General information

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.

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.

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.

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 info@cyavisalaw.com.

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.

H-1B cap season is closer than you think!  If you are an employer planning to register one or more employees in the spring lottery for FY 2026, or if you’re an employee whose employer will be registering you, here’s a tip to ensure you’re prepped and ready once the new year hits. Last year, USCIS instituted a new beneficiary-centric process for registration whereby lottery selections are made by unique beneficiary rather than by registration. The final rule went into effect on March 4, 2024, and applied to the fiscal year (FY) 2025 registration process. Starting with the FY 2025 initial registration period, USCIS is now requiring registrants to provide valid passport information or valid travel document information for each beneficiary. The passport or travel document provided must be the one the beneficiary, if or when abroad, intends to use to enter the United States if issued an H-1B visa. Each beneficiary must only be registered under one passport or travel document. Thus, if your employee has multiple citizenships and holds a passport from more than one country, they will need to select which passport they will use to register, and subsequently use for the H-1B petition if selected in the lottery. Moreover, if your employee does not have a valid passport, now is the time to obtain or renew that passport!  As a reminder, only those with selected registrations are eligible to file H-1B cap-subject petitions.

Questions about the upcoming H-1B cap season?  Schedule a consultation with a CYA attorney today!

On Friday, October 18, several agencies within the Department of Homeland Security signaled forthcoming protections to certain Lebanese nationals currently living in the United States. U.S. Citizenship & Immigration Services (USCIS) published a notice of employment authorization for Lebanese individuals covered by the Deferred Enforced Departure (DED) program for Lebanon. Additionally, Immigration and Customs Enforcement (ICE) published a notice of employment authorization for certain Lebanese students. Moreover, USCIS will publish additional details regarding a planned Temporary Protected Status (TPS) designation for Lebanon in a forthcoming Federal Register notice. The designations are a positive step forward for DED- and TPS-eligible Lebanese nationals, as they will be allowed to work and temporarily remain in the United States.

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.

On Monday, October 14, 2024, USCIS provided additional guidance on the criteria used to adjudicate international travel applications (Advance Parole). USCIS clarified that travel-related expedite requests can be made in situations where USCIS processing times prevent timely adjudication and approval of the requested travel documents. USCIS indicated that, as long as the applicant timely filed their travel application, they will consider expedite requests in situations where there is a pressing or critical need to travel outside the United States for planned events such as work or professional commitments (including meetings, conferences, forums, seminars, or training), academic commitments (such as a study abroad program, research trip, forum, seminar, conference or practicum), or personal commitments (such as a wedding or graduation).

Without providing much notice, USCIS released a new Form I-131 on Friday, October 11, 2024.  Because there are major changes to the form, USCIS has announced that it will not accept the old edition of Form I-131 (April 1, 2024) on or after October 11, 2024.  We are hoping that USCIS provides some flexibility in accepting the prior edition of Form I-131 for a little while, but there is no guarantee that USCIS will accept the old version. The best advice is to submit the new edition of the form.