Visa Lawyer Blog

Articles Posted in U.S. Employers

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people-4009327_1280On September 24, 2025, the Department of Homeland Security (DHS) issued a proposed rule that would change the current selection process for selecting H-1B visa petitions subject to the annual numerical limits established by the Immigration and Nationality Act.

Under the proposed rule, the current random lottery system would be replaced with a wage-based selection process that prioritizes the selection of H-1B workers offered higher salaries by sponsoring employers.

The goal is to better align the H-1B program with U.S. labor market needs by increasing the chances of selection for higher-paid, and presumably higher-skilled, foreign workers. This change aims to reduce the potential for abuse in the system, discourage mass low-wage registrations, and ensure that the most economically valuable positions are filled through the H-1B program.

What may change

Currently, the U.S. government selects H-1B visa petitions through a randomized lottery system due to the annual numerical cap on available visas. Employers first submit electronic registrations for each prospective H-1B worker during a designated registration period, typically held in March. Because the demand for H-1B visas consistently exceeds the supply, the U.S. Citizenship and Immigration Services (USCIS) conducts a lottery to determine which petitions can proceed with applying for H-1B visas.

There are two separate caps under the H-1B program: the regular cap of 65,000 visas and an additional 20,000 visas reserved for individuals who hold advanced degrees from U.S. institutions (commonly referred to as the master’s cap). All registered beneficiaries, including those with U.S. advanced degrees, are first entered into the regular cap lottery. After 65,000 are selected, those with U.S. master’s degrees who were not chosen in the initial round are entered into a second lottery for one of the 20,000 advanced degree slots.

This current system does not prioritize applicants based on wage levels, qualifications, or skills. Selection is purely random as long as the minimum eligibility requirements are met.

However, the Department of Homeland Security (DHS) is proposing changes that would shift the selection process to favor higher-paid workers.

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pumpkin-5517221_1280We are pleased to report that today the U.S. Department of State’s Bureau of Consular Affairs published the October 2025 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 adjustment of status filings to permanent residence in the month of October, USCIS will be using the Dates for Filing Chart for the employment-based and family-sponsored categories.

Highlights of the October 2025 Visa Bulletin

At a Glance

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

Employment-Based Categories

Final Action Advancements

  • At the start of the new fiscal year in October, the Final Action Dates for several EB-1, EB-2 and EB-3 countries will move forward, but none will advance by more than three and a half months, except for two notable exceptions:
    • EB-3 Other Workers China which will advance by 7 months and
    • The Final Action Date for EB-5 India will advance by almost 14 months

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calendar-1559935_1280We are pleased to report that today the U.S. Department of State’s Bureau of Consular Affairs published the August 2025 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 continue to use the Final Action Dates chart to determine filing eligibility for adjustment of status to permanent residence in the month of August.

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

Please click here for more information.

Highlights of the August 2025 Visa Bulletin

At a Glance

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

Employment-Based Categories

Final Action Advancements

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

  • EB-2 Worldwide, Mexico, Philippines retrogressed by 1.4 months to September 1, 2023

EB-3 Professionals and Skilled Workers and Other Workers

  • EB-3 India will advance by 1 month to May 22, 2013

EB-5 Unreserved Categories (C5, T5, I5, and R5)

  • India will advance by 6.5 months to November 15, 2019
  • China will advance by 22.5 months to December 08, 2015

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interview-4783433_1280On February 18, 2025, the U.S. Department of State (DOS) announced new changes to the Visa Interview Waiver program, further adding to the unpredictability of the Trump administration.

Among these changes, the State Department has limited the categories of non-immigrants who are eligible to receive waivers of the in-person interview requirement.

Moving forward only the following individuals may qualify:

  • Applicants classifiable under the visa symbols A-1, A-2, C-3 (except attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1 through NATO-6, or TECRO E-1;
  • Applicants for diplomatic- or official-type visas; and
  • Applicants who previously held a visa in the same category that expired less than 12 months prior to the new application

Additionally, those seeking interview waivers must also meet the following requirements:

  • apply in their country of nationality or residence
  • have never been refused a visa (unless such refusal was overcome or waived); and
  • have no apparent or potential ineligibility.

Previously, non-immigrant visa applicants applying for visa renewals in the same visa category could seek an interview waiver if their visa was expiring within 48 months. The Trump administration has now cut this time to just 12 months.

This means that renewal applicants with visas that expired past the 12-month window will be required to attend in-person interviews at a U.S. Consulate or Embassy.

These visa restrictions along with Trump’s recent executive order requesting Consulates to fire visa officers and local employees, means that wait times for visa appointments will drastically increase, especially in countries already facing severe backlogs.

The State Department has said that visa renewal applicants who qualify for an interview waiver based on the previously stated guidelines may still be required to attend an in-person interview by the Consulate. This is because the interview waiver process is discretionary. It is never guaranteed.

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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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immigration-8579109_1280The United States Citizenship and Immigration Services (USCIS) recently announced some important updates for green card applicants, and those renewing existing employment authorization documents also known as EADs.

I-485 New Green Card Application Form

On December 10, 2024, USCIS published a new edition of Form I-485, Application to Register Permanent Resident or Adjust Status. The new form includes updated questions and important instructions for green card applicants.

Beginning February 10, 2025, USCIS will only accept the 10/24/24 edition of Form I-485. The agency will reject any older editions submitted on or after that date.

The new edition of Form I-485 features the following major changes:

  • Requires applicants who need to submit a Form I-693, Report of Immigration Medical Examination and Vaccination Record, or a partial Form I-693 (such as a vaccination record), to submit the Form I-693 or partial Form I-693 with their Form I-485.  If the applicant does not submit the Form I-693 with Form I-485 when it is required, the Form I-485 may be rejected
  • Enables applicants who are exempt from the Form I-864, Affidavit of Support Under Section 213A of the INA, requirement to request the exemption on Form I-485 rather than submitting a separate Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support. Form I-864W has been discontinued.
  • Contains clarifications for questions about the public charge ground of inadmissibility. The questions will now require an applicant to identify their immigrant category so that USCIS can determine whether or not they are exempt from this ground of inadmissibility and adjudicate the application accordingly
  • Streamlines the collection of information and clarifies instructions and applicant requirements.

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animal-2345418_1280

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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butler-159811_1280
On September 19th the U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough petitions to reach the mandatory numerical cap on new H-2B visas for nonagricultural workers for the first half of fiscal year 2025.

As a result, USCIS will reject any new cap-subject H-2B petitions received after September 18th that request an employment start date before April 1, 2025.

USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap, including:

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