Legal Blogs and Updates

Alert: Now Is the Time to Prepare For H-1B Cap Filings For New Hires in 2025

H-1B “Cap Season” is once again upon us. 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 filings expected again in this upcoming year. Once the Cap is reached, the category closes and it is not 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 Issues New Guidance on EB-1 Eligibility Criteria for Individuals with Extraordinary Ability

Foreign nationals with extraordinary ability in the sciences, arts, education, business or athletics can self-petition for first preference immigrant visa classification without a job offer or labor certification from the Department of Labor (DOL). On October 2, 2024, U.S. Citizenship and Immigration Services (USCIS) revised its Policy Manual to further clarify how it evaluates evidence to determine eligibility for this immigrant classification.

The revised Policy Manual:

• Confirms that USCIS considers a person’s receipt of team awards (not just individual awards) under the criterion for lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
• Clarifies that USCIS considers past memberships under the membership criterion, in addition to current memberships;
• Removes language suggesting that—to satisfy the published material criterion— published material must demonstrate the value of the person’s work and contributions.

Contact us with questions about petitions for individuals of Extraordinary Ability.

USCIS Announces a New E-Verify Service: E-Verify+

E-Verify is an Internet-based system that confirms employment eligibility by comparing information entered by an employer on an employee’s Form I-9, Employment Eligibility Verification, to records available to the U.S. Department of Homeland Security and the Social Security Administration. E-Verify has always been separate and distinct from the I-9 process. The employee and employer complete Form I-9 first, and then the employer enters the information into the E-verify system. This procedure has been criticized as duplicative.

USCIS recently announced a new service, called E-Verify+, designed to streamline the process. E-Verify+ allows employees to complete their Form I-9 directly through E-Verify, thereby reducing the burden on employers. It further allows employees to share documents with the employer by uploading them to the system.

Employers interested in learning more about E-Verify+ should register here for the USCIS’ webinar on Thursday, November 14 from 2-3 pm EST. https://www.uscis.gov/outreach/uscis-engagements/learn-more-about-how-e-verify-streamlines-employment-eligibility-verification-2024-11-14

Contact us with questions about I-9 compliance, E-Verify, and E-Verify+.

USCIS Issues Guidance Clarifying How It Will Consider Expedited Requests for Permission to Travel (Advanced Parole)

Processing times for Applications for Travel Documentation are lengthy, but USCIS considers expedited processing when there is an unexpected need to travel outside the United States for an unplanned event, such as a funeral. Expedited processing may also be warranted when there is a pressing or critical need to travel outside the United States for a planned event. Documentation is required to support a request for expedited processing.

The clarifying guidance, which goes into effect immediately, includes examples of a pressing or critical need to travel outside the United States, as well as examples of evidence that would be acceptable to support such a claim:

Contact us with questions about expediting requests for permission to travel.

University of California Publishes Guide for Leaders at Institutions of Higher Education on How to Support Employees Who Are DACA Recipients with Employment-Based Immigration Pathways

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 United States 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 United States could face three- or ten-year bars from the United States 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 United States to wait abroad for their waivers to be adjudicated with limited knowledge about which 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 U.S. institution of higher education and are seeking to travel to the United States to commence or continue employment with a U.S. employer in a field that requires the education attained.

In September 2024 the University of California, working with partners including Cornell Law School and the Presidents’ Alliance on Higher Education and Immigration, published a guide titled Sponsoring DACA Recipients and other Dreamers for Employment-Based Visas: How Higher Education Institutions Can Support Their Employees and Alumni. The guide is intended for leaders and administrators at institutions of higher education who are interested in supporting employees who are not U.S. citizens, including DACA recipients. Given that “DACA is under several legal threats,” institutions are encouraged to, among other things, identify employees who may be eligible for employment-based visa options, conduct broad outreach, and provide referrals to legal services.  

Contact us with questions about DACA recipients and Dreamers obtaining a nonimmigrant visa.

Client Flyer: What is myUSCIS

myUSCIS provides a personalized account to help applicants navigate the immigration process. The account includes:

• A way to file forms online and track cases anytime from anywhere; 
• Up-to-date information about the application process for immigration benefits;
• Tools to help applicants prepare for the citizenship tests; and
• Information to help explore your immigration options.

We have attached a helpful flyer that explains myUSCIS. Need a hyperlink here.