Author: Adrianna Romero

by Adrianna Romero Adrianna Romero No Comments

Cap-Gap Extended

In a move to address recent USCIS processing delays and to provide greater stability for F-1 visa holders, a new rule has been introduced that extends the work authorization period for certain individuals. Previously, F-1 students who presented an Employment Authorization Document (EAD/Form I-766) with category codes C03B or C03C, along with a Form I-797C receipt notice for an H-1B petition, would see their OPT/STEM OPT EADs extended until October 1 of the same calendar year. Under the updated rule, these individuals will now have their EADs extended through April 1 of the following calendar year.

This extension addresses growing concerns over delays in processing H-1B petitions and EAD renewals, which have left many F-1 visa holders with gaps in employment authorization. USCIS has cited a need for this change in response to increasing EAD filings, spiking petition volumes, and other circumstances that affect processing times.

Given that some EAD processing times now extend beyond fourteen months, USCIS advises applicants to submit their EAD renewal applications up to 180 days in advance of expiration. This new extension period provides critical relief to F-1 students and H-1B petition beneficiaries, ensuring they can continue to work while awaiting the adjudication of their petitions. The change also aims to mitigate the effects of the “cap-gap,” which historically leaves around 26,961 petitions unadjudicated by the beginning of each fiscal year, creating a significant gap in employment authorization.

This extended period not only helps alleviate the current backlog but also reflects USCIS’s commitment to enhancing the reliability of the process for future applicants.

by Adrianna Romero Adrianna Romero No Comments

USCIS Announces Final Rule Implementing the H-1B Visa Modernization Rule

On December 18, 2024, the U.S. Citizenship and Immigration Services (USCIS) published a final rule implementing significant updates to the H-1B visa program. The new rule is designed to modernize and improve the efficiency of the H-1B process, enhance benefits and flexibility for petitioners, and bolster integrity measures within the system.

For employers and foreign nationals navigating the H-1B landscape, the following key takeaways from the final rule are crucial to understand:

1. New Form I-129 Required Starting January 17, 2025

Beginning January 17, 2025, any H-1B petition filed must use the new Form I-129, Petition for a Nonimmigrant Worker. This form reflects the changes introduced by the final rule, including the updated eligibility criteria for H-1B specialty occupations.

2. Updated Definition of Specialty Occupation

A significant change in the final rule is the clarification of the “specialty occupation” definition. Under the updated rule, a position will qualify as a specialty occupation only if it requires the practical and theoretical application of specialized knowledge and at least a bachelor’s degree in a directly related specific specialty, or its equivalent field. Notably, USCIS has removed references to business administration or liberal arts degrees as ineligible general degree requirements, emphasizing the importance of the beneficiary’s actual course of study in relation to the position’s duties.

Petitioners seeking to establish that a role qualifies as a specialty occupation because a specific degree is “normally” required will now only need to demonstrate that it is “typical” or “common,” rather than proving that it is the absolute minimum requirement for all cases.

3. Changes to H-1B Cap Exemptions

The final rule revises the criteria for cap exemptions for nonprofit research and governmental research organizations. The new requirement is that research must be a “fundamental activity” of the organization to qualify for an exemption, rather than the prior “primary mission” criterion. Importantly, the rule clarifies that work performed at a qualifying institution can include telework or remote work.

Additionally, the rule specifies that to qualify for an ACWIA fee exemption, a nonprofit must be recognized by the IRS as tax-exempt under sections 501(c)(3), (c)(4), or (c)(6).

4. Refined Definition of U.S. Employer

USCIS has broadened the definition of “U.S. Employer,” no longer requiring that the petitioner maintain a direct employer-employee relationship. This change now includes those with legal presence in the U.S., a U.S. tax ID number, and the ability to service process. The revision also allows owner-beneficiaries to petition on their own behalf, providing more flexibility for self-petitioning.

5. Elimination of Itinerary Requirements and Changes to Third-Party Worksite Requirements

One major shift in the rule is the removal of the itinerary requirement. Previously, petitioners had to submit detailed day-to-day work assignments for the entire validity period of the H-1B petition. Now, petitioners only need to demonstrate that the position will exist at the start date of the petition, without detailing every assignment in advance.

For H-1B workers assigned to third-party worksites, USCIS will now examine the job requirements of the third-party, not the petitioner. The agency will focus on whether the job aligns with the third party’s organizational needs and operations. Importantly, the final rule formalizes the need for contracts, statements of work, and client letters to verify the bona fide nature of the job offer.

6. Expanded Site Visit Authority

USCIS has expanded its authority to conduct site visits for H-1B workers. Inspections may now be conducted at the petitioner’s worksite, remote work locations, and third-party customer sites, including the private residence of workers engaged in remote work. If USCIS is unable to verify any facts—due to non-cooperation from the petitioner or third parties—it may deny or revoke the petition.

7. Deference to Prior Determinations

The new rule codifies USCIS’s existing deference policy, meaning the agency will generally defer to prior determinations for the same parties unless there is a material error, a change in circumstances, or new adverse information that affects eligibility. This policy applies to all nonimmigrant classifications using Form I-129, not just H-1B petitions.

8. Changes to Extension of Status Petitions

Under the updated rule, petitions for extension of status for H-1B, L-1, O-1, and P-1 visa holders will now generally require supporting evidence, unless specifically requested by USCIS. This is a change from the previous regulation that indicated such evidence was not necessary unless explicitly requested.

9. H-1B Cap-Gap Extension Adjustments

The final rule adjusts the timeline for H-1B cap-gap extensions, extending the eligibility until April 1 of the fiscal year or the start date of the approved H-1B petition, whichever is earlier. Previously, these extensions only lasted until September 30, the day before the start of the new fiscal year.

10. Validity Period for Approved Petitions

The new rule clarifies how the validity period is determined in various scenarios, including when the petition is approved before or after the requested start date. If the approved petition’s dates differ from the requested validity period, USCIS may issue a Request for Evidence (RFE) to confirm or adjust the dates based on the Labor Condition Application (LCA).

11. Amended Petitions Clarification

The final rule also provides additional clarity regarding the filing of H-1B amended petitions, essentially codifying the Matter of Simeio Solutions decision. Under the new rule, a petitioner must file an amended petition if there is a material change in the terms and conditions of employment. This includes changes in job location or position duties. However, the rule also incorporates Department of Labor (DOL) guidance on when a new Labor Condition Application (LCA) is not required, such as for peripatetic (traveling) workers or short-term placements.

As always, it is advisable for employers and workers to consult with an experienced immigration attorney to ensure they meet the requirements of the new rule and avoid delays or denials in the application process

by Adrianna Romero Adrianna Romero No Comments

Out with the Old, In with the New

As of December 1, 2024, the Office of Foreign Labor Certification (OFLC) will officially decommission the legacy Permanent Online System, which has been in place for years to provide public access to permanent labor certification applications and final determinations. This marks a significant step in the Department of Labor’s ongoing technology modernization efforts.

The Foreign Labor Application Gateway (FLAG) System will fully replace the Permanent Online System. FLAG is designed to streamline processes, enhance customer service, and modernize the administration of foreign labor certification programs.

With less than one week left to access the legacy system, the OFLC is urging employers, attorneys, and other stakeholders to take action immediately. After December 1, 2024, the system will be offline, and all users will be redirected to FLAG. Applications still pending after November 30 will continue to be processed, but direct uploads to the system will no longer be available. Instead, stakeholders will need to submit their documents as PDF attachments via email, and the documents must include the case number and title.

This transition is part of the broader effort to improve the efficiency and accessibility of foreign labor certification processes.

For more information, please visit the OFLC website and make sure you are ready for the switch to FLAG.

by Adrianna Romero Adrianna Romero No Comments

DHS Announces Additional H-2B Visas to Support U.S. Businesses’ Seasonal Labor Needs

The U.S. Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), has announced the availability of 64,716 additional H-2B temporary nonagricultural worker visas for Fiscal Year (FY) 2025. This increase supplements the 66,000 H-2B visas made available annually and is designed to help American businesses meet the seasonal labor demands that often exceed the domestic workforce supply.

The H-2B program allows U.S. employers to hire foreign workers for temporary, nonagricultural jobs in industries such as hospitality, landscaping, seafood processing, and tourism. These additional visas come at a critical time, as businesses in these sectors face difficulty filling roles with local workers who are both qualified and willing to take on these temporary positions.

In line with past years, the supplemental visa allocation will be split into two main categories: 20,000 visas will be designated for workers from Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, while the remaining 44,716 will be allocated to returning workers who have previously held an H-2B visa within the last three years. The goal is to provide businesses with the flexibility to plan their workforce needs ahead of time, ensuring that they have enough workers during peak seasons, such as the summer.

The announcement also highlights the robust protections in place for both U.S. and foreign workers. DHS and DOL have implemented strict safeguards to ensure that employers first attempt to recruit U.S. workers before seeking foreign labor, in accordance with H-2B program regulations. Additionally, efforts are made to prevent exploitation of foreign workers by unscrupulous employers.

In making this announcement, Secretary of Homeland Security Alejandro N. Mayorkas emphasized the importance of the H-2B program in supporting the U.S. economy: “By maximizing the use of the H-2B visa program, the Department of Homeland Security is helping to ensure the labor needs of American businesses are met, keeping prices down for consumers while strengthening worker protections and deterring irregular migration to the United States.”

The additional visas will be available early in FY 2025, offering businesses time to hire workers well in advance of their peak seasons. DHS and DOL will continue to monitor and enforce the program’s labor protections to ensure fairness and prevent abuse. For more information on eligibility and filing requirements, businesses and potential workers can refer to the forthcoming temporary final rule and resources available on the USCIS website.

by Adrianna Romero Adrianna Romero No Comments

The Keeping Families Together Program: A Legal Setback

In August 2024, the Biden administration launched an initiative aimed at providing relief to mixed-status families – those in which one spouse is a U.S. citizen and the other is undocumented. The “Keeping Families Together” program sought to address the longstanding challenges faced by families where one partner lacked legal status. For many years, these couples have endured the heart-wrenching reality of forced separation due to the complexities of U.S. immigration law. Spouses without legal status often had to leave the U.S. to apply for legal status, facing lengthy waits and the constant fear of being separated from their families for years.

Under the new initiative, undocumented spouses of U.S. citizens were allowed to apply for legal status while remaining in the country, through a process called “parole in place.” This program was seen as a critical step toward reuniting families and providing a path to citizenship for those who had deep ties to the U.S. But in a significant setback for the administration and the families it aimed to help, a federal judge in Texas has blocked this program, dealing a blow to the Biden administration’s immigration efforts.

On 11/7/2024, Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas ruled that the Biden administration had overstepped its legal authority in implementing the parole program. His decision came after a lawsuit was filed by 16 Republican-led states, including Texas, challenging the program’s legality.

In his 74-page opinion, Judge Barker argued that the administration had misinterpreted its powers under the Immigration and Nationality Act. He concluded that the parole in place program extended beyond the scope of authority granted by Congress. According to the judge, the Biden administration’s interpretation of the law “stretches legal interpretation past its breaking point,” effectively ruling that the policy could not stand.

Advocacy groups, including the American Immigration Lawyers Association (AILA), have strongly criticized the ruling, arguing that it unfairly punishes families who have been living in the U.S. for years and are trying to follow the law. AILA President Kelli Stump called the ruling “simply wrong on the law,” emphasizing that the program did not create a new path to citizenship but rather allowed families to remain together while navigating the complex immigration system.

“[The program] was a sensible solution for hundreds of thousands of American families facing uncertainty and fear due to our broken immigration system,” Stump said. “To be clear, these applicants were already eligible for adjustment of status. The only thing the parole did was ensure they wouldn’t be separated while the bureaucratic process was underway.”

Stump went on to express dismay that spouses of U.S. citizens, some of whom had lived in the U.S. for over a decade, were now facing the prospect of separation again. “It is shameful that people who are the spouses of U.S. citizens or are the stepchildren of a U.S. citizen are being left in the cold again,” she concluded.

The Biden administration has indicated that it will appeal the ruling. The case is expected to move quickly through the appellate courts, with the Fifth Circuit Court of Appeals – which has a history of expediting immigration decisions – likely to rule within the next three to six months. If the case continues up the judicial ladder, it could eventually reach the U.S. Supreme Court, where it would be prioritized given the national implications of the case.

However, even with the expedited timeline, a final resolution through appeals could take anywhere from six months to a year or more. In the meantime, families affected by the ruling will remain in limbo, unsure of their future in the U.S. and the possibility of reuniting with their loved ones.

by Adrianna Romero Adrianna Romero No Comments

Update on DACA: Fifth Circuit Hearing Recap

On October 10, 2024, the Fifth Circuit Court of Appeals heard oral arguments regarding the Deferred Action for Childhood Arrivals (DACA) program. This hearing marked a crucial moment in the ongoing legal battle over DACA’s future, following the court’s prior ruling that deemed the program unlawful.

What Happened in the Hearing

During the proceedings, both sides presented their arguments regarding the legality and implications of DACA. Supporters of the program emphasized the significant contributions of DACA recipients to their communities and the economy, while opponents reiterated their concerns over the program’s legality and potential overreach.

What’s Next?

As we await the Fifth Circuit’s decision, the implications for DACA recipients remain significant. If the court rules against DACA, the case is likely to escalate to the Supreme Court, prolonging the uncertainty surrounding the program.

Consider Advance Parole

In light of the potential outcomes, we urge all DACA recipients to consider applying for DACA advance parole. This procedure allows eligible noncitizens to travel outside the U.S. and return legally.

To qualify for advance parole, you must:

  1. Have an active DACA authorization: Ensure your current DACA status is valid.
  2. Possess a valid, unexpired passport: This must be from your country of citizenship.
  3. Have a qualifying reason for travel: Acceptable purposes include education, employment, or humanitarian needs.

Traveling on advance parole can provide lawful entry that will aid in pursing other immigration options.

Need Assistance?

If you’re considering applying for advance parole or have questions about your eligibility, don’t hesitate to reach out to CYA at [email protected].

by Adrianna Romero Adrianna Romero No Comments

LSU Women’s Basketball Player Sues USCIS Over Visa Denial

Last-Tear Poa, an Australian basketball player for LSU, has filed a lawsuit against U.S. Citizenship and Immigration Services (USCIS) after her P-1A Athlete visa application was denied. The lawsuit, first reported by On3, challenges USCIS’s decision following Poa’s substantial contributions to the Tigers, including their first national championship title in the 2022-23 season. Hailing from Melbourne, Poa joined LSU in 2022 after showcasing her talent at Northwest Florida State College, where she established herself as one of the nation’s top junior college prospects.

The P-1A visa is designed for internationally recognized athletes who can demonstrate their intent to compete at a major level in the U.S. Poa applied to change status from F-1 to P-1A to participate in Name, Image, and Likeness (NIL) opportunities, which allow college athletes to profit from their personal brands. While NIL rights were officially legalized by the NCAA on July 1, 2021, the lack of clear guidance from USCIS on how international athletes on F-1 status can navigate these regulations leaves many, like Poa, in uncertain positions. International athletes make up about 12% of all Division I student-athletes, the absence of effective guidance continues to create challenges for a significant portion of the most talented collegiate athletes. Poa’s case highlights the pressing need for clearer policies and could potentially bring much-needed attention to the complexities surrounding NIL participation for international athletes.

by Adrianna Romero Adrianna Romero No Comments

DACA Struck Down by Texas Judge for the 2nd Time

In yet another twist in the ongoing saga of the Deferred Action for Childhood Arrivals (DACA) program, a federal judge in Texas has ruled that the Biden administration’s efforts to codify DACA into federal regulation are unlawful. Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas made this ruling in response to a lawsuit filed by Republican-led states, echoing his similar decision in 2021 when he declared the original DACA memo established by the Obama administration illegal. However, what sets this ruling apart is that, despite finding the Biden administration’s DACA regulation unlawful, Judge Hanen did not order the immediate termination of the program.

In his latest ruling, Judge Hanen found no “material differences” between the original 2012 DACA policy and the Biden administration’s 2022 effort to transform it into a federal regulation. While he kept DACA closed to new applicants, he allowed current beneficiaries to renew their enrollment, expressing sympathy for their situation. However, he also emphasized that the fate of DACA recipients should ultimately be determined by Congress, not the courts or the executive branch.

The Biden administration is expected to appeal this decision, and the case is likely to eventually reach the Supreme Court. The 5th Circuit Court of Appeals, responsible for reviewing appeals of Judge Hanen’s rulings, also declared DACA illegal last year, further complicating the situation.

DACA has been at the heart of the nation’s contentious immigration debate since its inception 11 years ago. While Congress has considered several bipartisan proposals to provide permanent legal status to DACA recipients and other undocumented immigrants brought to the country as children, these efforts have often become entangled in broader, partisan debates over immigration policy, including issues related to the southern border.

Homeland Security Secretary, Alejandro Mayorkas, disputed Judge Hanen’s ruling, emphasizing that it undermines the security and stability of more than half a million Dreamers who have contributed to their communities. The White House, represented by press secretary Karine Jean-Pierre, pledged to continue defending DACA from legal challenges and called on Congress to provide permanent protection for Dreamers.

For now, current DACA recipients can continue renewing their status, but USCIS will not process new applications. While this offers temporary relief to DACA recipients, it underscores the urgent need for comprehensive immigration reform to provide a more permanent solution for these young immigrants who have spent years in limbo. The coming legal battles and political discussions will undoubtedly shape the fate of DACA and the Dreamers who depend on it.

by Adrianna Romero Adrianna Romero No Comments

Immigration Processing Centers set to open in Central and South America

The Title 42 Covid Ban invoked by the Trump Administration is set to end on May 11, 2023. The controversial policy allowed officials at the southern border to quickly deny asylum seekers due to the ongoing COVID pandemic emergency. Now that the Biden Administration has decided to lift the ban, thousands of applicants are expected at the border in hopes of receiving protection under asylum regulations. In an effort to ease the burden at the southern border, the Biden Administration will be opening Processing Centers in Guatemala and Columbia. The intention is to have applicants present their asylum claims at these centers without having to make the dangerous journey through Latin America and Mexico to get to the US. However, new policies will also permit CBP officers to deny asylum claims at the border if they did not apply for asylum in the countries they passed through or set an appointment with CBP. With the cooperation of the Mexican government, CBP will quickly expel ineligible asylum seekers from several countries, back to Mexico. The Secretary of Homeland Security, Alejandro Mayorkas, called on Congress to provide resources as they prepare for the anticipated surge of asylum applicants and unauthorized entries next month.

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