Dear Clients and Colleagues,

We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:

USCIS Reaches FY2024 H-1B Cap

We are informing our clients that the United States Citizenship and Immigration Services (USCIS) has announced the fulfillment of the congressionally mandated cap for the H-1B visa program for the fiscal year 2024. 

This includes the regular cap of 65,000 visas and the advanced degree exemption, known as the master's cap, of 20,000 visas. USCIS will issue non-selection notifications to registrants' online accounts in the coming days. Employers and beneficiaries who have not been selected should consider alternative visa options.

USCIS Adjustment of Status Filing Dates for January 2024

For January 2024, USCIS has instructed that all applicants for adjustment of status in family-sponsored and employment-based preference categories refer to the Dates for Filing chart in the Department of State Visa Bulletin. This impacts both family-sponsored and employment-based adjustment applications and should be carefully reviewed for eligibility requirements.

January 2024 Visa Bulletin Highlights:

Significant movements are noted in the January 2024 Visa Bulletin, particularly for EB-1 and EB-5 categories for India. Most other employment-based categories are also experiencing strong forward movement. USCIS will accept employment-based adjustment of status applications from foreign nationals with a priority date earlier than the Dates for Filing listed in the Visa Bulletin.

The U.S. DOS issues visa bulletins each month (usually a few weeks in advance), and based on the particular visa bulletin, USCIS will confirm whether it is accepting adjustment applications based on the final action dates chart (a green card number is available, and a final decision can be made on the application) or dates for filing chart (a green card number is either available or likely to become available in the near future, and the application can be accepted for processing, although subject to green card number availability). 

USCIS Guidance on Family-Based Conditional Permanent Residence

On December 12, 2023, USCIS issued updated policy guidance regarding Form I-751, Petition to Remove Conditions on Residence. This update is crucial for individuals seeking waivers based on battery or extreme cruelty, as well as for those whose conditional permanent resident status is terminated for failing to timely file Form I-751.

Change in Filing Location for Form I-907 for Pending Form I-140

Starting December 15, 2023, USCIS is transitioning the filing location for Form I-907, Request for Premium Processing, for pending Form I-140, Immigrant Petition for Alien Workers, from service centers to designated USCIS lockboxes. It's important to note that as of January 14, 2024, USCIS will reject any Form I-907 for a pending Form I-140 received at the old service center addresses. This change is crucial for those seeking expedited processing of their pending I-140 petitions.

DHS Extends TPS Re-Registration Periods for Specific Countries

The Department of Homeland Security (DHS) has extended the Temporary Protected Status (TPS) re-registration periods for nationals of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. The extension is now for the full 18-month designation extension period of each country. This notice, published on December 14, 2023, provides additional time for eligible nationals to maintain their status.

Understanding the Ability to Pay Requirement in I-140 Immigrant Visa Petitions

The ability to pay in an I-140 petition, which is part of the U.S. immigration process, is a requirement that an employer must meet when sponsoring a foreign national for an employment-based permanent residency (also known as a green card). Essentially, the employer must demonstrate to the United States Citizenship and Immigration Services (USCIS) that they have the financial capacity to pay the offered salary to the foreign worker.

To prove the ability to pay in an employment-based immigrant petition, such as the I-140, the sponsoring employer needs to provide sufficient documentation to the United States Citizenship and Immigration Services (USCIS). Here are the common types of evidence used to demonstrate the ability to pay:

1. Annual Reports, Financial Statements, or Profit/Loss Statements: These documents should show the company's overall financial health and profitability. They provide a snapshot of the company's ability to sustain its financial obligations, including employee salaries.
2. Federal Tax Returns: Official tax returns can demonstrate the company's revenue and net income, which are indicators of its financial viability.

3. Audited Financial Statements: If available, these provide a more detailed and verified view of the company's financial status. They are particularly persuasive if prepared by an independent and reputable accounting firm.

4. Payroll Records: Proof that the employer has been consistently paying the proposed wage or higher to similarly employed workers, including the beneficiary, if already employed by the petitioning employer.

5. Net Current Assets: Sometimes, USCIS accepts evidence showing the employer's net current assets as a demonstration of the ability to pay. This is particularly relevant for smaller or newer companies that may not have extensive financial histories.
6. Letter from a Financial Officer: A letter from the company's financial officer, detailing the financial capacity to pay the offered wage, can be helpful, especially when accompanied by relevant financial documentation.

7. Employment Contracts or Pay Stubs: If the beneficiary is already working for the employer, pay stubs, W-2 and employment contracts showing that the beneficiary is already receiving the offered wage can be compelling evidence.

It's important to note that the ability to pay must be demonstrated from the priority date of the labor certification or the I-140 petition if labor certification is not required, and it must continue until the foreign worker obtains permanent residency. The evidence should be clear, convincing, and consistent with the overall petition. The USCIS evaluates this information closely to ensure that the employer is genuinely capable of fulfilling the financial commitments associated with sponsoring a foreign worker for permanent residency.

We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.

Sincerely,

Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.