General information

On October 20, 2023, the Department of Homeland Security (DHS) issued a notice of proposed rulemaking designed to provide much-needed updates to the H-1B specialty occupation program. Per DHS, the proposed rule will “modernize the H-1B specialty occupation worker program by streamlining eligibility requirements, improving program efficiency, providing greater benefits and flexibilities for employers and workers, and strengthening integrity measures.”

The H-1B nonimmigrant visa program permits U.S. employers to temporarily employ foreign workers in specialty occupations, which are defined by statute as occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent. The H-1B program is highly regulated and quota-based; demand for H-1B visas significantly outpaces the number of available visas each year.

Highlights of the proposed rule include:

• Streamlining eligibility requirements – the criteria for specialty occupation positions would be revised to clarify that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position;
• Improving program efficiency – the proposed rule codifies that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new filing;
• Providing greater benefits and flexibilities for employers and workers – certain exemptions to the H-1B cap would be expanded for certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. DHS would also extend certain flexibilities for students on an F-1 visa when students are seeking to change their status to H-1B. Additionally, DHS would establish new H-1B eligibility requirements for rising entrepreneurs; and
• Strengthening integrity measures – in addition to changing the selection process, misuse and fraud in the H-1B registration process would be reduced by prohibiting related entities from submitting multiple registrations for the same beneficiary. The rule would also codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition.

The notice of proposed rulemaking was published in the Federal Register on October 23, 2023. A 60-day comment period is now open, and at this time the rule remains a proposal, and not final.

If you have questions about the H-1B program or the proposed rulemaking, reach out to the attorneys at CYA to schedule a consultation!

In 2024, the U.S. Department of State is set to launch the Stateside Visa Renewal Pilot Project, an initiative aimed at simplifying the visa renewal process for eligible applicants currently in the United States. This project holds great promise, offering convenience, expedited processing, and a reduction in the visa renewal backlog.

While not all details of the program are currently available, we know the pilot project will:

• Begin in early 2024;
• Be limited to H-1B principals only;
• Be limited to nationals of countries that are not subject to reciprocity fees;
• Have eligibility requirements like those for participation in the interview waiver program;
• Be available for 20,000 applicants; and
• Be voluntary participation.

This initial pilot program is intended to be a limited test of the operationality of the stateside renewal program. While the project boasts numerous benefits, it’s essential to acknowledge the challenges, such as limited eligibility and potential administrative changes. Nevertheless, the Stateside Visa Renewal Pilot Project represents a significant stride forward towards a more user-friendly and efficient immigration system.

On October 19, 2023, the U.S. Department of Homeland Security (DHS) announced the immediate start of visa-free travel to the United States for up to 90 days for eligible Israeli citizens. Starting today, Israeli citizens can apply for authorization to travel to the U.S. through the Visa Waiver Program by obtaining an approved ESTA (Electronic System for Travel Authorization) from U.S. Customs and Border Protection. On September 26, 2023, DHS, in consultation with the U.S. Department of State, designated Israel as a Visa Waiver Program (VWP) country. The Visa Waiver Program allows eligible travelers to travel to the United States without having to obtain a visa at a U.S. Consular Office for short periods of time for tourism or business purposes.

ESTA is an automated system that assists in determining eligibility to travel to the United States under the Visa Waiver Program and whether such travel poses any law enforcement or security risk. Upon completion of an ESTA application, travelers are notified of their eligibility to travel to the United States under the Visa Waiver Program. DHS uses the application data to vet travelers before granting authorization to travel to the United States. As part of this vetting process, information that identifies suspected or known violators of the law and other persons of concern will be provided to the appropriate law enforcement, national security, and/or counterterrorism agency. 

Participation in the VWP requires that any citizen seeking to enter the United States visa free be from a country that extends to U.S. citizens and nationals the privileges we would extend to their citizens and nationals.  Israel has committed in writing to the United States that all U.S. citizens traveling with a U.S. passport may seek to enter Israel without regard to national origin, religion, or ethnicity.  The United States continuously monitors implementation of program requirements by all Visa Waiver Program countries, including Israel, to ensure that they remain in good standing with all program requirements. 

USCIS is issuing advance parole documents that are valid for five years to those individuals who are eligible for five-year employment authorization documents (EADs). The advance parole documents are being issued as separate advance parole documents or as EAD/AP combo cards.

On Monday, Oct. 2, the U.S. Supreme Court declined to review a long-litigated case on practical training and work authorization for international students. The Washington Alliance of Technology Workers (Washtech) argued that the Department of Homeland Security (DHS) could not expand Optional Practical Training (OPT) from 12 to 36 months in science, technology, engineering and math (STEM) fields. However, several court decisions previously found that DHS possessed the authority to expand STEM OPT to 36 months. Washtech filed a petition for writ of certiorari to ask the Supreme Court to review a D.C. Circuit decision in favor of DHS’s authority. The Supreme Court denied the petition, signaling that no further review of the D.C. Circuit’s earlier decision in favor of STEM OPT will occur.

OPT and STEM OPT allow international students to remain in the U.S. and work after graduation from their educational programs. Of particular importance, the additional 24 months in STEM OPT allows employers more time and a better opportunity to secure an H-1B petition for students, as H-1B lottery numbers have become increasingly difficult to secure. The Supreme Court’s decision ensures that STEM OPT will remain protected and available for international students in the STEM fields.

As we look ahead to the 2024 H-1B lottery, please reach out to schedule a consultation if you have current employees on OPT or STEM OPT and are interested in entering them in the lottery!

USCIS announced yesterday that beginning on October 1, 2024 biometrics fees will be waived for all applicants who file Form I-539. This form is used to petition USCIS to extend or change nonimmigrant status in the United States. Applicants do not need to pay the $85 biometrics fee if their application is postmarked Oct. 1 or later. However, certain applicants who file Form I-539 before Oct. 1 will need to include this $85 fee. These applicants will still be scheduled for an ASC appointment and should still attend this appointment. Please reach out to your CYA attorney for any questions about this welcome development.

Starting on October 1, 2023, employment authorization documents (EADs), both initial and renewals, will be issued for a validity period of 5 years for certain non-citizens.  Those who are eligible for the 5-year period of work authorization include adjustment of status applicants, those who have pending asylum applications, refugees and asylees, as well as those applying for cancellation of removal in removal proceedings. 

On September 21, 2023, the Biden Administration announced an 18-month extension and expansion of Temporary Protected Status (TPS) for Venezuelans who came to the U.S. prior to July 31, 2023, due to unsafe conditions in Venezuela.  Temporary Protected Status provides temporary legal status in the U.S. and work authorization for those who meet certain criteria.  The administration will be publishing an official announcement in the Federal Register with further details.   

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.

Given the scope and destruction of the recent wildfires on Maui, U.S. Citizenship and Immigration Services issued a fact sheet on the 2023 Hawaii wildfires and its impact on I-9 and E-Verify.  The fact sheet contains information on completing Form I-9 or reverifying when an employee’s documents are lost, stolen, or damaged, as well as how to recreate destroyed Form I-9 records.  For example, new employees whose documentation was lost, stolen or damaged may present a receipt showing they have applied for a replacement document.

For more information on I-9 or E-Verify compliance, schedule a consultation with a CYA attorney today.