Legal Blogs and Updates

Department of Homeland Security Permanently Increases Automatic Extension Period for Employment Authorization Documents 

Department of Homeland Security (DHS) has announced a final rule that will permanently increase the automatic extension period for employment authorizations and EADs from up to 180 days to up to 540 days from the expiration date stated on the expiring Employment Authorization Document (EAD). The final rule will become effective January 10, 2025, and will apply to certain renewal applicants who timely filed an I-765 request for an extension on or after May 4, 2022. The rule will reduce the likelihood of eligible renewal EAD applicants experiencing a lapse in employment authorization while U.S. Citizenship and Immigration Services (USCIS) processes renewal applications.

Contact us with questions about automatic EAD extensions.

H-1B Modernization Final Rule to Take Effect on January 17, 2025

The H-1B Modernization Final Rule aims to “streamline the H-1B review and approval process,” and “improve the integrity and oversight of the program.” Because the rule will codify longstanding USCIS policy, it is welcomed by immigration advocates. Key provisions include:

• Clarification that the specialty occupation standard requires a direct connection between the required degree and the duties of the position.
• Confirmation that the USCIS policy gives deference to prior approvals unless there was a material error, change in circumstances, or new information impacting eligibility.
• Clarification that employers must file an amended or new petition for material changes in employment terms prior to the change taking place.
• Revisions to definitions of nonprofit and government research organizations for the purpose of qualifying for the H-1B cap exemption.
• Automatic extension of the cap-gap date from October 1 to April 1 (of the subsequent year) for students changing to H-1B status.
• Clarification that H-1B petitions may be approved or extended if adjudicated after the initially requested validity period end-date.
• Codification of USCIS’s authority to conduct site visits and take adverse action against non-compliant employers.
• Clarification that there is an 18-month limitation on the initial approval of petitions filed by entities whose beneficiary has a controlling interest in the business.

Contact us with questions about H-1B petitions.

Department of State (DOS) Updates J-1 Skills List

The J-1 Exchange Visitor Skills list is a list of countries that require the services of individuals engaged in specific fields of specialized knowledge or skills. The list determines whether a J-1 visa holder is subject to the two-year home residency rule, which requires certain J-1 exchange visitors to return to their home country for two years after completing their J-1 program.

The updated J-1 Skills list includes crucial changes:

• J-1 visitors who were admitted in J status or obtained J status before December 9, 2024, are no longer subject to the requirement if their country is not designated on the revised list. Individuals with pending applications to waive the two-year home residency rule should no longer need a waiver and should be able to proceed with adjustment of status/visa processing without the waiver.
• The revised list removes from the skills list several countries, most notably China and India.

It is important to note that a J-1 visitor still may be subject to the two-year home residency rule because they have received funding from the U.S. government or home country government, or because they received graduate medical education or training in the United States. The DOS update affects only former J-1 visa holders who were subject to the two-year home residency based on the skills list.

Contact us with questions about the two-year home residence rule.

USCIS Has Reached the FY2025 H-1B Cap 

As of early December 2024, USCIS had received enough petitions to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master's cap, for fiscal year (FY) 2025. The agency will be sending non-selection notices to registrants through their online accounts. The status for properly submitted registrations that USCIS did not select will state: “Not selected - not eligible to file an H-1B cap petition based on this registration.”

As always, USCIS will continue to accept and process petitions that are otherwise exempt from the cap. For example, petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2025 H-1B cap. USCIS will also continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the United States;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in additional H-1B positions.

Contact us with questions about H-1B status, including the upcoming registration for FY2026.

Medical Exam Results Must be Filed with Forms I-485

USCIS has announced that, effective December 2, 2024, Form I-693 (Report of Immigration Medical Examination and Vaccination Record) must be submitted with Form I-485, and failure to do may result in rejection of the application. There is no grace period applicable to this policy change, which is intended to reduce the need for USCIS to issue Requests for Further Evidence (RFEs). It is important to note that Forms I-693 completed on or after November 1, 2023 may be used indefinitely, meaning that they do not expire.

Contact us with questions about Medical Exam Results and I-485 applications.

U.S. Diversity Visa Lottery May Be an Option for Certain Foreign National Employees with Pending Employment-Based Filing

Some of your employees may be eligible for the Diversity Immigrant Visa Program (DV Program). Using a random selection process, the program makes up to 55,000 immigrant visas available annually to individuals who are from countries with low rates of immigration to the United States. The DV Program is administered by the U.S. Department of State (DOS), which maintains a list of eligible countries.

Most lottery winners reside outside the United States and immigrate through consular processing and issuance of an immigrant visa. There are, however, a small number of lottery winners each year who, at the time of “winning the lottery,” are residing in the United States in a nonimmigrant or other legal status. For these winners residing inside the United States, USCIS processes adjustment of status applications. It is important to note that employees with pending employment-based filings are eligible for the DV program. For those stuck in long per-country backlogs, winning the lottery could be a faster route to permanent residence.

Being aware of the limited period each fiscal year when an individual can register for the DV program—and being prepared to register during that period—are the first steps toward becoming a “winner.” For example, for the FY2025 U.S. diversity visa program, the registration opened on October 4, 2024 and ended on November 7, 2024. Registration for the FY2026 will most likely be in the fall of 2025; employees who are interested should check the DOS website regularly, or contact us. The attached flyer includes helpful information on the DV Program. Insert attached PDF.