Legal Blogs and Updates

Approvals of O-1 Visa Petitions and EB-2 National Interest Waiver Petitions Have Increased Following Favorable Guidance by the Biden Administration

In January 2022, the Biden administration announced favorable new guidance clarifying how certain professionals in the field of Science, Technology, Engineering, and Math (STEM) can demonstrate eligibility for (a) the National Interest Waiver (NIW) in an Employment-Based (EB) 2^rd preference (EB-2) category, and (b) nonimmigrant status for individual of extraordinary ability (O-1A). The new guidance was part of a broader Biden Administration push to welcome high-skilled science and engineering talent using the O-1A and NIW categories. The guidance provides examples of evidence that may satisfy the criteria and discusses considerations that are relevant to evaluating such evidence, with a focus on the highly technical nature of the STEM fields.

A fact sheet recently provided by U.S. Citizen and Immigration Services (USCIS) indicates that, in FY2022 and FY2023, both filings and approvals for STEM-related petitions increased significantly compared to fiscal years prior to issuance of the new guidance.

Contact us with questions about eligibility for O-1A and NIW filings.

Conducting Second Random Selection from Previously Submitted FY 2025 H-1B Registrations, USCIS Announced It Has Enough to Reach the Regular H-1B Cap

July 30, 2024, USCIS announced that 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, a second random selection was conducted using previously submitted electronic registrations. Prospective petitioners with selected registrations from the second round have been notified that they are eligible to file an H-1B cap-subject petition for the named beneficiary. USCIS’ projections indicate that they have now selected a sufficient number of registrations to reach the regular cap for FY 2025. 

Contact us with questions about the FY 2026 H-1B lottery.

Work-Authorized Ukrainian Employees May Request Extensions

USCIS recently announced that, beginning Feb. 27, 2024, certain Ukrainian citizens and their immediate family members paroled into the United States will be able to request an extension of parole (re-parole) for up to two additional years. Parolees who are approved by USCIS for an extension should print from the CBP I-94 website a copy of their updated electronic Form I-94, Arrival/Departure Record—which will show a class of admission of “UHP,” which stands for “Ukrainian Humanitarian Parole.”

For I-9 purposes, paroled Ukrainian citizens may present an unexpired Form I-94 listing “UHP” as the class of admission and a most recent date of entry on or before September 30, 2024. This Form I-94 can be used either for initial employment eligibility verification or upon reverification, subject to USCIS’ receipt rules. Forms I-94 bearing a most recent arrival date after September 30, 2024 cannot be used for employment eligibility verification; those individuals must use another document from the List of Acceptable Documents. 

E-Verify issued a notice reminding employers that they should not create a subsequent E-Verify case for re-paroled employees unless they are a new hire. This is consistent with the longstanding rule that employers should not create E-Verify cases for existing employees absent an exception. 

Contact us with questions about the I-9 process, including documents presented by paroled Ukrainian citizens.

Department of State Issues Disappointing September 2024 Visa Bulletin

The September 2024 Visa Bulletin is identical to the August 2024 Visa Bulletin, except that the Employment-Based (EB) 3^rd preference Worldwide category will retrogress for a full year in September. USCIS determined that, for September 2024, all employment-based preference categories must use the Final Action Dates chart. 

Contact us with questions about priority dates and the visa bulletin.