Legal Blogs and Updates

Potential Amendment to H-1B Regulations: 60-Day Comment Period After USCIS Publishes a Notice of Proposed Rulemaking

United States Citizenship and Immigration Services (USCIS) states the goal of proposed rulemaking is to, “modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.” Some key changes proposed are the following.

Among the positive are:

1. Change to the H-1B lottery system in response to fraud in FY2024. Instead of selecting by registration, USCIS would select registrations by unique beneficiary.
2. An automatic “cap-gap” protection until April 1, rather than the current October 1, would avoid disruptions in employment authorization experienced by some F-1 nonimmigrants.
3. Allow more organizations to qualify as nonprofit research organizations, and thereby be exempt from the H-1B cap. This would be accomplished by changing the definition of a nonprofit research organization from “primarily engaged in basic research and/or applied research” to an organization with “a fundamental activity of” basic research and/or applied research. 
4. Finally, in an effort to promote entrepreneurship, the amended rules clarify that beneficiary owners may be eligible for H-1B status under certain conditions.

Among the controversial are the following:

1. Proposed revision of the regulatory definition and criteria for an H-1B Specialty Occupation. The proposed regulatory definition states that an H-1B position “may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and duties of the position.”
2. Proposed amendment states that “a position is not a specialty occupation if the attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position.”

The Notice of Rulemaking is subject to a 60-day comment period that could result in revisions.

Contact us with questions about the proposed amendments.

Important Date: Beginning November 1, 2023, Employers Must Now Use the Revised Form I-9, Employment Eligibility Verification

The revised Form I-9 (with the edition date 08/01/23), is now required when completing the employment eligibility verification process. This updated Form I-9 includes the option for eligible employers (i.e., E-verify employers in good standing) to verify employment eligibility remotely.  Employers who do not use the 08/01/23 edition of Form I-9 may be subject to penalties.

Contact us with questions about the new Form I-9 and/or remote verification.

Important Date Reminder:  Automatic 540-Day Extension of Certain EAD Renewals Expired on October 26, 2023

The Temporary Final Rule (TFR) providing a 540-day automatic extension of employment authorization for certain renewal applicants expired on October 26, 2023.  Forms I-765, Application for Employment Authorization, requesting an extension employment authorization in one of the eligible categories (Temporary Protect Status and H-4, E or L-2 nonimmigrants), filed after October 26 will be eligible for an automatic extension of up to 180 days only.

Contact us with questions about EAD renewals.

Potential Return of Visa Revalidation in the US in Early 2024

In Early 2024, DOS plans to launch a pilot Stateside Visa Renewal Program offering visa renewal options in the US for H-1B specialty occupation workers currently required to travel abroad for visa renewal.  Restoring stateside visa renewals, which were an option in the past but discontinued in 2004, has been urged by trade groups (especially in the tech industry) to address bottlenecks at consular posts abroad.  The initial launch of the stateside renewal program will be a limited pilot to test out the functionality of the program.  While the details of the program have not yet been shared, advocates believe that it will:

• Be limited to H-1B principals only;
• Be limited to nationals of countries that are not subject to reciprocity fees (India will be one of the eligible counties to participate in the pilot);
• Have eligibility requirements like those for participation in the interview waiver program;
• Be available for 20,000 applicants; and
• Will be based on voluntary participation.

Future newsletters will include details as they develop.

USCIS Issues Guidance on the Two-Year Foreign Residence Requirement for J-1 Nonimmigrants

The J-1 visa classification for exchange visitors is commonly found in academia because it is used for teaching, instructing or lecturing, and conducting research (among many other purposes).  However, many J-1 visas include a two-year foreign residency requirement, which requires foreign nationals to reside and be physically present in their country of nationality or last legal residence abroad for an aggregate of at least two years before they are eligible to apply for an immigrant visa (permanent residence or “green card”) or before they can change status to another a nonimmigrant H or L visa.

 On October 24, 2023, USCIS issued policy guidance on the two-year home residency rule, which:

• Explains that a travel day, where a fraction of the day is spent in the country of nationality or last residence, counts towards satisfaction of the two-year foreign residence requirement.
• Provides that USCIS considers situations in which it is impossible for the benefit requestor to satisfy the two-year foreign residence requirement on a case-by-case basis, and that USCIS consults with the Department of State in this situation.
• Clarifies the three exceptions to the requirement that a foreign medical graduate obtain a contract from a health care facility in an underserved area when seeking a waiver of the two-year foreign residence requirement.
• Clarifies that USCIS determines whether the exchange visitor has met the two-year foreign residence requirement within the context of a subsequent application or petition under the preponderance of the evidence standard.

Contact us with questions about J-1 visas and the two-year home residency rule.

Israel is Now Part of the VWP

On September 27, 2023, Secretary of Homeland Security Alejandro Mayorkas announced the addition of Israel to the list of nations included in the Visa Waiver Program (VWP) and that, by November 30, 2023, the Electronic System for Travel Authorization (ESTA) will be updated to allow citizens and nationals of Israel to apply to travel to the US for tourism or business purposes for up to 90 days without first obtaining a US visa. Under the VWP, citizens and nationals of Israel will be able to apply online for authorization to travel to the US through the ESTA.

Contact us with any questions about the VWP or the ESTA.

USCIS Clarifies Policy on L-1 Petitions Filed by Sole Owners and on Extensions of Blanket L-1 Petitions

In a Policy Alert issued on October 20, 2023, USCIS confirmed that a sole proprietorship may not file an L-1 petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from its owner.

On a separate note, USCIS also confirmed that the failure to timely file an extension of an approved blanket petition does not trigger a three-year waiting period before another blanket petition may be filed.

Contact us with questions about L-1 Petitions.

Increased Maximum Available Validity Period for EAD for Refugees, Certain Parolees Granted Asylum and/or Those with Withholding of Removal

Updated guidance issued by USCIS increased the maximum available validity period to five years (up from two years) for initial and renewal Employment Authorization Documents (EAD) for certain noncitizens who are employment authorized incident to status or circumstances.  USCIS also clarified that a Form I-94 may be used as evidence of both status and employment authorization for certain EAD categories that are employment authorized incident to status or parole.

Contact us with questions about EAD and completion of Form I-9.

DHS is Reaching Out to Work-Eligible Noncitizens Who Have Yet to Apply for EAD

The Department of Homeland Security (DHS) launched a first-of-its-kind national outreach campaign for noncitizens who are work-eligible but who have yet to apply for an EAD.  Hundreds of thousands of email and text notifications have been sent by USCIS in English, Spanish, and Haitian Creole, with additional notifications in Ukrainian and Russian coming soon.  These notifications are the start of a government-wide effort to integrate newly arrived noncitizens into the American workforce.  USCIS will also begin distributing flyers to local Non-Governmental Organizations, stakeholders, and migrants to explain the EAD process and provide them with a QR code for instant access to the application.

Contact us if you have questions about how a potential worker could apply for an EAD.

USCIS Launches New Online Change of Address Tool

USCIS has launched a new “Enterprise Change of Address (E-COA)” self-service tool to allow customers with pending applications, petitions, or requests to update their address with USCIS more easily.  With E-COA, most individuals with a USCIS online account can:

• update their mailing and physical address with USCIS for pending matters in a single place, eliminating the need to update the address in multiple places;
• fill out a paper AR-11, Alien’s Change of Address Card;
• call the Contact Center; or
• visit a USCIS Field or Asylum Office.

E-COA will automate address changes for almost all form types.  Customers who do not have pending matters, such as individuals in approved Lawful Permanent Resident status, can use the tool to meet the requirements to notify USCIS if they have moved.

Contact us with questions about address changes and E-CAO.

Client Flyer: Why Is My Case Taking So Long?

As anyone who has ever been involved with the sprawling US immigration system knows, long delays are common and have been for decades.  Immigration attorneys strive to avoid delays, but nearly anyone who has ever filed an application or petition has experienced delays. We have attached a helpful flyer to help answer the age-old question of “why hasn’t my case been decided yet.”  

Please contact us with questions about processing delays.

Client Flyer: What Is the Visa Bulletin?

For many employers and foreign employees caught up in the complicated US immigration system, the Department of State (DOS) Visa Bulletin is a mystery. Yet, understanding how it can impact a case is crucial. We have attached a helpful flyer that attempts to demystify the monthly visa bulletin.  

Please contact us with questions about the DOS Visa Bulletin.

CNBC: With US Fertility Rate Below the Replacement Rate- Which is Needed to Maintain the Current Population- Economists See Immigration Reform as “the Answer Hiding in Plain Sight”

The US birth rate fell in 2022 and hasn’t recovered to pre-pandemic levels, which were already below the replacement rate.  As a result, the tax base is shrinking; less tax revenue could mean reduced funding for programs such as Social Security and Medicare.  Jackie Vimo, Senior Economic Policy Analyst at the National Immigration Law Center, stated that “allowing immigrants to come in lawfully is an easy solution” that is “hidden in plain sight.”  In a 2021 report, the Center for American Progress found that a comprehensive option granting a pathway to citizenship for all undocumented immigrants would increase the US gross domestic product by a total of $1.7 trillion over ten years and create 438,000 new jobs.