Business Immigration in a Minute by Honigman LLP

• The Department of State (“DOS”) recently released the October 2022 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 visa availability and retrogression. The most significant change in the October Visa Bulletin is the severe retrogression of India EB-2 final action dates and dates for filing. DOS explained that this retrogression was necessary to keep visa number use within the maximum allowed under the FY 2023 annual limits after heavy EB-2 applicant demand materialized following rapid forward movement in the India EB-2 category in FY 2022, coupled with significantly lower visa number availability for India EB-2 for FY 2023. China EB-2 final action dates and dates for filing, as well as India and China EB-3 final action dates and dates for filing will move forward a few months in October.  All first employment-based preference countries of chargeability will remain current. For October 2022, employment-based applicants must use the dates for filing chart for adjustment of status applications.
  
  
• U.S. Citizenship and Immigration Services (“USCIS”) provided Frequently Asked Questions addressing FY 2023 employment-based adjustment of status questions and states that the FY 2023 annual limit will be higher than was typical before the pandemic, but lower than FY 2021 and FY 2022. The Frequently Asked Questions address important topics including retrogression, The Child Status Protection Act, when to file I-693 medicals, and more.
  
  
• The U.S. Department of Labor (“DOL”) recently updated its processing times for permanent labor certification (“PERM”) applications and prevailing wage requests. As of August 31, 2022, DOL is adjudicating ETA 9089 PERM applications filed in or before January 2022 and processing PERM prevailing wage requests filed in or before January 2022.
  
  
• USCIS is implementing the third phase of the premium processing expansion for certain petitioners who have a pending Form I-140 under the EB-1 and EB-2 classifications. Similar to the first and second phases of the expansion, this phase only applies to certain previously filed Form I-140 petitions under the multinational executive and manager classification or the classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (“NIW”). As of September 15, 2022, USCIS will accept Form I-907 requests for multinational executive and manager petitions received on or before January 1, 2022 and NIW petitions received on or before February 1, 2022.
  
  
• USCIS issued policy guidance at Volume 2, Part L in the USCIS Policy Manual to clarify how it determines eligibility for L-1 nonimmigrants seeking classification as managers or executives or specialized knowledge workers, as well as guidance on filing, documentation and evidence, and adjudication of L-1 petitions. This update consolidates and updates guidance that was previously contained in the Adjudicator’s Field Manual (“AFM”) Chapter 32, as well as related AFM appendices and policy memoranda. This update is not intended to change existing policy or create new policy.

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