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.

January 23, 2025

February 2025 Immigration Visa Bulletin Released: What Employers Need to Know

The Department of State released the February 2025 Visa Bulletin and USCIS has confirmed they will accept the more modest Final Action Dates chart for employment-based Adjustment of Status applications. The Final Action Dates chart notes slight advancement for EB-2 and EB-3 India by two weeks, as well as forward movement for EB-3 China by one month. All other employment-based categories will continue to hold steady for February.

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 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 continue to hold steady at April 1, 2023.
  • China: Final Action Dates will remain at April 22, 2020.
  • India:  Final Action dates will advance by two weeks to October 15, 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 July 1, 2020.
  • India: Final Action Dates will advance by two weeks to December 15, 2012.

Other Workers

  • Other Workers (including El Salvador, Guatemala, Honduras, Philippines and Mexico) will remain at December 8, 2020.
  • China will remain at January 1, 2017.
  • India will advance by two weeks to December 15, 2012.

EB-5: Fifth Preference Category (Immigrant Investors)

  • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India will hold steady 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 February Visa Bulletin, modest advancement is observed under Final Action Dates for EB-2 and EB-3 India and EB-3 China by approximately two weeks to one month, depending on the employment-based category and country.

As the Final Action Dates chart is being utilized instead of the Dates for Filing chart, particularly five months into the fiscal year, this suggests higher than anticipated demand or a cautious approach to visa allocation by the Dept. of State. Employers should expect slower processing and delays, possible work authorization challenges, as well as probable impacts to retention and strategic workforce planning, as further detailed below:

  • Slower Processing and Delays: Higher demand can lead to processing backlogs and delays for employees waiting for their green card approvals.
  • Work Authorization Challenges: Employees maxing out their nonimmigrant status may face uncertainty and work authorization issues if unable to submit Adjustment of Status applications due to the more modest Final Action Dates This could impact work continuity for employees on temporary work visas hoping to secure an Adjustment of Status-based Employment Authorization Document.
  • Impact on Retention: Employers may need to reconsider retention strategies as employees affected by delays might seek alternative options, such as changing employers or remaining on nonimmigrant visas longer than planned.
  • Strategic Workforce Planning: Employers should anticipate the possibility of needing to extend nonimmigrant work visas for employees who were expecting to submit Adjustment of Status applications sooner.

To mitigate these challenges, employers should proactively communicate with affected employees, ensure ongoing compliance with immigration requirements, and explore potential extensions or adjustments in work assignments to accommodate delays. Employers should also work closely with immigration counsel to assess potential alternatives and stay updated on monthly Visa Bulletin changes.

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

December 30, 2024

United Kingdom Electronic Travel Authorization Required Starting January 8, 2025

Starting on January 8, 2025, citizens from multiple countries, including the United States, will require a new electronic travel authorization (ETA) to enter the United Kingdom as visitors without a visa.

To apply, travelers are recommended to use the UK ETA app, which is available on the App Store or Google Play. If you cannot use the app, or if you are applying for someone who is not with you, you can apply online:  https://apply-for-an-eta.homeoffice.gov.uk/apply/electronic-travel-authorisation   The system is available now for applications for travel on or after January 8, 2025.

You will need:

  • the passport you will travel with – not a photocopy or digital passport
  • access to your emails
  • a credit card, debit card, Apple Pay or Google Pay to pay the filing fee of £10

You will need to upload or take photos of the:

  • passport
  • face of the person applying

You do not need to enter your travel details.

A decision should be issued within 3 working days, but occasionally it may take longer, so plan ahead accordingly.

You will get an email confirming the ETA. It will be linked to the passport you applied with. If you get a new passport, you will need to apply for a new ETA.

The ETA will be valid for 2 years, for multiple entries into the UK.

An ETA will allow visitors to come to the UK for the following:

If you are traveling to the UK for another reason, you should check with your Gibney representative if you need a visa instead.

December 18, 2024

New Key Updates to the H-1B Visa Program: What Employers Need to Know

The Department of Homeland Security (DHS) has published a final rule with key updates to the H-1B specialty occupation nonimmigrant visa program. The final rule is aimed at modernizing the H-1B program by improving efficiency and providing greater flexibility for petitioners and beneficiaries. Highlights of the final rule include:

  • Updates to the definition of a “specialty occupation” that are intended to more closely align with current hiring practices and industry requirements.
  • Directs United States Citizenship & Immigration Services (USCIS) officers to give deference to prior H-1B petition approvals when reviewing a subsequent petition with the same parties and material facts.
  • Clarifies when petitioners must submit a new or amended H-1B petition due a change in the beneficiary’s worksite.
  • Significantly extends the “cap-gap” period for eligible F-1 students to maintain work authorization while awaiting adjudication of a H-1B change of status petition.
  • Provides greater flexibility for petitioners and beneficiaries to potentially qualify for the H-1B cap exemption.
  • Confirms USCIS’s authority to conduct site visits and clarifies the scope of visits and implications for refusing to comply.

BACKGROUND

The final rule amends DHS regulations by finalizing many updates previously proposed in 2023 or codifying existing USCIS practices. The rule mainly amends regulations affecting H-1B specialty occupation workers, although some of the provisions narrowly impact other nonimmigrant classifications including L-1, O, P, E-3, TN, and F-1, among others. The final rule has been published in the Federal Register on 12/18/2024 and will be effective 01/17/2025.

KEY ELEMENTS OF THE FINAL RULE

  • Updated “Specialty Occupation” Standard: The final rule codifies and clarifies the specialty occupation standard for H-1B positions, including confirming that a petitioner may accept a range of qualifying degree fields for a H-1B position, as long as each of the required degree fields is directly related to the job duties of the position.
  • USCIS Deference to Previously Approved Petitions: The final rule codifies current policy directing USCIS adjudicators to give deference to previous USCIS approvals when adjudicating H-1B petitions involving the same parties and material facts. This applies to extension petitions filed for the H-1B, L-1, O, P, TN, and E-3 nonimmigrant visa classifications, among others.
  • Change in Worksite and Filing New or Amended Petitions: A petitioner must submit an amended or new H-1B petition if a new work location requires a new Labor Condition Application (LCA), as determined by the Dept. of Labor’s definition of an “area of intended employment.” The petition must be approved by USCIS before the H-1B worker may perform work under the changed conditions, unless the H-1B worker is eligible for portability.
  • Expands “Cap-Gap” Provisions for F-1 Students: F-1 students with a pending H-1B change of status petition will receive an automatic extension of their F-1 nonimmigrant status and OPT or STEM OPT work authorization through April 1 of the relevant fiscal year. This is a significant expansion of the current “cap-gap” period for eligible F-1 students, which is limited to October 1. This expanded “cap-gap” period should limit disruptions in work authorization for F-1 students with long pending H-1B change of status petitions or those selected in a second round of the H-1B cap lottery.
  • Maintenance of Status Evidence for Extensions or Amendments: Evidence of maintenance of status is required for petitions where there is a request to extend or amend the beneficiary’s stay. This applies to all employment-based nonimmigrant visa classifications that use Form I-129 including H-1B, L-1, TN, O, and E-3, among others. This measure is expected to reduce the rate of RFEs by setting forth the specific evidence required to show maintenance of status.
  • Updates to Regulations Governing H-1B Cap-Exempt Petitions: The final rule provides greater flexibility for petitioners and beneficiaries to potentially qualify for the H-1B cap exemption. Specifically, the rule revises the definition of “nonprofit research organization” and “governmental research organization” to include organizations that conduct research as a fundamental activity, but it need not be the organization’s principal or foremost activity. The rule also recognizes that certain beneficiaries may qualify for the H-1B cap exemption when they are not directly employed by a qualifying organization, but spend at least half of their time providing essential work that supports or advances the fundamental research activity of the qualifying organization.
  • Additional Provisions Related to Compliance and Program Integrity:
    • Updated requirements to demonstrate that there is a bona fide job offer for a specialty occupation position. USCIS may request contracts, work orders, or similar evidence to confirm that a bona fide position exists for the beneficiary. The rule also revises the definition of a U.S. employer for H-1B purposes.
    • Measures enabling beneficiary-owners to access and participate in the H-1B program. The final rule codifies a petitioner’s ability to qualify as a U.S. employer, even where the beneficiary possesses a controlling interest in that petitioner.
    • USCIS confirms its authority to conduct site visits and clarifies the scope of inspections. Inspections may include telephonic and electronic verifications and on-site inspections. The rule also clarifies that refusal to comply with site visits may result in denial or revocation of the petition.
    • For third-party placements, USCIS will look at the third-party’s requirements for the beneficiary’s position in assessing whether the position qualifies as a specialty occupation.

WHAT THIS MEANS FOR EMPLOYERS

The regulation includes welcome changes that are expected to benefit employers.  Implementation of the regulation is expected to increase predictability in the adjudications of initial H-1B petitions, as well as extension petitions across multiple visa categories, where the terms of employment have not materially changed.  The expansion of cap-gap provisions for F-1 students is expected to reduce instances of disruption in work authorization.  The expansion of the H-1B cap exemption may provide additional flexibility for government and non-profit employers that conduct research.  Finally, the measure enabling beneficiary-owners to participate in the H-1B program is expected to promote access to H-1B nonimmigrant visas for entrepreneurs and start-up owners.

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

December 16, 2024

DHS Permanently Increases the Automatic Extension Period for EAD Renewals to Support US Employers

The Department of Homeland Security (DHS) announced a final rule to permanently increase the automatic extension period for employment authorization and Employment Authorization Documents for certain applicants. The final rule will help to prevent eligible renewal applicants from experiencing a lapse in employment authorization due to longer processing times.

What This Means for Employers

In response to feedback from the business community to create more certainty for employers, this final rule reduces the likelihood that lapses in employment authorization for eligible noncitizens will occur and helps to ensure business continuity for U.S. employers.

Key updates of the final rule:

  • Effective starting January 13, 2025
  • Permanently increases the automatic extension period for employment authorization and Employment Authorization Documents from up to 180 days to up to 540 days
  • Will apply to eligible applicants with filed timely renewal EAD applications pending or filed on or after May 4, 2022

 USCIS also indicated that the final rule aligns with additional steps taken to streamline EAD and adjudication processing, including reducing median EAD processing times by half for individuals with pending applications for adjustment of status from fiscal year 2021 to date, extending the EAD validity period for certain categories of applicants from two years to five years and streamlining processing for refugee and asylum applicants.