April 11, 2025

Update: New Regulation on Alien Registration Requirement Takes Effect on April 11 After Federal Judge Denies Request for Preliminary Injunction

The U.S. Department of Homeland Security (DHS) Interim Final Rule (IFR) requiring non-citizens who remain in the U.S. for 30 days or more — and were not previously registered — to register and carry proof of their registration with them at all times, takes effect on April 11, 2025.

A lawsuit challenging the rule was filed on March 31, 2025 in federal court.  On April 10, 2025, a federal judge denied a request for a preliminary injunction and stay of the effective date of the rule, allowing the Administration to move forward with the requirement.

Individuals Required to Register

  • Non-citizens present in the U.S. for 30 days or more as of April 11, 2025 without registration evidence are required to register immediately. This includes Canadian nationals who enter the United States for business or tourism at a land port of entry, were not issued a Form I-94, and remain in the United States for 30 days or more.
  • Non-citizens entering the U.S. on or after April 11, 2025 without registration evidence are required to register within 30 days of arrival.
  • Non-citizen children turning 14 in the U.S. (even if previously registered) are required to re-register and submit fingerprints within 30 days of their 14th This includes children in temporary visa status (e.g. H-4, L-2), and children who are lawful permanent residents.
  • Parents or guardians of non-citizen children under 14 are required to register their children, if not previously registered, if they remain in the U.S. for 30 days or longer.

Individuals with questions on whether they are required to register or re-register should contact immigration counsel.

Individuals Considered Already Registered

Non-citizens who have already registered include:

  • Individuals issued immigrant or nonimmigrant visas before their last date of arrival;
  • Individuals admitted to the United States as nonimmigrants who were issued Form I-94 or I-94W (paper or electronic);
  • Lawful permanent residents;
  • Individuals issued an employment authorization document;
  • Individuals paroled into the United States;
  • Individuals placed into removal proceedings;
  • Individuals who have applied for lawful permanent residence using Forms I-485, I-687, I-691, I-698, I-700, and provided fingerprints, even if the applications were denied; and
  • Individuals issued Border Crossing Cards.

Individuals Exempted from the Registration Requirement

Exempted from the registration requirement are diplomats and officials in A and G visa status, and certain American Indians born in Canada.

How to Register

Individuals required to register must create a myUSCIS account and submit Form G-325R Biographic Information (Registration) which has been made available for online filing.  Submission of the G-325R Registration in myUSCIS initiates the process for scheduling a biometric appointment at an Application Support Center.  Upon completion of biometrics, “Proof of Alien Registration” with a unique identifier will be created and posted to the applicant’s myUSCIS account.

For individuals who are required to register but for whom fingerprinting has been waived, the “Proof of Alien Registration” will be created upon submission of Form G-325R.

In addition to biographic data for the applicant and their family members (spouse and parents), Form G-325R solicits addresses in the past 5 years, activities since the most recent entry, as well as prospective activities the individual expects to engage in until the expected departure.

At this time, no fee is required for submission of Form G-325R.  However, DHS has solicited public comment on implementing a biometric services fee of $30 per registrant in the future.

Background

Existing immigration law requires non-citizens who remain in the U.S. for 30 days or longer to register, submit fingerprints (unless waived), carry evidence of registration at all times, and notify DHS of a change in address within 10 days of moving.  Historically, these provisions – which originate in the Smith Act of 1940 – have not been enforced, with limited exceptions.

Consistent with the new Administration’s policy of extreme vetting and immigration enforcement to the full extent of the law, the IFR implements a specific mandate from Executive Order 14159, Protecting the American People Against Invasion, of January 20, 2025, which directed the agencies to announce, publicize and enforce the legal obligation of non-citizens to register.

Registration and fingerprinting: All non-citizens age 14 or older who remain in the U.S. for 30 days or longer are required to register and fingerprint (unless waived).  Children under the age of 14 must be registered by their parents/guardians.  Upon turning 14 years of age, children (regardless of whether they were previously registered or unregistered) must register and be fingerprinted within 30 days of turning 14.

Carrying evidence of registration: All non-citizens aged 18 or older must carry evidence of registration at all times.  Evidence of registration includes:

  • Form I-94, Arrival-Departure Record – non-citizens admitted as nonimmigrants; noncitizens paroled into the US under 212(d)(5) of the INA; non-citizens who claimed to have entered prior to July 1, 1924; and non-citizens granted permission to depart without the institution of deportation proceedings;
  • Form I-551, Permanent Resident Card;
  • Form I-766, Employment Authorization Document (EAD);
  • Valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport;
  • Form I-95, Crewmen’s Landing Permit; Form I-184, Alien Crewman Landing Permit and Identification Card;
  • Form I-185, Nonresident Alien Canadian Border Crossing Card;
  • Form I-186, Nonresident Alien Mexican Border Crossing Card;
  • Form I-221, Order to Show Cause and Notice of Hearing;
  • Form I-221S, Order to Show Cause, Notice of Hearing, and Warrant of Arrent of Aliens;
  • Form I-862, Notice to Appear, for those noncitizens against whom removal proceedings are being instituted;
  • Form I-863, Notice of Referral to Immigration Judge, for those noncitizens against whom removal proceedings are being instituted;
  • “Proof of Alien Registration” issued upon submission of Form G-325R and biometrics.

Change of address:   All non-citizens must report their change in address to DHS within 10 days of moving.

Penalties

An individual who willfully fails or refuses to apply to register or be fingerprinted may be fined up to $5000 or imprisoned for up to six months, or both. Non-compliance with the requirement to carry proof of registration at all times and to report a change in address is punishable by a fine of up to $5,000 or imprisonment of up to 30 days, or both. In addition, an individual who fails to comply with the change-of-address reporting requirement may be deportable unless the failure was not willful or was reasonably excusable.

Gibney is closely monitoring these developments and will provide additional updates as they are announced.  This alert is solely for informational purposes and does not constitute legal advice.  If you have questions or require assistance, please contact your Gibney representative or email info@gibney.com.

April 7, 2025

What Student Visa Holders and Employers Need to Know About Recent Student Visa Rescissions and Increased Scrutiny

The Department of State (DOS) has recently increased scrutiny of existing student visa holders and those requesting new student visas at U.S. consulates abroad.

Some F-1 visas and SEVIS records have been rescinded or closed

Secretary of State, Marco Rubio, announced on March 28, 2025 that DOS had rescinded more than 300 F-1 student visas for conduct deemed to have adverse foreign policy consequences or for criminal activity.  Since then, the NAFSA Association of International Educators reports numerous student record terminations in the Student and Exchange Visitor Information System (“SEVIS”) for activities related to campus protests and social media activity deemed contrary to US foreign policy, and for students identified in criminal record checks.

In the event that a student’s visa is revoked, DOS is required to notify the student via the email address used during the visa application process. The student’s Designed School Officer (DSO) is also responsible for notifying the student that their status has been terminated in SEVIS. Students who have received SEVIS termination notifications or DOS notifications of visa revocation should preserve all records, including notifications of termination, academic enrollment records, I-94 record and screenshots from their SEVIS record, and contact immigration counsel to evaluate legal options.

U.S. consulates have received revised guidance for new F, M, and J visa applicants

A cable guidance from Secretary of State, Marco, Rubio advises consular officers to conduct enhanced screening of student visa applicants. Officers are directed to determine if students “intend to travel to the United States to engage in unlawful activities” or activities that are different from what the student claims in their application

Furthermore, consular officers are directed to refer student visa applicants for social media review if:

  • The officer has reason to believe that the student openly advocated for a designated foreign terrorist organization;
  • The student was previously in student status in the U.S. between October 7, 2023 and August 31, 2024; OR
  • The student’s prior SEVIS record was terminated between October 7, 2023 and the present.

What Employers Need to Know

F-1 visa revocations and SEVIS record terminations may have different legal implications for the impacted students’ work authorization (CPT, OPT, STEM OPT).  In the event that an employee in F-1 status notifies their employer that their SEVIS record has been terminated or F-1 visa has been revoked, the employer should work with legal counsel to evaluate options.

Recently filed litigation may prohibit DOS from taking further action

The American Association of University Professors recently filed litigation to halt this program of visa rescission on First and Fifth Amendment grounds. This litigation is currently pending, and no temporary restraining order or injunction has yet been issued.

A second lawsuit has been filed by an anonymous student in California. The student is claiming violations of the Administrative Procedures Act (APA) and the 5th Amendment’s due process clause and is seeking reinstatement of their SEVIS record. Currently, the plaintiff is not asking the court for a broad-based temporary restraining order or injunction.

Gibney will continue to monitor for updates. For more information, contact your Gibney immigration contact or email info@gibney.com.

March 31, 2025

Jack Daniel’s Harmed, but Not Infringed, by Chewy Dog Toy: Key Trademark Takeaways from the Latest VIP Products and Jack Daniel’s Ruling

Jack Daniel’s Harmed, but not infringed, by chewy dog toy

The latest ruling in ‘Bad Spaniels’ finds the whiskey brand’s marks were diluted-but not infringed by a dog toy parody, explain Brian Brokate and Jacqueline Alcantara of Gibney, Anthony & Flaherty.

After more than a decade of litigation including a Supreme Court ruling, the legal battle between VIP Products and Jack Daniel’s returned to the U.S. District Court for the District of Arizona on remand.

On January 21, 2025, Judge Stephen McNamee ruled that VIP’s ‘Bad Spaniels’ dog toy did not infringe Jack Daniel’s trademark but did in fact dilute its trademark and trade dress.

First Amendment Arguments

This dispute began in 2014 when Jack Daniel’s demanded that VIP Products stop selling its Bad Spaniels chew toy, which closely resembled a Jack Daniel’s Tennessee Whiskey bottle but included parodic elements such as ‘Old No. 2 on Your Tennessee Carpet’ instead of ‘Old No. 7 Tennessee Sour Mash Whiskey’.

VIP filed a lawsuit seeking judgment that its toy did not infringe or dilute Jack Daniel’s trademark. The district court initially ruled in favor of Jack Daniel’s, finding that the toy violated the Lanham Act by misleading consumers.

However, the Ninth Circuit Court of Appeals later reversed this decision, concluding that the toy was a form of expressive speech protected by the First Amendment under the Rogers v. Grimaldi standard.

On appeal, the case went to the Supreme Court, which narrowly ruled that First Amendment protections under the Rogers test do not apply when a trademark is used as a product identifier. The court also ruled that the noncommercial exclusion for dilution does not shield parody when the use of a mark is source-identifying. The case was sent back to the district court on remand to determine whether VIP’s toy diluted and/or infringed upon Jack Daniel’s trademark.

Trademark Dilution

Under the Trademark Dilution Revision Act (TDRA), dilution occurs when a well-known mark’s distinctiveness or reputation is likely to be weakened or harmed by another mark. While there are two types of dilution, the court discusses dilution by tarnishment which the TDRA further defines as “association arising from the similarity between a mark and a famous mark that harms the reputation of the famous mark”. In proving tarnishment, Jack Daniel’s must prove that their mark is in fact famous, that VIP’s mark is similar, and VIP’s use of their mark is likely to cause negative associations that can harm the reputation of Jack Daniel’s famous mark.

Jack Daniel’s argued that VIP’s toy tarnished its brand by linking it to dog waste-related humor. The court considered:

  • Jack Daniel’s widespread recognition, including but not limited to having sold millions of cases over decades;
  • The nearly identical design of VIP’s toy, which mimicked Jack Daniel’s bottle shape, font, and color scheme; and
  • The potential negative brand association due to the product’s pet-related parody.

The court ultimately ruled in Jack Daniel’s favor on the dilution claim, determining that VIP’s parody harmed the whiskey brand’s image.

A Clear Parody

To establish trademark infringement, Jack Daniel’s needed to prove distinctiveness, non­ functionality, and likelihood of confusion between the two marks. The court previously ruled as a matter of law that Jack Daniel’s trademarks are distinctive and non-functional, therefore on remand, the district court only focused on ‘likelihood of confusion’. As the Supreme Court ruled, while parody is relevant in assessing confusion, it does not override the Lanham Act when a trademark is used as a product identifier.

Therefore, the district court reviewed other parody-related trademark cases, including Louis Vuitton Malletier v. Haute Diggity Dog. After evaluating parody laws, the court determined that VIP’s toy was a clear parody and not an attempt to mislead consumers into believing it was an official Jack Daniel’s product.

The court applied the Sleekcraft factors to assess likelihood of confusion. While many factors favored Jack Daniel’s, the court ruled that VIP’s intent to parody outweighed them, meaning Jack Daniel’s failed to prove infringement by a preponderance of the evidence.

Key Takeaways

The court ultimately ruled that VIP’s toy diluted Jack Daniel’s trademark by associating it with pet waste humor-however, it did not infringe Jack Daniel’s trademark, as the product was a legally protected parody that did not significantly mislead consumers.

This ruling clarifies the difference between dilution and infringement, demonstrating that parodies may not confuse consumers but can still harm a brand’s reputation. It also signals that companies should be cautious when parodying well-known trademarks, as courts may still find dilution even if there is no infringement.

March 13, 2025

New Regulation on Alien Registration Requirement Takes Effect April 11

The U.S. Department of Homeland Security (DHS) has published an Interim Final Rule (IFR) requiring non-citizens who remain in the U.S. for 30 days or more and were not previously registered to register and be fingerprinted.  The rule will take effect on April 11, 2025.

Individuals Required to Register

The regulation primarily impacts undocumented foreign nationals who are not otherwise considered to be already registered.

In addition, Canadian visitors who enter to the U.S. at a land port of entry and were not issued Form I-94 at admission will be required to register if they remain in the U.S. for 30 days or longer.

Of note, non-citizen children under the age of 14 must apply to register and be fingerprinted (unless fingerprinting has been waived) within 30 days of their fourteenth birthday, even if they were previously registered.  This requirement applies to both children in non-immigrant status (e.g. H-4, L-2) and to children in lawful permanent resident status.

Individuals with questions on whether they are required to register or re-register should contact immigration counsel.

Individuals Considered Already Registered

Non-citizens who have already registered include:

  • Individuals issued immigrant or nonimmigrant visas before their last date of arrival;
  • Individuals admitted to the United States as nonimmigrants who were issued Form I-94 or I-94W (paper or electronic);
  • Lawful permanent residents;
  • Individuals issued an employment authorization document;
  • Individuals paroled into the United States;
  • Individuals placed into removal proceedings;
  • Individuals who have applied for lawful permanent residence using Forms I-485, I-687, I-691, I-698, I-700, and provided fingerprints, even if the applications were denied; and
  • Individuals issued Border Crossing Cards.

Individuals Exempted from the Registration Requirement

Exempted from the registration requirement are diplomats and officials in A and G visa status, and certain American Indians born in Canada.

How to Register

Individuals required to register may submit Form G-325R Biographic Information (Registration) which has been made available for online filing through myUSCIS accounts.  Submission of the G-325R Registration in myUSCIS initiates the process for scheduling a biometric appointment at an Application Support Center.  Upon completion of biometrics, “Proof of Alien Registration” with a unique identifier will be created and posted to the applicant’s myUSCIS account.

For Canadians and children under 14 who are required to register but for whom fingerprinting has been waived, the “Proof of Alien Registration” will be created upon submission of Form G-325R.

In addition to biographic data for the applicant and their family members (spouse and parents), Form G-325R solicits addresses in the past 5 years, activities since the most recent entry, as well as prospective activities the individual expects to engage in until the expected departure.

At this time, no fee is required for submission of Form G-325R.  However, DHS has solicited public comment on implementing a biometric services fee of $30 per registrant in the future.

Background

Existing immigration law requires non-citizens who remain in the U.S. for 30 days or longer to register, submit fingerprints (unless waived), carry evidence of registration at all times, and notify DHS of a change in address within 10 days of moving.  Historically, enforcement of these provisions – which originate in the Smith Act of 1940 – has been inconsistent.

Consistent with the new Administration’s policy of extreme vetting and immigration enforcement to the full extent of the law, the IFR implements a specific mandate from Executive Order 14159, Protecting the American People Against Invasion, of January 20, 2025, which directed the agencies to announce, publicize and enforce the legal obligation of non-citizens to register.

Registration and fingerprinting: All non-citizens age 14 or older who remain in the U.S. for 30 days or longer are required to register and fingerprint (unless waived).  Children under the age of 14 must be registered by their parents/guardians.  Upon turning 14 years of age, children (regardless of whether they were previously registered or unregistered) must register and be fingerprinted within 30 days of turning 14.

Carrying evidence of registration: All non-citizens aged 18 or older must carry evidence of registration at all times.  Evidence of registration includes:

  • Form I-94, Arrival-Departure Record – non-citizens admitted as nonimmigrants; noncitizens paroled into the US under 212(d)(5) of the INA; non-citizens who claimed to have entered prior to July 1, 1924; and non-citizens granted permission to depart without the institution of deportation proceedings;
  • Form I-551, Permanent Resident Card;
  • Form I-766, Employment Authorization Document (EAD);
  • Valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport;
  • Form I-95, Crewmen’s Landing Permit; Form I-184, Alien Crewman Landing Permit and Identification Card;
  • Form I-185, Nonresident Alien Canadian Border Crossing Card;
  • Form I-186, Nonresident Alien Mexican Border Crossing Card;
  • Form I-221, Order to Show Cause and Notice of Hearing;
  • Form I-221S, Order to Show Cause, Notice of Hearing, and Warrant of Arrent of Aliens;
  • Form I-862, Notice to Appear, for those noncitizens against whom removal proceedings are being instituted;
  • Form I-863, Notice of Referral to Immigration Judge, for those noncitizens against whom removal proceedings are being instituted;
  • “Proof of Alien Registration” issued upon submission of Form G-325R and biometrics.

Change of address:   All non-citizens must report their change in address to DHS within 10 days of moving.

Penalties

An individual who willfully fails or refuses to apply to register or be fingerprinted may be fined up to $5000 or imprisoned for up to six months, or both. Non-compliance with the requirement to carry proof of registration at all times and to report a change in address is punishable by a fine of up to $5,000 or imprisonment of up to 30 days, or both. In addition, an individual who fails to comply with the change-of-address reporting requirement may be deportable unless the failure was not willful or was reasonably excusable.

Gibney is closely monitoring these developments and will provide additional updates as they are announced.  This alert is solely for informational purposes and does not constitute legal advice.  If you have questions or require assistance, please contact your Gibney representative or email info@gibney.com.

February 19, 2025

U.S. Department of State Updates Guidance for Visa Interview Waivers at U.S. Consulates: Impact on Nonimmigrant Visa Holders

The U.S. Department of State has announced updated guidance restricting eligibility for nonimmigrant visa interview waivers at U.S. Consulates. Under the revised guidance, nonimmigrant visa applicants may be eligible for an interview waiver if they previously held a visa in the same category and their prior visa expired within the last 12 months or is still valid, among other eligibility requirements. The guidance also provides that individuals applying for visas in certain diplomatic or official government organization visa classifications may be eligible for visa interview waivers.  Visa applicants who do not meet the revised narrower criteria will be required to attend an in-person interview at a U.S. Consulate to apply for their visa.

Prior Policy and What Has Changed

Previously, nonimmigrant visa applicants were eligible for an interview waiver and drop box processing if they held an approved nonimmigrant visa in any category that had expired within the last 48 months. This prior guidance was introduced following the COVID-19 pandemic to reduce consular visa application backlogs and streamline visa application processing.

Under the updated criteria, nonimmigrant visa applicants may be eligible to renew their visas without a visa interview if they meet the following criteria:

  • Apply in their country of nationality or residence;
  • Have never been refused a visa (unless such refusal was overcome or waived); and
  • Have no apparent or potential ineligibility.

The guidance also indicates that consular officers may still require in-person interviews on a case-by-case basis or because of local conditions.

The more restrictive criteria for visa interview waivers are consistent with the directive of “maximum vetting” as announced in the Administration’s Executive Order of January 20, 2025.

Impact on Nonimmigrant Visa Holders

This change will likely increase the wait times for in-person visa appointments at U.S. Consulates worldwide.

The Department of State has not confirmed yet how consular posts will treat interview waiver eligibility for drop box appointments that have already been scheduled, or interview waiver visa applications that are currently pending adjudication. There have been reports that some applicants with scheduled interview waiver appointments who do not meet the updated criteria have been turned away and told to schedule in-person interview appointments instead.

Individuals who have already made a consular appointment under the interview waiver program and whose prior visa was in a different category or expired more than 12 months ago, may be required to schedule an in-person interview.

Prior to travel, individuals that require a new visa stamp to return to the U.S. should carefully review U.S. Consulate websites for more detailed information about visa application requirements and procedures, and the specific U.S. Consulate’s operating status and services.

Gibney is closely monitoring these developments and will provide additional updates as they are announced. If you have questions or require assistance, please contact your Gibney representative or email info@gibney.com.

February 18, 2025

March 2025 Visa Bulletin Released: What Employers Need to Know

The Department of State released the March 2025 Visa Bulletin and USCIS has confirmed they will continue to utilize the Final Action Dates chart for employment-based Adjustment of Status applications. The Final Action Dates chart notes moderate advancement across several employment-based categories including:

  • EB-2 and EB-3 India Final Action Dates will advance by six weeks;
  • EB-2 China Final Action Dates will advance by two weeks;
  • EB-2 Worldwide Final Action Dates will advance by six weeks;
  • EB-3 China Final Action Dates will advance by one month; and
  • EB-3 Other Workers India will advance by six weeks, the Philippines will advance by five weeks, and all other countries will advance by approximately two months.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR FINAL ACTION DATES 

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates  are as follows:

EB-1, First Preference Category

  • EB-1 Final Action Dates across all employment-based categories will hold steady from last month:
    • EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
    • EB-1 China: Final Action Dates will maintain a filing cutoff date of November, 8, 2022.
    • EB-1 India: Final Action Dates will maintain a filing cutoff date of February 1, 2022.

EB-2, Second Preference Category

  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will advance by six weeks to May 15, 2023.
  • China: Final Action Dates will advance by two weeks to May 8, 2020.
  • India:  Final Action dates will advance by six weeks to December 1, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

  • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will maintain a filing cut-off date of December 1, 2022.
  • China: Final Action Dates will advance by one month to August 1, 2020.
  • India: Final Action Dates will advance by six weeks to February 1, 2013.

EB-3 Other Workers

  • Other Workers (including El Salvador, Guatemala, Honduras, and Mexico) will advance by approximately two months to February 1, 2021.
  • Philippines will advance by five weeks to January 15, 2021.
  • China will maintain a filing cut-off date of January 1, 2017.
  • India will advance by six weeks to February 1, 2013.

EB-5: Fifth Preference Category (Immigrant Investors)

  • EB-5 Final Action Dates across all employment-based categories will hold steady from last month:
    • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India will remain unchanged at January 1, 2022 and China will maintain a cut-off date of July 15, 2016. All other countries will remain current.
    • The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As noted in the March Visa Bulletin, modest advancement is observed under Final Action Dates for EB-2 and EB-3 China and India, as well as for EB-2 Worldwide and EB-3 Other Workers by approximately two weeks to two months, depending on the employment-based category and country.

Due to continued high demand for green cards across all employment-based categories, moderate advancement in the visa bulletin is likely to continue in the coming months to ensure efficient visa allocation. As a result, Employers should work closely with immigration counsel to promptly file eligible Adjustment of Status applications, as ongoing backlogs and strong demand are expected to further extend the green card process for many foreign nationals.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

February 6, 2025

Plan Now for FY 2026 H-1B Cap Registration: What Employers Need to Know

U.S. Citizenship and Immigration Services (USCIS) will conduct its annual electronic registration process for the Fiscal Year (FY) 2026 H-1B cap from March 7, 2024 to March 24, 2025.

Employers seeking to register employees in the H-1B cap lottery will need to have an active myUCSIS account, if they do not already have one. We strongly recommend that all employers contact their counsel for assistance, if necessary, in setting up their online accounts. While the account establishment process is relatively simple, employers do need to take care to establish the correct type of account to submit registrations.

As in prior years, employers should start planning for cap registration now by identifying foreign nationals they intend to register for the H-1B cap lottery, and ensuring that they have a properly configured myUSCIS account that it linked to their immigration counsel’s account.

General Overview

  • Cap-subject U.S. employers intending to sponsor foreign nationals for H-1B status must first register each intended beneficiary electronically with USCIS during the cap registration period held in March.
  • The current cap registration fee has been raised and is $215 for each individual registered. The fee is solely for registration of the intended beneficiary.
  • The fee is not refunded if the registration is not selected, and it is not applied to the H-1B petition filing fee if a petition is ultimately filed for a selected beneficiary.
  • The number of registrations submitted are expected to exceed the number of H-1B visas available under the annual statutory quota.
  • There will be a random selection process once the initial registration period closes on March 24.
  • After USCIS conducts the random selection process, it will notify employers and their counsel of selected beneficiaries. Employers may only sponsor H-1B cap petitions for individuals selected through the registration process; no substitution of beneficiaries is permitted.
  • After registration selection, employers will have a 90-day period during which they may file H-1B cap petitions for selected beneficiaries.
  • The 90-day H-1B cap petition filing period is expected to start no later than April 1, 2025.
  • If by the end of the first filing window (which is presumed to be April 1, 2025 through June 30, 2025) USCIS has not received enough H-1B petitions to reach the annual quota, USCIS may conduct a second lottery from the pool of previously unselected registrations. USCIS will then designate subsequent filing periods until all H-1B visas are allocated to reach the annual statutory quota.

Highlights

In completing the registration, employers must identify whether the intended beneficiary qualifies for the H-1B visa pursuant to either the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher in a field of study related to the offered position) or the standard H-1B cap (reserved for individuals holding a Bachelor’s degree or higher in a field of study related to the offered position).

Employers may register multiple individuals at once, using a single online “batch” submission.

Employers may only submit one registration per intended beneficiary in any fiscal year. If an employer registers an individual more than once in the same fiscal year, all registrations submitted by that employer for that individual will be invalidated.

The employer’s authorized legal representative may prepare and submit cap registrations for the employer.

What Should Employers Do Now?

Employers should work with legal counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S., and to take appropriate steps to ensure timely online registration of identified candidates.

  • Potential beneficiaries for H-1B cap registration include, but are not limited to:
  • New hires or candidates outside the U.S. who do not currently hold a valid U.S. work visa
  • F-1 students completing a qualifying course of study or F-1 students currently working in the U.S. pursuant to Optional Practical Training (OPT) or STEM OPT
  • J-1 interns/trainees who are currently working in the U.S. pursuant to a DS-2019 exchange visitor program
  • L-1, TN, E-1, E-2, E-3, O-1, and/or other nonimmigrant visa holders who wish to change to H-1B status in the future
  • Dependent spouses of current nonimmigrant visa holders who may lack work authorization.

Additional Information

Not All H-1B Petitions are Subject to the Cap
Certain individuals and employers are not subject to the annual H-1B cap or cap registration, including:

  • Individuals who currently hold H-1B status and who were previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not again subject to the annual cap. This may include petitions:
    • to extend status for current H-1B visa holders;
    • to amend H-1B status due to changes role or location changes for current H-1B workers;
    • to change H-1B employers; and,
    • for concurrent H-1B employment with an additional employer.
  • Individuals who are citizens/nationals of Singapore and Chile may instead be eligible for the H-1B1 visa.
  • Cap exempt organizations. H-1B cap petitions filed for employment at institutions of higher education or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations, are cap-exempt. H-1B petitions for employment at these institutions are not subject to an annual quota and may be filed any time throughout the year.

H-1B Categories and Annual Quotas

Cap-subject H-1B petitions generally fall within two categories:

“Standard” petitions. The minimum educational requirement for a standard H-1B petition is a Bachelor’s degree or professionally evaluated experience equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.

“Advanced degree” or “Master’s cap” petitions. The minimum educational requirement for an advanced degree H-1B petition is a Master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

As a reminder, employers will need to establish a registrant account with USCIS, which will need to be linked to an organizational account maintained by their counsel (presuming they are registering with the assistance of an attorney). Please contact immigration counsel now to ensure you are well-positioned for H-1B cap season.

Gibney will provide additional updates as they are announced. In the interim, additional information is available on the USCIS website here.  If you have questions about H-1B cap or if you require assistance with cap registration, please contact your Gibney representative or email info@gibney.com.

February 3, 2025

President Trump Signs Laken Riley Act into Law: What This Means for Immigration Enforcement

On January 29, 2025, President Donald Trump signed the Laken Riley Act, which substantially widens the government’s authority with respect to immigration enforcement.

The Law

The new law institutes two separate changes into the immigration enforcement scheme in the United States:

  • Providing for the detention of any undocumented foreign national who is arrested for, convicted of, or admits to: burglary, theft, larceny, shoplifting, or assault of a law enforcement officer, or any crime that results in death or serious bodily injury to another person; and,
  • Giving state Attorneys General the right to sue the United States under certain circumstances if he or she believes that certain immigration laws are not being sufficiently enforced.

What to Expect:

  • Undocumented individuals will be detained at the local, state and federal levels for all theft crimes, including shoplifting;
  • States may sue the federal government for not sufficiently enforcing immigration laws, particularly those, regarding exclusion and deportation. Additionally, they may sue the government in the event that it fails to suspend visa issuance for countries that refuse to take in deported individuals. As we saw a suspension of visa issuance in Colombia this week for this very reason, we can likely expect this to be an immediate consequence of any foreign country which refuses to accept deported individuals;
  • Countries that resist repatriation of deported migrants are classified by Immigration & Customs Enforcement as “recalcitrant (https://www.ice.gov/remove/visa-sanctions)” countries. In a letter dated July 11, 2024 (https://roy.house.gov/sites/evo-subsites/roy.house.gov/files/evo-media-document/Recalcitrant_Countries_243%28d%29_Letter_FINAL.pdf), to the Department of Homeland Security, seventeen members of the House of Representatives identified the following countries as “recalcitrant,” and, thus, potentially subject to suspension of visa issuance: People’s Republic of China, Bhutan, Burundi, Cambodia, Cuba, Eritrea, Hong Kong, India, Iran, Iraq, Laos, Pakistan, and Russia as recalcitrant countries.10 Additionally, ICE considers Afghanistan, Algeria, Azerbaijan, Burma, Ethiopia, Gambia, Israel, Jordan, Mauritania, North Macedonia, Samoa, Sierra Leone, South Sudan, Tonga, Ukraine, Vietnam and Yemen

For more information, please contact your Gibney representative or email info@gibney.com.

January 24, 2025

USCIS Waives COVID-19 Vaccination for Adjustment of Status Applicants

Effective January 22, 2025, USCIS will no longer require Adjustment of Status applicants to obtain a COVID-19 vaccination as part of the Adjustment of Status process. USCIS will waive all requirements that Adjustment of Status applicants have received the COVID-19 vaccination previously required on Form I-693, Report of Immigration Medical Examination and Vaccination Record. USCIS has confirmed that they will not issue a Request for Evidence or Notice of Intent to Deny and will not deny any Adjustment of Status application based on the applicant’s failure to present documentation confirming receipt of the COVID-19 vaccination.

While USCIS has not provided a specific reason for this policy change, it likely aligns with evolving public health guidelines, including updated assessment of public health risks and vaccination coverage, as well as the current status of the COVID-19 pandemic.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

 

January 23, 2025

Trump Administration Issues Immigration Executive Orders

The Trump Administration executed a number of Executive Orders related to immigration in its first day. These orders include a return to the “extreme vetting” policy of the previous Trump administration, limitations on refugee and asylum policy, changes to border enforcement measures, and an order attempting to limit birthright citizenship guaranteed by the United States Constitution. Unlike the first Trump Administration, an immediate travel ban was not implemented. However, federal agencies were ordered to make recommendations on travel restrictions in the coming weeks.

Extreme Vetting and Travel Restrictions

The Trump Administration’s order on enhanced security screenings requires agencies across the federal government to work to ensure that foreign nationals seeking to enter the United States, and those already present, “are vetted and screened to the maximum degree possible.” It also requires federal agencies to compile a list of countries where “vetting and screening information is so deficient as to warrant a partial or full suspension on the admission of nationals from those countries.” Nationals of the identified countries may then be subject to entry restrictions, travel bans or even deportation/removal.

Birthright Citizenship

This order attempts to withhold U.S. citizenship from children born in the United States after February 19, 2025 if:

  1. The child’s mother is unlawfully present in the United States and the father is not a U.S. citizen or U.S. permanent resident; OR
  2. The child’s mother is lawfully, but temporarily, present in the United States and the father is not a U.S. citizen or U.S. permanent resident. Temporary statuses include B-1, B-2, F-1, H-1B, L-1, TN, O-1, and others.

The Executive Order instructs federal agencies to cease issuing documents, including passports, recognizing the U.S. citizenship of children born under the conditions above starting February 19, 2025. These impacted children may need to secure dependent nonimmigrant status to lawfully remain in the United States.

Contrary to the Executive Order, the U.S. Constitution guarantees citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” An Executive Order cannot override or modify the Constitution.

Accordingly, a federal judge in Seattle temporary blocked the Executive Order from going into effect the morning of Thursday, January 23rd. Similar lawsuits challenging this order have been brought in federal court by the American Civil Liberties Union (ACLU) and Attorneys General from 22 other states.

Refugees, Asylum and Immigration Enforcement

Various Executive Orders signed by the Trump Administration serve to severely restrict immigration, including the admission of asylees and refugees, as well as prioritize the prosecution and/or removal of those here illegally.  Examples of the actions outlined in the Executive Orders include: the effective “pause” of refugee admissions for at least three months, during which time federal agencies are directed to make recommendations as to whether the admission of refuges is in the nation’s best interests; requiring asylum seekers at the southern border to await asylum proceedings in Mexico, regardless of their country of origin; and the revocation of certain humanitarian immigration programs.  With regard to immigration enforcement, the Executive Orders directs federal agencies to prioritize removal and/or prosecution of those who have entered the United States illegally or who are unlawfully present.  These orders also revoke Biden-era orders directing the government to address the “root causes of migration” and prioritizing the reunification of families separated by the first Trump administration.

Others

The Administration has also issued orders that direct federal agencies to review trade regulations, limit federal recognition of gender identity, including for identification documents such as passports and visas, and declare the immigration situation at the southern border to be a “national emergency,” thus allowing the Administration to deploy military forces and resources.