Business Immigration in a Minute by Honigman LLP

• The Department of State recently released the April 2023 Visa Bulletin. In addition to the final action dates and dates for filing charts for employment-based immigrant visa and adjustment of status cases, it contains notes on the diversity lottery and EB-2 retrogression. Unfortunately, the EB-2 category will retrogress for all countries except China in April. EB-3 China final action dates will advance by approximately three months. The EB-1 cut-off date for India and China will remain unchanged. For April 2023, employment-based applicants must use the final action dates chart for adjustment of status applications.
  
  
• United States Citizenship and Immigration Services (“USCIS”) announced that its policy of extending deadlines for responding to certain requests and notices from the agency will end on March 23, 2023. Petitioners and applicants must respond to any notices or requests from USCIS dated after March 23, 2023 by the deadlines listed in the notice or request, including Requests for Evidence, Notices of Intent to Deny, and Notices of Intent to Revoke. USCIS retains its discretion to provide certain flexibilities on a case-by-case basis upon request, such as for applicants or petitioners affected by an emergency or unforeseen circumstance (e.g., natural catastrophes, national emergencies, or severe illness).
  
  
• USCIS announced the expansion of premium processing for certain F-1 students seeking Optional Practical Training (“OPT”) and STEM OPT extensions who have a pending Form I-765, Application for Employment Authorization on file with USCIS. Online filing of Form I-907, Request for Premium Processing Service is now also available to F-1 students in these categories.
  
  
• USCIS recently updated its guidance regarding an employer’s ability to pay the proffered wage for certain employment-based immigrant petition adjudications. The guidance clarifies the initial evidence required to establish an employer’s ability to pay and explains how USCIS analyzes evidence and issues relevant to an employer’s ability to pay, such as the petitioner’s current employment of the beneficiary, prorating the proffered wage for the priority date year, multiple beneficiaries, successors-in-interest, and non-profit organizations. 
  
  
• The Department of Labor (“DOL”) updated its processing times for permanent labor certification (“PERM”) applications and prevailing wage requests. As of February 28, 2023, the DOL is adjudicating PERM applications filed in or before June 2022 and processing prevailing wage requests filed in or before January 2022.

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