of Intent to Revoke
Notices of Intent to Rescind
Notices of Intent to Terminate Regional Centers
Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant
USCIS also “will consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA [Immigration and Nationality Act]),” if:
the form was filed up to ninety calendar days from the issuance of a USCIS decision; and
the agency made the decision between November 1, 2021, and October 23, 2022, inclusive.
Permanent Extension for Electronically Reproduced Original Signature Policy
In an unexpected move, USCIS also announced that it is permanently extending the electronically reproduced original signature policy announced in March 2020. According to the earlier announcement, under this policy, USCIS “will accept all benefit forms and documents with reproduced original signatures.” This means that “a document may be scanned, faxed, photocopied, or similarly reproduced[,] provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified.” USCIS stated that applicants, petitioners, and/or requestors submitting documents bearing reproduced original signatures “must also retain copies of the original documents containing the ‘wet’ signature [because] USCIS may, at any time, may request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.”
In March 2022, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas announced that Afghanistan was added to the list of countries eligible for TPS. This would benefit approximately 75,000 individuals and provide temporary employment authorization. The 18-month initial grant and registration period became effective on March 20, 2022, and runs through November 20, 2023.
To be eligible, individuals must demonstrate their continuous residence in the United States since March 15, 2022, and their continuous physical presence in the United States since March 20, 2022. Any nationals or residents of Afghanistan who are not currently residing in the United States or who arrived after March 15, 2022, will not be eligible for this TPS designation.
Eligible individuals must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period. They may also submit a request for an Employment Authorization Document using Form I-765, Application for Employment Authorization. The applications may be submitted together and may be submitted online.
Afghan nationals who arrived in the United States through the evacuation effort, Operation Allies Welcome, received humanitarian parole and work authorization for a period of two years. Those individuals may also be eligible for TPS.
DHS has also announced that F-1 students from Afghanistan experiencing severe economic hardship due to the situation in Afghanistan will be eligible for work authorization, increased permittable work hours, and a reduction in their course load as an accommodation.
E-Verify has been operational since 1997 as part of a Basic Pilot Program to assist employers to verify electronically that a newly hired employee is authorized to work in the US. A number of states have made use of E-Verify mandatory, including North Carolina which requires that employers with 25 employees to have been enrolled in E-Verify by July 1, 2013.
Update
Currently there are over 530,000 employers nationwide enrolled in E-Verify. Statistically, the program has grown rapidly as has its accuracy, having verified close to 24 million cases. Of those, 98.81% have been confirmed as employment authorized. The US Citizenship and Immigration Services (USCIS) graphic below provides E-Verify’s latest statistics:
The Monitoring and Compliance Branch (M&C Branch) was created by the USCIS in 2009 to ensure E-Verify is being used properly. Its main function is to monitor and guide E-Verify participants by phone, email, desk reviews and site visits. This unit does not fine employers, but does refer cases of suspected misuse, abuse or fraud to Immigration Customs and Enforcement (ICE) and the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). There has been an uptick in complaints to the OSC resulting in some sizeable settlements. All settlement agreements described on the OSC website have one thing in common: all employers participated in E-Verify and the OSC became involved, for the most part, by the USCIS referring the employer to OSC. Thus, it is noteworthy that participation in E-Verify alone does not protect an employer from enforcement action and penalties.
Recent Improvements to E-Verify System
E-Verify has announced some needed improvements to its system to assist employers who, in doing so, will hopefully not attract M&C Branch attention:
Duplicate Case alert now notifies the employer if a social security number matches any other social security number entered for an existing case with the past 30 days.
The user’s name no longer auto-fills: it must now be completed each time to ensure accuracy, providing a prompt to validate or update email and phone number whenever the user’s password expires, which is every 90 days.
An employee whose information is entered in E-Verify resulting in a tentative nonconfirmation will receive email notification if they provide their email address on the Form I-9.
There is a new photo tool that will display any photo on record with E-Verify, enabling the user to compare it to the photo ID being presented.
E-Verify now verifies a driver’s license as to authenticity by matching the data entered by the user against participating state motor vehicle department records. Currently, North Carolina does not participate in this so-called RIDE system.
If E-Verify detects fraudulent use of a social security number, it prevents that number from being used more than once.
Notices generated by E-Verify are now available in 18 languages.
There are monthly webinars in Spanish for employers.
E-Verify screens for typographical errors and requires employers to correct them.
The Further Action Notice that is generated after a Tentative Nonconfirmation from the Department of Homeland Security includes instructions on how to correct immigration records after resolving the Tentative Nonconfirmation on E-Verify.
Updated Further Action Notices are also no longer pre-populated, but are easy to complete.
Customer support has been improved and includes an “E-Verify Listens” link that can be accessed by the E-Verify user while in the E-Verify system to assist with E-Verify completion.
While the system is not perfect, it is increasingly pervasive and increasingly “user friendly.” Further, employers have a strong incentive to use E-Verify properly to avoid settlements generated by enforcement actions that appear to be directly linked to E-Verify misuse, abuse and fraud.
