Tag: immigration faqs

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.

United States Citizenship and Immigration Services (USCIS) has reached the Fiscal Year (FY) 2025 H-1B cap.

USCIS conducted its initial  H-1B cap lottery in March 2024, and employers with selected registrations had a 90-day window during to file H-1B cap petitions for designated beneficiaries. USCIS conducted an additional lottery and has received enough petitions to reach the mandated 65,000 H-1B visa regular cap and the 20,000 visas for advanced degree holders. There will be no third lottery.

WHAT EMPLOYERS CAN EXPECT
Employers may expect that over the next few days, USCIS will update non-selected registrants’ online accounts to change the status of pending FY 2025 registrations from “Submitted” to “Not Selected.”

PETITIONS NOT SUBJECT TO THE H-1B CAP
USCIS will continue to accept and process H-1B petitions that are not subject to the cap. These include filings for extensions of status, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

USCIS provided updated guidance in the USCIS Policy Manual with regard to the F-1 and M visa classifications utilized by international students for vocational, graduate and post-graduate study at U.S. academic institutions. The new USCIS policies address when students may be eligible for optional practical training (OPT) for Science, Technology, Engineering, and Mathematics (STEM) fields. The update also provides guidance on online study, school transfers, the grace period, and study abroad.

Background

F-1 and M-1 are two of the primary visa categories used by foreign students to attend academic programs in the U.S.  Following a period of full-time study, new grads are eligible to apply for one year of work authorization, known as Optional Practical Training (OPT), to gain practical work experience in their area of study.  (OPT is also available pre-degree completion in certain circumstances.)  Students who have earned a degree in a designated STEM field are eligible to apply for a 24-month extension of post-completion OPT, to work for a total of 36 months.

Key Takeaways

• Online study: Students may count one class, three credits (or the equivalent) per semester toward a full course of study for online/distance learning.
• Transfers: Students may transfer between Student and Exchange Visitor Program (SEVP)-certified schools at the same academic level or move between educational levels. Transfers are also permitted during the 60-day grace period following an authorized period of post-completion of OPT.  Previously transferring students were required to be pursuing a full course of study or be engaged in post-completion optional practical training (OPT) until the transfer release date.
• Grace Period: During the 60-day grace period, in addition to transferring schools as noted above, students may change their education level or file an application or petition with USCIS to change to another nonimmigrant or immigrant status.
• OPT Eligibility: Students are eligible for post-completion OPT after completion of an associate’s, bachelor’s, master’s, or doctoral degree program.
• STEM OPT: Technical corrections to the STEM OPT guidance and clarifies the time periods during which students may apply for STEM OPT.
• Study Abroad: Students enrolled in an ICE SEVP-certified school during a study abroad program may remain active in SEVIS if the program lasts less than 5 months. For study abroad programs that are over 5 months, a new Form I-20 is required.
• Extensions: The guidance also corrects the period during which students may apply for extensions

What this Means for Employers

The new guidance is effective immediately and will apply to any requests or applications that are pending or filed on or after the publication date.  It also supersedes any prior guidance related to the areas that it covers. The changes and clarifications are promising. USCIS has modernized its approach to online courses, a growing area for U.S. colleges and universities.  The new guidance also makes it easier for students to remain in valid status during transfers and other changes to their academic programs. Finally, the guidance clearly establishes eligibility and protocols for OPT and STEM OPT.

Also Good to Know…

International students are on the rise! Over 1 million students from more than 210 places of origin studied at U.S. academic institutions during the 2022/2023 school year, contributing approximately $40 billion to the U.S. economy. This was a substantial increase in student enrollment from the prior years.  A majority of international students are pursuing degrees in STEM fields, with Computer Science and Business Administration as the most popular majors.  In 2023, over 160,000 students participated OPT, a 37% increase from the previous year.  (See https://www.boundless.com/research/international-students-studying-in-the-united-states-trends-and-impacts/ for more statistics.)

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

The Department of State released the September  2024 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. Most Employment-Based Categories will remain unchanged under Final Action Dates for September with further retrogression observed for EB-3 Professional, Skilled Worker and Other Workers for most countries, as detailed below.

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 and India will hold steady with a Final Action Date cutoff of November 1, 2022 and February 1, 2022, respectively.   

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will remain at March 15, 2023.
• China: Final Action Date will maintain a cutoff date of March 1, 2020.
• India:  Final Action will hold steady at July 15, 2012.

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

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will retrogress by approximately one year to December 1, 2020.
• China: Final Action Date will remain at September 1, 2020.
• India: Final Action Date will hold steady at October 22, 2012.

Other Workers

• Other Workers will retrogress by one month to December 1, 2020, for all countries except China, India and Philippines which will hold steady from last month:
  • India will remain at October 22, 2012.
  • Philippines will hold steady at May 1, 2020.
  • China will hold steady at January 1, 2017.

EB-5, Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. 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 predicted in the July Visa Bulletin, further retrogression in the EB-3 Worldwide category was implemented in the September Visa Bulletin. However, the Dept. of State anticipates that the Final Action Dates for EB-3 Professional, Skilled Worker and Other Workers will advance in October 2024 with date movement dependent on worldwide demand and the estimated FY 2025 category limit. Due to a steady increase for employment-based visas during the fiscal year, the Dept. of State notes that numerical limits to most employment-based preference categories for FY 2024 are expected to be reached during September, if not sooner. Accordingly, Employers should file Adjustment of Status applications for eligible applicants as soon as possible as most employment-based categories are expected to reach their numerical limits in the near future.

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

On April 1 , 2024, USCIS announced that it received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2025 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted from March 6, 2024 through March 25, 2024. H-1B petitions may be filed for selected registrations starting April 1, 2024.

WHAT EMPLOYERS CAN EXPECT

USCIS has notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration during the 90-day period designated on the selection notice. Registrants’ online accounts will now be updated to show one of the following statuses for each beneficiary registered:

• Submitted: A registration status may continue to show “Submitted” after the initial selection process. These registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will either be Selected, Not Selected, or Denied. If a sufficient number of petitions are not filed and approved for selected beneficiaries with the initial 90-day filing window, USCIS may conduct another lottery from the reserve of “submitted’ registrations until the FY 2025 cap is reached.
• Selected: Indicates that the employer may file an FY 2025 H-1B cap-subject petition for the beneficiary in the designated 90-day filing period.
• Not Selected: Not eligible to file an H-1B cap petition based on this registration.
• Denied – duplicate registration: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
• Deleted: The submitted registration has been deleted and is no longer eligible for selection.
• Invalidated-Failed Payment: A registration payment method was declined and not reconciled, invalidating the registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2025 and only for the beneficiary in the applicable selected registration notice. Petitioners must submit evidence of the beneficiary’s valid passport or travel document used at the time of registration to identify the beneficiary.  Employers have a 90-day window during which to file the complete H-1B petition, commencing April 1, 2024.

NEW THIS YEAR:  CHANGE TO FILING LOCATIONS, FORMS, AND FEES

Beginning on April 1, 2024, all paper-filed Form I-129 petitions requesting  H-1B classification, including those with a concurrent Form I-907, Request for Premium Processing Service, and those with concurrently filed Form I-539 and/or Form I-765, must be filed at a USCIS lockbox facility.  USCIS will also accept online filings of I-129H petitions filed alone or with a request for premium processing service

The new version of paper Form I-129 (dated April 1, 2024) is required as of April 1, 2024. Petitions submitted with an older version of the form will be rejected.

The filing fee for H-1B petitions increased substantially effective April 1.  The H-1B cap filing fees for companies with more than 25 employees now total $3,380 (includes base I-129 fee of $780; ACWIA fee of $1,500; anti-fraud fee of $500; and new asylum program fee of $600.)  Non-profit organizations and employers with 25 or fewer employees will pay reduced fees. The premium processing (Form I-907) fee also increased to $2,805 on February 26, 2024. Additional information about USCIS filing fee increases may be found here.

Information about the cap registration process is available at the USCIS H-1B Electronic Registration website.  For additional information please contact your designated Gibney representative or email info@gibney.com.