New Visa Bulletin, New Possible Backlogs

DOS released the March 2023 Visa Bulletin a couple days ago and has indicated that new possible backlogs could be down the road and also appeared to remove some possible backlogs as well.

First, last month the Department of State indicated that the Family Based 2A category (spouses and minor children of Permanent Residents) had the possibility of backlogging as soon as this month. Well, this month came, and it did not backlog. In addition, this month, there was no indication that the category is in trouble of backlogging in the future. This would lead me to believe that this category should stay current for the foreseeable future.

Second, as we reported previously, the Employment-Based Second Category (which includes employer-sponsored applications for those with a Master’s Degree or higher as well as National Interest Waiver applications) is backlogged for all countries and has been so since December 2022. In this month’s bulletin, the DOS states as follows:

Since December 2022, there has been higher than expected number use and demand, mostly due to continued new filings by applicants from all countries with priority dates earlier than the established final action dates. This will necessitate corrective action in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit.  This situation will be continually monitored, and any necessary adjustments will be made accordingly.

This means there is now little hope of the EB-2 category coming current or moving forward until at least October 1, 2023, when the new government fiscal year begins.

Third, the DOS is now indicating that the Employment-Based Third category (employer-sponsored cases for those positions that require a Bachelor’s degree, two years of experience, or are considered unskilled labor) may become backlogged in the near future. The DOS stated:

Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

Other than the above, most categories did not have any changes in terms of dates. The only exceptions are Employment-Based Category 4 (special immigrants and religious workers) and the Employment-Based 5th preference for India (Investment green card) – which backlogged almost another year.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult a lawyer instead of a blog. Thank you.


Education Spending, Social Security and Immigration

In looking at news reports over the last several weeks, several jumped out at me. A couple discussed immigration and social security, and several more discussed immigration and education spending. These are two very different issues, but both are being impacted by immigration – both those coming with documentation and those coming without.

First, in terms of those coming to the US with documentation. In terms of the article on Education spending, that is not really addressed because, according to the article, those people are paying taxes, etc., so they are paying for their educational costs. Regarding social security, immigrants coming to the US on valid non-immigrant and immigrant visas are helping to keep our Social Security system solvent. Why is that? According to the article in the Motley fool:

Most people legally migrating to the U.S. tend to be younger, which is an extremely important point. These are people who will spend decades in the labor force contributing to Social Security via the payroll tax. The 12.4% payroll tax on earned income (wages and salary) was responsible for providing approximately $981 billion (90.1%) of the $1.088 trillion in revenue Social Security collected in 2021. 
The intermediate-cost model in the 2022 Trustees Report — the “intermediate-cost model” is what the Trustees view as the outcome likeliest to happen — is based on average annual total net immigration of 1,246,000 people.  Between July 1, 2012, and June 30, 2017, fewer than 955,000 total net migrants entered the U.S. annually, according to data from the World Bank.  If net migration into the U.S. continues to fall, or even steadies at these reduced levels, it’s all but a certainty that Social Security’s funding shortfall will grow.

Motley Fool, January 28, 2023

As can be seen, immigrants to the US, in general, are younger, thereby providing more productive years in which they are earning taxes and paying into the system. And in fact, the lowering levels of immigrants being allowed in legally is HURTING our ability to fully fund Social Security.

What about those coming in without documentation? Surely they are costing us more money? The answer is not relatively that easy. In terms of education, because of a Supreme Court case from 1982, Plyer V. Doe, 457 U.S. 202, ALL children are eligible for free public education, including those without documentation. So States are required to spend money to educate those who come to the US and are age-eligible for public education (under the age of 21). How much does this cost? It is difficult to figure out exactly, but looking at the figures that The Hill used in a recent article, here is what it comes out to:

The Pew Research Center says that the number of illegal immigrants expelled under Title 42 – which allows the government to expel immigrants during a public health emergency – declined during 2022, from about 50 percent to about a third. That would leave some 1.5 million.

There was another estimated 600,000 who avoided border patrol in 2022, for an estimated total of 2.1 million new undocumented immigrants living in the country.

If we use TRAC’s estimate of 37 percent being children, that’s about 777,000. Of course, not all of them are school age. If we subtract, say, a third of them for being too young to enter public school, that leaves us with about 513,000 school-age children.

Multiply that times the average cost of a public education, $14,840, and that equals about $7.6 billion in new public education costs for just one year’s worth of undocumented children. And while the migrants have spread out across the country, a relatively small number of states and cities must cover most of those costs. 

The Hill, 1/31/2023

While the article goes on to say that the adults who come over without documents will eventually work, maybe, and equivocate about whether they can legally work or will work, the article does present a stark picture of approximately $7.6 billion in additional costs every year. Again, however, this is not the full picture. While those who ENTERED this year may not be able to contribute immediately, there are other people in the US without documentation – how much do they contribute? Well, again, according to the Motley Fool article:

What’s more, a study from New American Economy showed that undocumented workers contributed $13 billion in payroll tax revenue in 2016. These undocumented workers either used a friend’s or family member’s Social Security number to obtain work, or their employer failed to properly vet the worker. Either way, more than 1% of Social Security’s annual revenue derives from undocumented workers, yet not one cent of benefits from traditional Social Security will be returned to these workers.

Motley Fool

So while there may be $7.6 billion in education costs a year, there is $13 billion in payroll taxes – which more than covers those costs. In addition, our Social Security system is receiving 1% of its annual revenue from these sources, and these are people who will never see any of that social security money.

As stated at the beginning of this article, it is tricky to look at the costs and benefits of immigration, either for those who come with documentation or those who come without documentation. But overall, almost every study has shown that there is a net benefit not just to those who come over with the correct papers but also to those who have entered without documentation. Hopefully, someday, our politicians will look at our immigration system and how much it is hurting our economy and our society and start making policies based upon that instead of the current climate of scare politics being used to frame the immigration debate.

USCIS Proposed Huge Fee Increases

Earlier this month USCIS issued a proposed rule increasing prices of filing fees for an assortment of employment-based and other applications. Before discussing the actual increases, it is essential to remember that, as of now, this is a PROPOSED rule, not a final rule. There will be a 60-day comment period, and then USCIS will have to review and process comments and then issue a final rule. All this means that any increases will not be effective until probably around July or August this year (maybe in June).

While I cannot go through all the increases, I think some examples will be helpful. First, for employer-sponsored applications: the H-1B application fee will increase from $460 to $780, while the L-1A application fee will increase to $1385 and the O-1 cost to $1085; In addition, the H-1B registration fee will increase from $10 to $215; Lastly, there will be a new “asylum” fee for all I-129 and I-140 filings of $600.

According to an article by SHRM

Under the proposed rule, employers hiring high-skilled foreign nationals will pay 70 percent more for beneficiaries on H-1B petitions, 201 percent more for employees on L-1 petitions and 129 percent more for individuals on O-1 petitions

Stuart Anderson, executive director of the National Foundation for American Policy, a public-policy research organization based in Arlington, Va

In terms of individual filings: The combined fee for the I-485, I-765, and I-131 will rise from $1225 to $2820, and, in addition, you will have to repay the I-765 and I-131 fee to renew those applications.

While it is clear that USCIS needs additional funding, the last fee increases were in 2016, almost 8 years ago, and the current increases pretty out of line with previous increases. For example, the increases in 2016 raised by approximately 21% (weighted average across all applications) – the currently proposed increases will raise fees by 40% (again, as a weighted average). Not only will this hurt individuals applying for benefits, especially those with large families (imagine a family of 4 applying for adjustment of status (and for work and travel permission) spending $11,280 in USCIS fees alone – that is cost prohibitive for many families, it will also hurt businesses and could affect broader economy.

If employers decide it is not worth the expense to sponsor immigrants or cut back on sponsorships, that will, again, hurt those individuals. However, considering we are already in a time of employee shortages, and many companies are already understaffed, especially in white-collar jobs, it could affect our economy, could make it take longer to come out of recession if we do go into one, and affect the ability of companies to compete, forcing more to move overseas.

In an article from SHRM, a talent acquisition company, they state

Experts believe that the proposal could be a barrier to employers in need of foreign labor while failing to address the root inefficiencies in visa processing, which continue to worsen.


We are hoping that USCIS moderates the fee increases and that, perhaps, Congress will get together and perhaps agree to allocate money to USCIS to help alleviate some of their issues as opposed to them having to get all their fees via user fees.

We will update you as this rule progresses through the process.

USCIS Expands Premium for ALL NIW applications and EB-13 Applications

Today USCIS announced that it would expand premium processing for National Interest Waiver application to ALL pending and ALL initial applications starting January 30, 2023. To remind you, premium processing for the National Interest Waiver (or the EB13) costs $2500 and USCIS will process the application within 45 calendar days.

It is important to ensure that if you are going to use premium processing for these two applications that the form and fee do NOT reach USCIS prior to January 30, 2023 or it will be rejected.

In addition, USCIS also indicated that it would be expanding premium processing first to students seeking OPT or a STEM OPT extension and whose applications are already pending. This will happen in March. In April, it will expand to all pending and initial applications for OPT and STEM OPT. Then in May, it will extend to I-539s filed by those seeking student status (F-1) or exchange visitor status that are currently pending. Lastly, it will expand to initial I-539s filed by those seeking student status (F-1) or exchange visitor status in June of this year. We will, of course update you as soon as we hear of any additional expansions.

Can we afford to not reform our immigration system?

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While reviewing immigration news this week, two articles jumped out at me. Both were about the importance of immigration to the US economy.

The first was in Yahoo! Finance and reported on a press briefing by the Secretary of Labor on the November Job Numbers. During this briefing, he (the Secretary) first highlighted the fact that there was overall growth in job levels and well as in average hourly earnings, but that the unemployment rate remained quite low, at 3.7%. According to the Secretary, this showed that the current US Immigration system, allowing only a very limited number of skilled workers in every year, is a threat to our economy. (Link to article here). The Secretary also noted, that during his travels across the country, while talking to businesses, he repeatedly heard that businesses are desperately looking for employees and cannot find them. Considering there are approximately 10.3 million open jobs in the US, many for skilled worker, it is no wonder that they cannot find employees and no wonder that they are very in favor of immigration reform.

In addition to showing the need to fix our broken immigration system, these numbers also showed that, as of yet, there was no rush of US Citizens looking for employment once pandemic restrictions eased and people started going back to acting normally, which economists thought could happen and would ease the current employee crunch.

The second article discusses a speech given by the Federal Reserve Chairman, Jerome Powell at the Brooking’s Institute , in which he touched on the state of our economy, immigration, and the potential for a recession. It quotes Mr. Powell saying:

The truth is that the path ahead for inflation remains highly uncertain. For now, let’s put aside the forecasts and look instead to the macroeconomic conditions we think we need to see to bring inflation down to 2 percent over time.

In the labor market, demand for workers far exceeds the supply of available workers, and nominal wages have been growing at a pace well above what would be consistent with 2 percent inflation over time. Thus, another condition we are looking for is the restoration of balance between supply and demand in the labor market.

The second factor contributing to the labor supply shortfall is slower growth in the working-age population. The combination of a plunge in net immigration and a surge in deaths during the pandemic probably accounts for about 1-1/2 million missing workers.

Jerome Powell

When looked at together, both these articles paint a strong economic argument for everyone to be in support of immigration reform and expanding our current immigration system. Instead of hurting our economic situation, immigration helps. Study after study has shown this, and these two prominent government officials are simply stating the obvious at this point – in order to keep from sliding into more of a recession we need to reform immigration now.

EB-2 Backlogs for All Countries as of December 1, 2022

The December 2022 Visa Bulletin was released today. In the new bulletin, the Department of State has determined that the EB-2 category needs to be backlogged somewhat because of demand. As a reminder, the EB-2 category includes employer-sponsored applications for positions that require an Advanced Degree (Master’s or higher degree) as well as the National Interest Waiver (NIW) self-sponsored applications.

As of December 1, 2022, the FINAL ACTION DATE for all EB-2 cases will be November 1, 2022. This means that only those I-140 EB-2 applications filed prior to November 1, 2022, would be able to have their Adjustment of Status application (I-485) approved (assuming that you had already filed the adjustment of status before December 1, 2022).

As of December 1, 2022, the DATE FOR FILING will be December 1, 2022. USCIS has indicated that it is using the Dates for Filing in December – this means as long as you filed the I-140 before December 1, 2022, you can file your I-485 at that point. However, every month USCIS re-looks at which table it should use to determine filing dates. USCIS decides between allowing people to file the I-485 based upon the Dates for Filing OR the Final Action Dates, and we do not know, as of yet, if, after December, USCIS will continue to use Dates for Filing or not. We will update you as we find out.

The above means that, as of December 2, 2022, there will no longer be ANY concurrent filing of the I-140 NIW and the I-485 allowed. This applies to everyone, regardless of where you were born, and this is a major change for everyone on very short notice. Please contact us if you need more information or help to file quickly.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult a lawyer instead of a blog. Thank you.

Immigration, Points and Canada – Would a Canadian-like System work in the US?

Forbes recently published an excellent article looking at efforts to reform the US Immigration system and make it more like the Canadian system. For those who are not familiar with the Canadian system, they have a point-based system designed to bring in those with skills needed in Canada. In addition, Canada has steadily been INCREASING the number of immigrants it allows in, from 405,000 this year to 500,000 in 2025. They project that 100% of their labor force growth in Canada has come from Immigration.

In the US, Senator Tom Cotton, a Republican from Arizona, proposed changing the US System into a point-based system as well. There are several issues with his proposal, however.

First, unlike Canada, we have a divided Executive and Legislative branch. Why is this important? Because, any changes to such a point system would require the Legislative branch to change the law, which is a slow and cumbersome process. While it is possible to make the system adaptable by the Executive branch, it is hard to imagine that either the Democrats or Republicans would agree to this. Unfortunately, both sides would be afraid that if the other side controlled the Executive branch, they would use such flexibility to either limit immigration or expand immigration. In Canada, having a parliamentarian system, they can affect changes to the point system quite quickly in order to reflect what is happening in Canada and the world. According to the article:

While Canada’s structure allows for relatively quick adjustments in point criteria, that is unlikely to happen in the United States. Instead, Congress would pass a law and set qualifications that might not change for decades. Ceding greater authority to an immigration bureaucracy would be unlikely to work, since it can take many years for a federal agency to enact a regulation and enact changes. 

In Canada, (permanent) immigrants for employers often first work for Canadian employers on temporary visas, similar to the U.S. transition from H-1B status to an employment-based green card. The difference is that Canada awards points for age, language, schooling and work experience in Canada and grants permanent residence each year to those who achieve sufficient points. The system has evolved and been adjusted so that employers can retain highly skilled employees. Another key feature: Canada allows provinces to select immigrants based on unique regional needs, something U.S. point system advocates generally have not favored.

Stuart Anderson, Forbes Magazine

Secondly, the Act proposed by Senator Cotton would also eliminate Family-based immigration, thereby lowering immigration overall. This lowering of immigration would not, as Senator Cotton has stated, spur economic growth. It would, in fact, do the opposite.

Cotton and Purdue made what economists would consider a contradictory argument for their bill. The senators argued their legislation would “spur economic growth” while “reducing overall immigration by half.” However, reducing immigration would lead to lower economic growth, not “spur” it. Joel Prakken, senior managing director and co-founder of Macroeconomic Advisers, estimated a 50% reduction in legal immigration would lead U.S. economic growth to decline by 12.5% from its projected levels.

Stuart Anderson, Forbes Magazine

As reported in previous blog posts, this is supported by multiple studies as well. Immigration is one of the driving factors of our economy, and growing our labor pool is one sure way of growing our economy overall.

Overall, it would be ill-advised for the US to move towards such a system, as our government is not as quick and flexible in changing laws as the system in Canada. In addition, the act pushed by Senator Cotton would hurt our economy, which is already in pain. The Senator would be better off listening to economists and working on ways to improve our current system and increase immigration so that we can help our economy grow. Increasing the number of employment-based green cards and H-1B visas would be one way to affect such a change.

For the full article, please go to: This Link

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Attention Students: US Department of Education withdraws certification of ACICS as an accrediting institution

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On August 19, 2022, the Department of Education announced that it would no longer recognize the  “Accrediting Council for Independent Colleges and Schools” (ACICS) as an accrediting agency.

This  will affect Immigrants in several ways, depending on where they are in their course of study.

First, for those still in school, either an English Language Program or a University or College program, these schools formerly accredited by ACICS will no longer be able to process extensions of status, and students will only be allowed to finish their current session IF the school voluntarily withdraws its certification or allows SEVP to remove it.  HOWEVER, if the school can provide evidence of an ED-recognized accreditation or evidence in lieu of accreditation within that allotted timeframe, all students may remain at the school and complete their course of study.

Second, for those students seeking a STEM extension, because the school must be accredited at the time the DSO signs the eligibility for the STEM extension on the I-20, only cases that have been filed in which the DSO signed the I-20 before August 19, 2022 will be approved.  Those who applied after that day who are at schools formerly accredited by ACICS will be denied, and the student will only have a 60-day grace period in which to fix their status or leave the US.

Third, for those students who have already graduated, as the school has lost its accreditation (assuming it had no other accreditations), the degree is no longer considered a valid US Degree for either H-1B advanced degree purposes or for purposes of the EB-2 Advanced Degree category.  However, according to USCIS, this will ONLY apply to degrees issued on or after August 19, 2022 – degrees issued before that date, while the College was still accredited, will still be valid for these applications.

Lastly, if the College has no other accreditation, it would also not qualify under the H-1B cap exemption for institutes of higher education; it would no longer be able to file for such cap-exempt H-1Bs (nor would it be exempt from the ACWIA fee either).

This move by the Department of Education dramatically impacts immigrants, especially those in F-1 status currently and, because of its immediacy, it is something you should take action on immediately if you are one of those affected.  If you wish to search to see if your school was impacted (although you should be getting a notice from SEVIS), you can use this website to do so:

Please contact us with any questions or if you were affected by this de-certification and need assistance maintaining your status.

Please remember, as always, this blog does not offer legal advice.  If you need legal advice, consult a lawyer instead of a blog.  Thank you.

EB-2 Worldwide Numbers May Become Backlogged In The Coming Months

The Department of State, in the November 2022 Visa Bulletin, included the following in its list of possible future changes in the visa bulletin:

Increased demand in the Employment Second category may necessitate the establishment of a worldwide final action date in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

Unfortunately, this means it is very likely that the EB-2 category (which includes employer-sponsored immigrant visas for those with a Master’s Degree or higher and those filing a National Interest Waiver) will backlog in the coming months. We do not know precisely when, and most likely, it will not be until the beginning of next calendar year, but we will have to keep a close eye on the visa bulletin in the coming months.

One point of interest is that DOS indicates that the “final action date” may retrogress. This could mean that the “dates for filing” date could remain current. It would then be up to USCIS to determine which dates they will use to allow the filing of the I-485. For those who may not remember, or be familiar with, the different dates used by the DOS: The “final action dates” table lists the dates for each immigrant visa type for which an immigrant visa is available (this date needs to be current for the I-485 or consular processing case to be approved); The “dates for filing” table lists the dates for each immigrant visa type for which the Department of State thinks that the “final action date” will be at within the next 6-12 months (it is the table used by the Department of State to determine when to begin the consular processing part for each case type). Each month USCIS indicates which table it will use to determine if a potential immigrant can file an I-485 application in a particular immigrant visa category.

If the EB-2 Worldwide numbers do retrogress (and remember, right now, this is just a warning from DOS, not a sure thing), it would also have an impact on the EB-2 numbers for China and India, considering that they will not be able to use any unused numbers from the worldwide visa numbers to help keep those dates where they are, or progress them. It may mean that those countries’ dates retrogress even further.

Those looking at filing an I-485 based on their EB-2 filing or approval should do so as soon as possible to ensure that they will not be locked out of filing the I-485 by retrogression. If you have questions or would like to set up an appointment with us to discuss the filing of the I-485 in your case, please use the following link:

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Third Phase of Premium Processing Expansion Underway

On September 15, 2022, USCIS launched the third phase of expanding its premium processing service. For those who do not recall, premium processing allows you to pay USCIS more money for them to process your case faster than usual. Premium processing is only available for certain cases and, until earlier this year, was NOT available for the National Interest Waiver cases (EB-2) or the Multinational Executive and Manager category (EB-13).

The first phase expanded premium processing first to EB-13 cases on June 1, 2022 (only for EB-13 cases filed on or before January 1, 2021), then to EB-2 NIW cases on July 1, 2022 (only to EB-2 cases filed on or before June 1, 2021) as well as expanding the EB-13 cases covered to those filed on or before March 1, 2021.

Phase 2 started on August 1, 2021, and expanded the NIW cases allowed to use premium processing to those filed on or before August 1, 2021, and for EB-13 cases, to those filed on or before July 1, 2021. Small changes, but at least forward movement consistently.

Phase 3 began as of September 15, 2022, and saw expansion to NIW cases filed on or before February 1, 2022, and to EB-13 cases filed on or before January 1, 2022. This seven-month jump was a much more significant jump in terms of cases allowed and hopefully means we may be close to full implementation of premium for these cases (meaning that you can ask for a case you are currently filing to use premium processing). In addition, we are still waiting to hear when USCIS will allow premium processing for other benefits, such as I-765 Applications for Work Authorization.

Before anyone rushes out to use premium processing, there are a few things to remember. First, it is an additional $2500 fee to use premium for any I-140 application. Second, premium processing is not always a smart thing to use. Premium processing has been available for the EB-1A extraordinary ability application for many years now. While usually, that process is ok to use and the result of the application (approval, denial, whether a request for evidence is issued) is the same as using the normal process, there are times when that is not the case. In fact, for about a year now, premium cases for extraordinary ability applications have been very uneven. Some officers send out requests for evidence and denials on such cases at a much higher rate than usual, but not all officers. This type of behavior leads to extremely varied outcomes for similar cases. And this happened previously several years ago as well. It usually straightens itself out over time but then, at some point, pops up again.

Unfortunately, because premium processing for National Interest Waiver cases has been around for a very short period, we do not have a clear idea if it will affect those cases similarly. It may be wise for people with less-than-ideal cases to not use premium until more information is available and we have a better idea of how cases are adjudicated. For those with long pending, solid cases, however, this may be helpful to get your case adjudicated quicker.

If you wish to utilize premium on your currently pending case, please use the following link to set up an appointment so we can discuss your case:

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.