Visa Lawyer Blog

Articles Posted in Professionals

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engineer-4922781_1280On January 15, 2025, the U.S. Citizenship and Immigration Services (USCIS) released updated police guidance for EB-2 National Interest Waiver petitions.

The updated policy guidance is effective immediately and applies to requests pending or filed on or after its publication date of January 15.

This guidance provides insights into how USCIS officials will determine eligibility for NIW petitions for employment-based immigrants, who are seeking a waiver of the job offer requirement, and thus labor certification.

Updated Policy Highlights

  • Clarifies that a petitioner seeking a national interest waiver must first demonstrate qualification for the underlying EB-2 classification, as either a member of the professions holding an advanced degree, or an individual of exceptional ability in the sciences, arts, or business.
  • Explains that USCIS considers on a case-by-case basis whether the occupation in which the person proposes to advance an endeavor is a profession and, if applicable, whether the 5 years of post-baccalaureate experience is in the specialty, noting that it is the petitioner’s burden to establish each element of eligibility.
  • Clarifies that USCIS determines the relationship between exceptional ability and the proposed endeavor on a case-by-case basis, considering any shared skillsets, knowledge, or expertise.
  • Provides additional guidance, with examples, about how USCIS evaluates whether a proposed endeavor has national importance.
  • Explains how USCIS evaluates evidence such as letters of support and business plans, when determining whether a person is well positioned to advance an endeavor.
  • Clarifies, with examples, that not every entrepreneur qualifies for a national interest waiver. While USCIS decides each case on its merits, broad assertions regarding general benefits to the economy and potential to create jobs will not establish an entrepreneur’s qualification for a national interest waiver.
  • Explains that, as with all adjudications, USCIS evaluates all of the evidence in the aggregate, and that the list of suggested evidence for entrepreneurs is not intended to suggest that any one piece, by itself, necessarily establishes eligibility. USCIS reviews all of the person’s education, experience, and skills and the benefit to the national interest when determining eligibility.

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54160491284_b32055f6df_oAfter years of criticizing the H-1B work visa program, benefitting highly skilled foreign talent, on Saturday the President-elect shocked the world when he pledged his support for the program.

In an interview with the New York Post, Trump said, “I’ve always liked the visas, I have always been in favor of the visas. That’s why we have them,” referring to the H-1B program, which allows U.S. companies to hire foreign workers in specialty occupations.

The President elect went on to say, “I have many H-1B visas on my properties. I’ve been a believer in H-1B. I have used it many times. It’s a great program.”

These comments are a sudden change from Trump’s usual hardline stance on H-1B visas. During his first term in office, Trump passed an executive action known as “Buy American and Hire American,” which restricted access to H-1B visas.

His administration was also responsible for a dramatic increase in the issuance of Requests for Evidence, as well as denials of H-1B worker petitions—a record high when compared to previous administrations.

Since speaking with the media, Trump allies Elon Musk and Vivek Ramaswamy, both made posts on social media vehemently pledging their support for the H-1B visa program.

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pennant-1689011_1280New changes to the H-1B work visa program are coming on January 17, 2025.

A new final rule published by the Department of Homeland Security (DHS) in the Federal Register lays out some of the critical changes that H-1B beneficiaries and U.S. employers can expect. These changes will become effective on January 17, 2025, just three days before the inauguration of Donald Trump.

While we do not know whether these changes will be overturned or modified by the Trump administration, it is important for both employers and beneficiaries to be aware of them.

Highlights of the Final Rule

  • Modernizes the definition and criteria for H-1B specialty occupations
  • Introduces cap-gap protections for F-1 students seeking a change of status to H-1B
  • Streamlines the processing of applications for individuals who were previously approved for an H-1B visa
  • Allows H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to certain conditions (such as founders and entrepreneurs)
  • Clarifies that employers must have a legal presence in the United States

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donald-trump-2030308_1280In this blog post, we discuss how Trump’s return to the White House on January 20th could impact employment-based visa applicants and their employers in the years ahead.

While the Trump campaign has been very vocal about their zero-tolerance policy toward illegal immigration, much less has been said about employment-based immigration. For that reason, it has been hard to know exactly what lies ahead for foreign workers.

While we don’t have all the answers, Trump’s track record on employment-based immigration helps provide insights into the changes we are likely to see during his second term.

To help readers understand how the incoming Trump administration may impact employment-based immigration, we have drawn up the top five areas where there is a high likelihood that changes may be introduced either by executive action or internal policymaking.

This information is based on our collective experience dealing with immigration agencies during Trump’s first term in office. Readers should be aware that none of this information is set in stone. Immigration policies are likely to evolve as the Trump administration settles in and as the political climate becomes more balanced.

Increasing Vetting and Processing Times for Employment-Based Workers

Foreign workers who plan to file employment-based cases should be aware of the following potential changes in the months ahead.

  1. The Return of Employment-Based Green Card Interviews?

In 2017, the Trump administration made the employment-based green card application process much more difficult when it required adjustment of status applicants to attend in-person interviews.

This directive was handed down with the passage of Trump’s executive order known as “Protecting the Nation from Foreign Terrorist Entry Into the United States.” This executive order was meant to crack down on immigration, by combating fraud and abuse in the green card process.

The decision to reinstate visa interviews for employment-based green card applicants led to a sharp increase in processing times at USCIS offices nationwide. This was due to the increased demand for interviews and limited resources available to accommodate the surge in applicants.

While in-person interviews are generally required under the law, prior to Trump’s presidency, the U.S. Citizenship and Immigration Services (USCIS) waived in-person interviews for a broad category of applicants, including employment-based green card applicants to better allocate resources toward higher risk cases.

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ai-generated-9069956_1280The fallout of the 2024 Presidential election has left high-skilled foreign workers asking what the Trump administration may have in store for them in the new year.

Perhaps the most vulnerable to attack is the H-1B work visa program, which was previously targeted by the Trump administration. A second term for Donald Trump promises to bring a new set of challenges for H-1B workers, including a hike on mandated salaries paid by U.S. employers, and increased scrutiny leading to a predicted surge in Requests for Evidence and H-1B visa denials.

About the H-1B Work Visa

H-1B workers are a subset of professional workers that have long filled a critical need in the U.S. labor market, especially for those working in the sciences, technology, engineering, and mathematics (STEM) fields.

Every year, U.S. employers from hundreds of industries use the H-1B visa program to bring highly skilled and well-educated foreign professionals to work for them in the United States. To qualify, H-1B workers must have a job offer from a U.S. employer to work in a “specialty occupation,” which requires a baccalaureate degree or the equivalent work experience to work in the field. Applicants must demonstrate that they have the academic and professional qualifications to work for the U.S. employer.

Only 65,000 H-1B visas are available every year, with an additional 20,000 visas made available to professionals with a U.S. master’s degree or higher in their field.

The annual visa limits mean that the H-1B work visa program is a “lottery” based visa, requiring employers to submit an electronic registration every Spring, to have a chance of being selected.

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We are pleased to report that today the U.S. Department of State’s Bureau of Consular Affairs published the December Visa Bulletin. Unfortunately, the December Visa Bulletin brings almost no movement.

USCIS Adjustment of Status

For employment-based and family-sponsored preference categories, the U.S. Citizenship and Immigration Services (USCIS) has confirmed it will continue to use the Dates for Filing chart to determine filing eligibility for adjustment of status to permanent residence in the month of December.

Highlights of the December 2024 Visa Bulletin

At a Glance

What can we expect to see in the month of December?

Employment-Based Categories

  • The Final Action Date for India EB-2 will advance by two weeks to August 1, 2012
  • The Final Action Date for India EB-3 will advance by one week to November 8, 2012
  • All other employment-based Final Action Dates and Dates for Filing will remain the same in December as the previous month

Family-Sponsored Categories

  • All family-sponsored Final Action Dates and Dates for Filing will remain the same in December as the previous month

For more details, please see our analysis of the December 2024 Visa bulletin below.

Employment-Based Categories

FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

According to the Department of State’s December 2024 Visa Bulletin, the following Final Action cutoff dates will apply for employment-based categories in the month of December.

  • No change from previous month, except for EB-2 India and EB-3 India

EB-1 Aliens of extraordinary ability, Outstanding Professors and Researchers, and Certain Multinational Managers or Executives

  • EB-1 India will remain at February 1, 2022
  • EB-1 China will remain at November 8, 2022
  • EB-1 All other countries will remain current

EB-2 Members of the Professions and Aliens of Exceptional Ability

  • EB-2 India will advance by two weeks to August 1, 2012
  • EB-2 China will remain at March 22, 2020
  • EB-2 All other countries will remain at March 15, 2023

EB-3 Professionals and Skilled Workers

  • EB-3 India will advance by one week to November 8, 2012
  • EB-3 China will remain at April 1, 2020
  • EB-3 All other countries will remain at November 15, 2022

EB-3 Other Workers

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ai-generated-8570989_1280On October 11, 2024, the U.S. Citizenship and Immigration Services (USCIS) released updated guidance for requests to expedite travel-related documents and expedite requests relating to government interests. The guidance is effective immediately.

Who may file an expedite request?

Individuals who are located inside the United States may request that USCIS expedite the adjudication of their application, petition, request, appeal, or motion. USCIS considers expedite requests on a case-by-case basis and has the discretionary authority to approve or deny an expedite request.

The grounds that may be considered to file an expedite request include, but are not limited to, the following:

  1. Severe financial loss to a company or person

The updated guidance states that those filing an expedite request based on severe financial loss to a company or person must provide corroborating documentation supporting their request.

Where a company is involved, such evidence may include documentation proving that the company is at risk of failing, losing a critical contract, or required to lay off other employees.

For example, a medical office may suffer severe financial loss if a gap in a doctor’s employment authorization would require the medical practice to lay off its medical assistants.

Where an individual is applying for an expedite based on severe financial loss, evidence of a layoff or termination may be sufficient to establish financial loss.

For example, if an individual is unable to travel for work and this would result in job loss, an expedite might be necessary.

USCIS has said that “an individual’s need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment.”

Additionally, severe financial loss can be established if the failure to expedite would result in a loss of critical public benefits or services.

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usa-1327105_1280The U.S. presidential election is set to be held in just fifteen days and the stakes couldn’t be higher for immigrants at the mercy of our broken immigration system.

In this blog post, we discuss where the presidential candidates Kamala Harris and Donald Trump stand on key issues relating to immigration.

What would immigration look like under the Harris administration?

Vice President Kamala Harris is expected to continue many of the immigration policies proposed under President Biden. Among them, illegal immigration continues to be a hot button issue.

Illegal Immigration

Harris plans to tackle the border crisis by pushing for bipartisan legislation that would provide additional funding to hire thousands of new border patrol agents to secure our southern border.

In keeping with Biden’s proposals, Kamala also supports closing the border once border crossings have reached an average of more than 5,000 migrants per day over a week period. She has also said she will throw her support behind Biden’s policies barring asylum applications from individuals crossing the border illegally.

Since becoming Vice President, she has become tougher on illegal immigration telling CNN, “We have laws that have to be followed and enforced that address and deal with people who cross our border illegally. And there should be consequences.”

Concerning pathways to permanent residence, she supports “an earned pathway to citizenship” for undocumented immigrants. However, no details have been provided by her campaign regarding necessary criteria to become legalized.

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november-5650854_1280-1Today, the U.S. Department of State’s Bureau of Consular Affairs published the November Visa Bulletin.

In this blog post, we breakdown the movement of the employment-based and family-sponsored categories in the coming month.

USCIS Adjustment of Status

For employment-based and family-sponsored preference categories, the U.S. Citizenship and Immigration Services (USCIS) has confirmed it will continue to use the Dates for Filing chart to determine filing eligibility for adjustment of status to permanent residence in the month of November.

Highlights of the November  2024 Visa Bulletin

At a Glance

What can we expect to see in the month of November?

Employment-Based Categories

  • All employment-based Final Action Dates and Dates for Filing will remain the same in November when compared to the October Visa Bulletin

Family-Sponsored Categories

Final Action

  • F1 Mexico will advance by 1 year and 10 months to November 22, 2004
  • F2A Mexico will advance by 1.2 months to April 15, 2021
  • F2A All other countries will advance by 1.3 months to January 1, 2022
  • F2B Mexico will advance by 5.5 months to July 1, 2005
  • F3 Mexico will advance by 2 months to October 22, 2000
  • F3 Except for the Philippines All other countries will advance by 2 weeks to April 15, 2010
  • F4 Mexico will advance by 1 week to March 1, 2001
  • F4 India will advance by 1 week to March 8, 2006

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learn-6874566_1280Today the U.S. Department of State’s Bureau of Consular Affairs published the October Visa Bulletin. In this blog post, we breakdown the movement of the employment-based and family-sponsored categories in the coming month.

USCIS Adjustment of Status

For employment-based preference categories, the U.S. Citizenship and Immigration Services (USCIS) has confirmed it will use the Dates for Filing chart to determine filing eligibility for adjustment of status to permanent residence in the month of October.

For family-sponsored preference categories, USCIS will continue to use the Dates for Filing chart to determine filing eligibility for adjustment of status to permanent residence in the month of October.

Highlights of the October 2024 Visa Bulletin

At a Glance

What can we expect to see in the month of October?

Employment-Based Categories

  • The Final Action date for China EB-3 Professionals and Skilled Workers will retrogress by five months, to April 1, 2020. The Date for Filing will retrogress by almost 8 months, to November 15, 2020.
  • The Final Action date for EB-3 Professionals and Skilled Workers Worldwide will advance by almost two years, to November 15, 2022. The Date for Filing will advance by one month, to March 1, 2023.
  • The Final Action date for China EB-5 Unreserved will advance by seven months, to July 15, 2016. The Date for Filing will retrogress by three months, to October 1, 2016.
  • The India EB-5 Unreserved Final Action date will advance by more than one year, to January 1, 2022. The Date for Filing will remain at April 1, 2022.

Family-Sponsored Categories

Final Action

  • F1 Mexico will advance by 7.8 months to January 1, 2003
  • F2A Mexico will advance by 1.1 months to March 8, 2021
  • F2A All other countries will advance by 1 week to November 22, 2021
  • F2B Mexico will advance by 6 months to January 15, 2005
  • F3 Mexico will advance by 5.7 months to August 22, 2000
  • F4 Mexico will advance by 2 weeks to February 22, 2001
  • F4 India will advance by 1.2 months to March 1, 2006

Dates for Filing

  • F1 Mexico will advance by 6 months to October 1, 2005
  • F2B Mexico will advance by 3 months to August 1, 2005
  • F3 Philippines will advance by 6 months to May 8, 2004
  • F3 All other countries will advance by 5.9 months to July 1, 2011
  • F4 Philippines will advance by 4 months to August 1, 2006

Now let’s dive into our analysis of the October 2024 Visa bulletin. 

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