General information

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 Breanne Johnson Breanne Johnson No Comments

Understanding Birthright Citizenship: A Cornerstone of National Identity

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.

by Caroline Lee Caroline Lee No Comments

That’s a Wrap on the FY2025 H-1B Cap!

U.S. Citizenship & Immigration Services (USCIS) announced on December 2, 2024, that it has received enough petitions to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2025. The H-1B program for specialty occupations is highly sought after by visa applicants, with a large number of registrations each year. Annually, there is a limit of 65,000 H-1B visas which may be granted under the regular cap and 20,000 H-1B visas which may be allocated under the U.S. advanced degree exemption. With this announcement USCIS also stated that it will be notifying potential applicants of their non-selection from the lottery, through their online accounts. It is not anticipated that any further lottery selections will be made in this fiscal year.

USCIS will of course continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2025 H-1B cap. USCIS will continue to accept and process petitions filed to: 

  • Extend the amount of time a current H-1B worker may remain in the United States; 
  • Change the terms of employment for current H-1B workers; 
  • Allow current H-1B workers to change employers; and 
  • Allow current H-1B workers to work concurrently in additional H-1B positions. 

Didn’t receive a cap number in this year’s lottery? We’re already gearing up for the upcoming FY2026 lottery. Be sure to reach out to our firm in January 2025 to enter the lottery for next year!

by Caroline Lee Caroline Lee No Comments

USCIS Now Requires Medical Exams to be Filed with I-485 Applications

On Monday, December 2, 2024, U.S. Citizenship & Immigration Services (USCIS) announced that it will now require certain applicants filing Form I-485, Application to Register Permanent Residence or Adjust Status, to submit Form I-693, Report of Immigration Medical Examination and Vaccination Record, with their Form I-485 or the Form I-485 may otherwise be rejected. Previously, USCIS permitted applicants to file their Form I-485 without the medical exam and vaccination record, and USCIS would later issue a Request for Evidence for the outstanding items. As a requirement for permanent residence, applicants for adjustment of status generally must complete an immigration medical examination and all required vaccinations and submit a properly completed Form I-693 signed by a civil surgeon to show they are free from health conditions that would render them inadmissible under the health-related grounds.

USCIS stated it made this change, which is effective immediately, to reduce the number of Requests for Evidence issued before adjudicating a Form I-485. The immigration service has revised the Form I-485 instructions to make filing the two forms together a requirement for properly submitted applications.

Questions about this change or adjustment of status in general?  Contact us today to schedule a consultation with a CYA attorney.

by Caroline Lee Caroline Lee No Comments

USCIS to Begin Conducting Interviews for Some VAWA Self-Petitioners

USCIS recently announced an upcoming change to the Violence Against Women (VAWA) program.
Starting in December 2024, USCIS will begin conducting interviews for certain VAWA self-petitioners who have both an I-360 and an I-485 pending. USCIS has clarified that not all VAWA self-petitioners will be interviewed and individuals with stand-alone I-360s will not be interviewed at this time. USCIS will continue to adjudicate large portions of its I-360 workload without an interview. Interviews will be conducted at the USCIS Field Office with jurisdiction over the self-petitioner’s residence as listed on Forms I-360 & I-485, and the VAWA self-petitioner must appear in person for the scheduled interview.

USCIS has stated that officers will receive specialized training grounded in a victim-centered approach and that interviews will be conducted in a trauma-informed manner, addressing both I-360 and I-485 eligibility. Per USCIS, this change to include interviews does not alter eligibility requirements or evidentiary standards required by the regulations, and selection for an interview is not necessarily negative or indicative of a particular case outcome.

As for why some VAWA self-petitions will now receive an interview, USCIS decided to begin conducting these interviews in response to a significant increase in filings in recent years and several recent criminal proceedings regarding VAWA fraud, including three large-scale investigations in NY, MA, and MD. USCIS will also begin a larger public awareness campaign regarding VAWA fraud.

As we head into a new presidential administration, it is expected that adjustment cases of all types, including employment, may require an in-person interview. CYA will continue to monitor developments relating to the new administration and possible changes to immigration law and policy.

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 Breanne Johnson Breanne Johnson No Comments

U.S. Citizenship and Immigration Services Issues FAQ for DACA Recipients’ use of Advance Parole

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.

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 Breanne Johnson Breanne Johnson No Comments

Preparing for Changes in U.S. Business Immigration Policy Under a Second Trump Administration

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.

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