Reminder: Now Is the Time to Prepare for H-1B Cap Filings For New Hires in 2025
As we explained in last month’s newsletter, H-1B “Cap Season” is once again upon us. The Cap refers to the annual numerical limit on H-1B visas. It is essential for employers seeking to hire foreign national employees to identify and initiate processing of H-1B “Cap” submissions as early as possible given the large number of H-1B filings expected again in the upcoming year. Once the Cap is reached, the category closes and it will not be possible to file a new H-1B Cap case until next year. The cap applies only to new H-1B filings, not to hires already in H-1B status for another employer.
Because the chances for selection are relatively low and documentation requirements are high, we recommend that employers contact us to authorize the application process immediately. This will allow us to fully analyze an individual’s eligibility for H-1B status; obtain the required prevailing wage (and secure an alternative wage if needed); and ensure we are prepared to register the applicant during the 2025 registration period and file the H-1B application if an employee is selected.
USCIS FAQ Discusses DACA Recipient Use of Advanced Parole
U.S. Citizenship and Immigration Services (USCIS) recently updated its Deferred Action for Childhood Arrivals (DACA) FAQs to expressly provide that DACA recipients may obtain Advance Parole (AP) to travel to their consular employer-sponsored nonimmigrant visa appointment and, importantly, local USCIS offices may on a case-by-case basis approve emergency DACA Advanced Parole applications for this purpose.
Many DACA recipients are eligible for, or have received, nonimmigrant status (such as H-1B, TN or O). However, for DACA recipients (who have no status), an approved nonimmigrant petition, by itself, does not confer any benefit. Rather, the DACA recipient must secure a visa by leaving the United States and applying at a consular post abroad. This is problematic because DACA recipients who have accrued more than 180 days of “unlawful presence” in the United States could face three- or ten-year bars from the country unless they obtain what is known as a D-3 waiver.
D-3 waivers have rarely been used by DACA recipients because there has been very little guidance available on how D-3 waivers will be adjudicated. But in 2024 the Biden Administration announced new administrative actions to clarify the guidance for D-3 waivers. Those actions included incorporating new language in the Foreign Affairs Manual (FAM) that will allow for more predictable and streamlined access to employment-based visas for eligible DACA recipients. The updated guidance asks consular officers deciding whether to grant a D3 waiver to recognize that applicants have a positive effect on U.S. public interests if they have earned a degree at an accredited U.S. institution of higher education and have received an offer of employment from a U.S. employer in a field related to their degree. The guidance encourages consular officers to expedite the application and approval process for these applicants.
The incoming Trump Administration may not keep the new D-3 guidance in place. This uncertainty makes the ability of DACA residents to obtain expedited Advance Parole especially relevant. An example will help to illustrate. A DACA recipient who is eligible for an employer-sponsored visa could make a nonimmigrant visa appointment at a consulate abroad, apply for an expedited AP to attend the appointment, and—assuming approval of the AP—travel abroad to attend the interview. Even if the D-3 waiver is denied, the DACA recipient could still return to the United States with the AP.
Contact us with questions about expediting requests for permission to travel.
Validity of Green Cards Extended to 36 Months for Lawful Permanent Residents Filing I-90 Requests to Review
Previously, lawful permanent residents could extend the validity of an expiring or expired Green Card by 24 months by filing a Form I-90. Since September 10, 2024, however, the language on Form I-90 receipt notices has extended the validity of a Green Card for 36 months from the expiration date on the face of the current Green Card. USCIS also began printing amended receipt notices for individuals with pending I-90s. These receipt notices can be presented with an expired Green Card as evidence of continued status and employment authorization. This change was implemented to help applicants who experience long processing times and need to establish work authorization.
Contact us with questions about Green Card expiration dates and work authorization.
DOS Issues December 2024 Visa Bulletin Showing No Improvement, But Also No Retrogression
USCIS determined that, for December 2024, all employment-based preference categories must use the Dates of Filing Dates. The chart shows no advancement in the Employment-Based (EB) preference categories. On a positive note, none of the EB preference categories' priority dates slid backwards.
Contact us with questions about priority dates and the visa bulletin.
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 ...