General information

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.

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.

The Department of State published information in the Federal Register about the online registration process for FY2026 diversity visas (DVs). Up to 55,000 immigrants can enter the United States each year from countries with low rates of immigration to the United States. The DV Program requires the principal DV applicant to have a high school education, or its equivalent, or two years of qualifying work experience as defined under provisions of U.S. law.

The online registration period for the DV-2026 program begins on Wednesday, October 2, and concludes on Tuesday, November 5. With the exception of Cuba, which is not eligible for DV-2026, there were no changes in eligibility from the previous fiscal year.

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.

On August 26, 2024, the United States District Court for the Eastern District of Texas, in Texas v. Department of Homeland Security, administratively stayed the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), from granting parole-in-place (PIP) under the Biden Administration’s Keeping Families Together program for another 14 days. In the meantime, USCIS can continue to accept and review PIP applications but cannot grant parole.

To comply with the district court’s administrative stay, USCIS will:

• Not grant any pending parole in place requests under Keeping Families Together.
• Continue to accept filings of the Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens.
• Continue to schedule biometric appointments and capture biometrics at Application Support Centers (ASCs).

The program, announced by the Biden Administration on June 18, 2024 and officially implemented on August 19, 2024, is a process for certain noncitizen spouses and noncitizen stepchildren of U.S. citizens to request parole-in-place under existing statutory authority.  If granted parole, and if otherwise eligible, these noncitizens may apply for adjustment of status to that of a lawful permanent resident without having to leave the United States and be processed by a U.S. consulate overseas. The district court’s administrative stay order does not affect any applications that were approved before the administrative stay order was issued at 6:46 p.m. Eastern Time on August 26, 2024.

If you have questions about the Keeping Families Together program, please schedule a consult with a CYA attorney today!