Breaking News: USCIS Will Conduct Second Random Selection for Regular Cap from Previously Submitted FY 2025 H-1B Registrations
In March, the US Citizenship and Immigration Services (USCIS) conducted an initial random selection of properly submitted electronic registrations for the fiscal year 2025 H-1B cap. Only petitioners with selected registrations for FY 2025 are eligible to file H-1B cap-subject petitions. The initial filing period for those with selected registrations for FY 2025 was from April 1 through June 30, 2024.
On July 30, 2024, USCIS announced it would need to select additional registrations for unique beneficiaries to reach the FY 2025 regular cap (not the master’s cap) numerical allocation. Accordingly, it will select additional registrations from previously submitted electronic registrations using a random selection process and notify selected registrants they are eligible to file a petition for the beneficiary. USCIS will make an announcement when they have completed the second selection. Those with selected registrations will have their USCIS online accounts updated to include a selection notice.
Contact us with questions about the second H-1B lottery.
DOS Eases the Nonimmigrant Visa Application Process for US College Graduates
Many DACA (Deferred Action for Childhood Arrivals) recipients and Dreamers are eligible for nonimmigrant visas, such as H-1B visas. However, it has been difficult for employers to pursue these options because securing a visa usually requires individuals to leave the US and apply to re-enter. This is problematic because DACA recipients and Dreamers who have accrued more than 180 days of “unlawful presence” in the US could face three- or ten-year bars from the US unless they obtain what is known as a D-3 waiver.
A D-3 waiver is rarely used by DACA recipients and Dreamers because there is very little written guidance available. Without it, they would have to risk leaving the US to wait abroad for their waivers to be adjudicated with limited knowledge about what legal standard would apply.
On July 15, 2024, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) to clarify existing guidance to consular officers abroad relating to when they should consider recommending that the Department of Homeland Security (DHS) grant a D-3 waiver. The updated FAM intends to expedite visa issuance to allow individuals, including DACA recipients and Dreamers, who have earned a degree from a US institution of higher education and are seeking to travel to the US to commence or continue employment with a US employer in a field that requires the education attained.
Companies that employ DACA recipients and Dreamers who may qualify for H-1B status should consider registering them in early 2025 for the next H-1B lottery.
Contact us with questions about DACA recipients and Dreamers obtaining a nonimmigrant visa.
DHS Issues Final Rule Increasing Civil Penalties for Violations Pertaining to the Employment Eligibility Verification Process (Form I-9)
A recent final rule makes adjustments to civil monetary penalties for I-9 paperwork violations, document fraud, and knowingly hiring, recruiting, referring or retaining unauthorized workers. Effective immediately, the adjustments are as follows:
- The penalty for paperwork violations has increased from $272 - $2,701 to $281 - $2,789, per individual.
- The penalty for the first offense of unlawful employment of aliens has increased from $676 – $5,404 to $698 – $5,579, per unauthorized alien.
- The penalty for the second offense of unlawful employment of aliens has increased from $5,404 – $13,508 to $5,579 – $13,946, per alien.
- The penalty for the third offense of unlawful employment of aliens has increased from $8,106 – $27,018 to $8,369 – $27,894, per alien.
- The violation relating to employer’s failure to notify of Final Nonconfirmation (through E-verify) of employee’s employment eligibility has increased from $942 – $1,881 to $973 – 1,942, per individual.
- The penalty for unfair immigration-related employment practices has increased from $557 – $4,465 to $575 – $4,610 for the first offense and $6,913 – $23,048 for third and subsequent offense, per discriminated individual.
- The fines for unfair documentary practice have increased to $230 – $2,304, per discriminated individual.
- The penalty for document fraud can vary anywhere from $575 – $11,524 per document pursuant to 8 U.S. Code § 1324c (a) (1) – (6) on whether it’s a first or subsequent offense.
Contact us with questions about I-9 compliance, including our on-site or remote training.
ICE Amends STEM Degree Program List Increasing the Number of Graduates Eligible for the 24-Month OPT Extension
Immigration Customs and Enforcement (ICE) released an advanced copy of the Federal Register notice, which updates the STEM-designated degree program list to add the Environmental/Natural Resources Economics category. No fields of study have been removed from the list. Graduates from programs in Environmental/Natural Resources Economics will be eligible to apply for a 24-month extension (beyond the initial 12 months) of their post-completion optional practical training (OPT).
Contact us with questions about STEM OPT.
DOS Issues August 2024 Visa Bulletin Showing Little Improvement, But No Retrogression
The USCIS determined that, for August 2024, all employment-based preference categories must use the Final Action Dates chart. The chart shows an advancement of one month for Indian nationals in the Employment-Based (EB) 3rd preference category, with no other improvements for other categories. On a positive note, no EB preference category saw a backward slip in the priority date.
Contact us with questions about priority dates and the visa bulletin.
Some Consular Posts List Nonimmigrant Visa Wait Times for Third Country National Seeking Appointments
The DOS recommends that foreign nationals apply for US visas in their home country or country of residence. If applying in a third country, the US Embassy/Consular Post may require the applicant to show there are special circumstances such as the home country is not currently processing visas; the applicant is in the third country for work purposes; the applicant is in the third country to attend a professional conference; or the applicant is doing academic research in the third country. Some US Embassies/Consular Posts do not accept applications from third country individuals under any circumstances (e.g. due to staffing shortages or limited visa interview capabilities).
It may take longer to process in a third country as compared to a home country. Embassies/consular posts are supposed to list interview wait times for third country national (TCN) on their websites. For many posts, the TCN wait times are listed with general wait times, while other posts have separate buckets for TCNs. There does not appear to be standard indications by posts as to whether they maintain separate buckets.
Contact us with questions about nonimmigrant wait times.
PartnerAbigail Walsh has over 20 years’ experience in a wide range of immigration matters. She represents multinational and domestic corporations, their employees and private individuals in business immigration matters before U.S ...
PartnerVictoria Donoghue has an extensive background in immigration law, advising clients on the full range of issues related to employment-based immigrant and nonimmigrant visas. Her experience includes handling complex Requests for ...