Author: Breanne Johnson

The processing timeline for H-4 and L-2 dependents and H-4 and L-2 employment authorization documents is about to change significantly. Two years ago, USCIS entered into a settlement agreement called Edakunni, et al. v. Mayorkas, No. 21-cv-393-TL (W.D. Wash.). In this agreement USCIS agreed to bundle the processing (i.e. process together) of applications to change or extend nonimmigrant status for H-4 or L-2 dependents, as well as applications for employment authorization filed by H-4 or L-2 spouses when filed at the same time and location as the underlying H-1B, L-1A, or L-1B nonimmigrant worker’s application. This bundling applied to applications filed under both standard and premium processing.

Unfortunately, this settlement is set to expire on January 18, 2025, two years after the settlement agreement’s effective date. 

USCIS has not said whether the agency will continue to bundle the processing of these forms after the settlement agreement expires.  While USCIS is not required to stop bundling these cases after the expiration of the settlement agreement, it is expected that the agency will do so. This means that H-4 and L-2 dependents can expect greater processing times for their immigration applications, especially for cases that would have been filed with premium processing.

The Department of Homeland Security (DHS) has announced 18-month extensions of Temporary Protected Status (TPS) for Ukraine, Sudan, and Venezuela. To maintain TPS and Employment Authorization Documents (EADs), eligible individuals must complete the re-registration process. Detailed re-registration procedures and eligibility criteria will be provided in upcoming Federal Register notices. Additionally, DHS has released an advance copy of a notice extending TPS for El Salvador, effective from March 10, 2025, through September 9, 2026. This notice is scheduled for publication in the Federal Register on January 17, 2026.

Birthright citizenship grants individuals automatic citizenship based on their place of birth, regardless of their parents’ nationality. This principle, embedded in the 14th Amendment of the U.S. Constitution, ensures that all individuals born on American soil are citizens of the country. This inclusive policy reflects core democratic values, emphasizing equality and the idea that national identity transcends race, religion, and heritage. It has also played a vital role in shaping the cultural diversity and resilience of the United States.

While widely seen as a safeguard for equality and inclusion, birthright citizenship remains a topic of political and legal debate. Advocates argue it upholds constitutional rights and enriches societies through diversity. Critics, however, raise concerns about immigration policies and potential abuses of the system. Despite differing perspectives, birthright citizenship serves as a powerful reminder of a nation’s commitment to providing opportunities and recognition to everyone who begins their life within its borders. This foundational principle underscores the broader ideals of freedom, fairness, and the promise of belonging.

This week U.S. Citizenship and Immigration Services authored a FAQ that confirmed DACA recipients may be granted advance parole to travel internationally to non-immigrant consular visa interviews. This guidance is limited to consular interview attendance for employer-sponsor nonimmigrant visas. Any DACA recipients eligible for a nonimmigrant work visa must file for advance parole and have that application approved before leaving the country. Emergency advance parole may also be issued by USCIS in this scenario. For more information, please consult the USCIS DACA FAQs website or reach out to one of our attorneys for a consultation.

With former President Donald Trump’s return to office, U.S. immigration policy is likely to undergo substantial changes that will impact business immigration. Drawing on Trump’s prior administration, his campaign promises, and recent expert analyses, we can anticipate shifts in policy that will directly affect employers and noncitizen employees in a myriad of ways. Here are a few ways that we might see business immigration change with the new administration:

1. Higher Scrutiny for H-1B Visas: One of the main changes we anticipate is heightened scrutiny for H-1B applications, likely leading to stricter requirements and a rise in RFEs and denial rates. The Trump administration may look to restrict the definition of specialty occupation, raise prevailing wages, and eliminate prevailing wages levels 1 & 2. Additionally, the administration may attempt to scale back or eliminate the H-4 EAD program, which currently permits spouses of H-1B visa holders to work in the U.S.
2. Increased Compliance and Enforcement Measures: Employers can expect an uptick in compliance demands across nonimmigrant and immigrant visa programs. The Trump administration may push for mandatory E-Verify nationwide, requiring all employers to verify the work eligibility of their employees. Worksite audits and I-9 Employment Eligibility Verification checks could become more frequent, with substantial penalties for non-compliance.
3. Focus on Merit-Based Immigration: Merit-based immigration, a hallmark of Trump’s initial policy agenda, is likely to re-emerge. This approach prioritizes skilled immigrants who can directly contribute to the economy rather than family-based or humanitarian entries. Legislative efforts may prioritize applicants based on skills, education, and economic contributions, which could reshape the demographic makeup of employment-based visas.
4. Restrictions on Humanitarian Programs: The Trump administration is expected to curtail humanitarian immigration programs. Proposals to end Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) are on the table, affecting thousands of foreign nationals who currently have work authorization. Changes in asylum policies and restrictions on humanitarian parole programs could also impact business immigration, as these programs often allow qualified individuals to work legally in the U.S.
5. Potential Reinstatement of Travel Bans: The return of travel bans, particularly those based on nationality or ideological beliefs, may impact international business travel and recruitment. The administration could reinstate or expand these bans, potentially creating complications for multinational companies and U.S.-based businesses that rely on a globally mobile workforce.
6. Revisions to Work Authorization for Specific Visa Categories: Policies affecting the H-4 EAD program and the Optional Practical Training (OPT) program for international students on F-1 visas are likely to be revisited. Changes to work authorization for these visa categories could limit employment opportunities for highly skilled foreign professionals. Additionally, a rollback of visa interview waivers could result in longer wait times and increased security vetting and administrative processing – impacting both current and prospective employees who require visas.

A second Trump administration will likely bring sweeping changes to U.S. immigration policy, with a strong focus on limiting legal immigration and enhancing compliance measures. Staying informed and planning strategically will be key for any organization relying on a diverse, globally sourced talent pool in a potentially restrictive immigration environment.

On June 18, President Biden signed an executive order designed to streamline the D3 waiver process for foreign-born college graduates and DACA (Deferred Action for Childhood Arrivals) recipients. This initiative is a key component of the administration’s broader efforts to create a more efficient and predictable immigration system, particularly benefiting foreign graduates of U.S. colleges and universities who have job offers in fields related to their degrees.

What Is the D3 Waiver?

The D3 waiver is a waiver of inadmissibility that allows a foreign national to request that the US government waive an inadmissibility ground so the applicant can re-enter the US. This waiver process allows foreign graduates and certain individuals, like DACA recipients, to re-enter the United States for employment opportunities related to their qualifications. However, this process has historically been slow, confusing, and unpredictable, causing significant frustration for applicants and their U.S. employers. On average, approval can take several months to over a year, leaving applicants in a state of uncertainty.

Key Changes in the Executive Order

The executive order introduces updated guidance for consular officers responsible for reviewing and processing D3 waiver applications. It aims to expedite the process and emphasizes the importance of these individuals to the U.S. workforce and economy. The new guidance directs officers to consider the following specific factors when deciding on D3 waiver applications:

• Emphasis on U.S. Graduates and Skilled Labor: Consular officers are instructed to recognize that applicants who have graduated from U.S. institutions or possess skilled labor qualifications contribute positively to the public interest in the United States. This is particularly true for those seeking to start or continue employment in fields that align with their educational background or skill set.

• Expedited Processing: The updated guidance encourages consular officers to accelerate the application and approval process for qualified individuals, aiming to reduce the waiting time and uncertainty that applicants currently face which waiting for the waiver to be adjudicated.

By emphasizing the value of foreign graduates and skilled workers in the U.S., the administration seeks to enhance the country’s competitiveness and economic growth. The executive order underscores the need for a more efficient and predictable system that benefits both the applicants and their prospective employers. The updated D3 waiver process provides a faster pathway for talented individuals to contribute to the U.S. economy. This change not only benefits foreign graduates and DACA recipients but also U.S. companies eager to tap into the talent pool these individuals represent.

The Visa Bulletin is a monthly publication issued by the U.S. Department of State that provides updated information on the availability of immigrant visa numbers for individuals seeking permanent residency (green cards) in the United States. It is primarily used by people applying for family-sponsored and employment-based immigration, providing them with “priority dates” that determine their place in line for a visa, based on their application category and country of origin. The bulletin includes two main charts: one for “final action dates,” which indicates when visas may be issued, and one for “dates for filing,” which shows when applicants can submit their green card applications. The Visa Bulletin helps applicants track their progress toward receiving a visa amidst the U.S.’s limited annual quotas.

October starts the federal government’s fiscal year, and this first Visa Bulletin of FY2025 left many visa applicants disappointed with its limited progress and in some cases retrogression. For example, EB-3 China Final Action retrogresses five months from September 1, 2020, to April 1, 2020. Similarly, EB-3 China Dates for Filing retrogresses from July 1, 2021, to November 15, 2020. However, some categories such as EB-3 worldwide Final Action jumped ahead nearly two years. The October 2024 Visa Bulletin does not provide guidance on expectations for the remainder of the fiscal year, but does reset visa availability for the fiscal year. This year’s conservative start has many applicants bracing themselves for longer and longer wait times.

Beginning this September 2024, USCIS will start automatically extending the validity of lawful permanent resident cards to 36 months for permanent residents who file the Form I-90 to renew their expiring green card. Previously, a 24-month automatic extension was applied. Individuals taking advantage of this 36-month automatic extension will need to show their expired green card in addition to the Form I-90 receipt notice to take advantage of the extension for employment authorization and international travel purposes.

On Monday, the U.S. Department of State made a significant announcement: all available Employment-Based Second Preference (EB-2) visas for fiscal year 2024 have been issued. This marks an important update in the annual visa allocation process and will impact employers and workers seeking to utilize this immigration pathway.

The EB-2 visa is designed for foreign professionals with advanced degrees or individuals with exceptional abilities. However, the number of these visas issued each year is limited by the Immigration and Nationality Act (INA), which sets a cap at 28.6% of the worldwide employment-based visa limit. For the 2024 fiscal year, the cap has already been met, meaning U.S. embassies and consulates will not issue any more EB-2 visas until the next fiscal year begins on October 1, 2024.

For U.S. employers, this development temporarily halts the ability to permanently hire foreign talent through the EB-2 program. Foreign workers aiming to secure EB-2 visas will need to wait until the new fiscal year to either apply or continue their application process.

This news follows last month’s announcement from the State Department that all visas in the Employment-Based Third Preference (EB-3), Other Workers (EW), and Employment-Based Fifth Preference (EB-5) categories had also been fully issued for FY 2024. As the new fiscal year approaches, both employers and visa applicants will be looking forward to fresh opportunities in 2025.

In 2017 the US Supreme Court heard the case of Sessions v. Morales-Santana. This case dealt with the issue of gender-based discrimination in the context of U.S. citizenship law. The case addressed whether the Immigration and Nationality Act’s (INA) provisions for acquiring U.S. citizenship at birth violated the Equal Protection Clause of the Constitution.

The specific question was whether the INA’s differing requirements for a U.S. citizen parent to transmit citizenship to a child born abroad based on the parent’s gender were unconstitutional. Under the law, if a U.S. citizen father had a child abroad, the father had to meet a higher residency requirement than a U.S. citizen mother in order for the child to automatically acquire U.S. citizenship.

In Morales-Santana, the Supreme Court found that the gender-based disparity in these requirements was unconstitutional and did violate the Equal Protection Clause of the Constitution. The Court ruled that the law must provide equal treatment for both fathers and mothers in terms of the residency requirements necessary for a child born abroad to acquire U.S. citizenship. The decision required the government to apply the same residency requirements to both mothers and fathers, thus aligning with principles of gender equality under the Constitution.

In its newly released guidance and pursuant to the decision in Morales-Santana, USCIS clarifies how and when children may obtain US citizenship if they were born abroad through their US citizen parent or parents. Want to know more? Schedule a consultation with a CYA attorney!