The Schedule A list of occupations that do not require the employer to conduct a labor market test (a PERM labor certification) as part of a green card application process has not been updated in at least 20 years. Almost a year ago, in December 2023, the Department of Labor (DOL) issued a Request for Information asking for public comment on how to possibly expand the Schedule A list. More than 1,000 comments were submitted by the close of the comment period on May 13, 2024. To date, there still has been no response from the DOL.

The government has already concluded that there are insufficient numbers of qualified U.S. workers available to fill openings in the Schedule A occupations, which have until now been limited to physical therapists, professional nurses, and immigrants of exceptional ability in the sciences or arts. This list is clearly outdated given current labor shortages, especially in STEM fields. The STEM employment gap is growing, particularly in technology and engineering. Indeed, the top 20 occupations where companies have been sponsoring foreign nationals for green cards through the typical long and complex PERM process include software developers, engineers, computer systems analysts, and statisticians.

While new Schedule A occupations could be suggested to the DOL, the agency’s call for input was mostly focused on methodology. For instance:

  • What sources of data should be used to establish unmet need?
  • How can one determine the severity of shortages in various fields?

Many employers are anxiously awaiting the DOL’s response to comments. The U.S. Chamber of Commerce has particularly noted:

  • The importance of updating the Schedule A to reflect current economic conditions;
  • The need for periodical updating of the list; and
  • The importance of updating the list to help businesses, the economy, and American workers.

To cut down on the current and expected labor shortages in STEM occupations, employers can consider geographic location, training, and developing a talent pipeline. Another, faster method to bridge the labor gap would be through employment of individuals from countries that are producing more workers with the necessary skills. Being able to bring those workers to the United States and sponsor them for green cards is particularly important for attracting and maintaining those workers.

Expanding the Schedule A list would be an efficient way to get this done while still focusing only on occupations where there clearly are not enough U.S. workers available to fill those jobs.

Jackson Lewis attorneys will continue to monitor the situation and report any response from the DOL as soon as it occurs.

Qatar will join the Visa Waiver Program (VWP). It will be the 42nd member of the VWP and the first Gulf country to qualify. The VWP allows citizens or nationals of participating countries to travel to the United States for tourism or business purposes for up to 90 days without obtaining a visa.

No later than Dec. 1, 2024, the Electronic System for Travel Authorization (ESTA) online application and mobile app will be updated to allow citizens and nationals of Qatar to apply to travel to the United States for tourism or business purposes on the VWP for up to 90 days. B-1/B-2 visas will continue to be an option, especially useful for individuals who will need to remain in the United States as a temporary visitor for more than 90 days.

U.S. citizens already are eligible to travel to Qatar visa-free. Beginning Oct. 1, 2024, they will be able to stay in Qatar for up to 90 days (up from the previous 30-day limit), as long as they have a passport valid for at least three months from arrival and a confirmed hotel booking at the time of arrival.

Before qualifying for the VWP, countries must:

  • Issue secure travel documents
  • Extend visa-free travel privileges to all U.S. citizens regardless of national origin, religion, or ethnicity;
  • Work closely with United States counterterrorism and enforcement authorities; and
  • For initial designation, have a nonimmigrant visa refusal rate below 3%.

These requirements deepen strategic partnerships, increase security and information sharing, and enhance the flow of commerce.

In announcing Qatar’s designation for the VWP, Secretary of Homeland Security Alejandro N. Mayorkas and Secretary of State Antony J. Blinken commended Qatar for all the efforts it put forth “to meet all of the program requirements, including entering into partnerships with the U.S. to share information on terrorism and serious crimes.”

Please contact a Jackson Lewis attorney with any questions on international travel, including on the VWP.

As of September 10, 2024, USCIS will automatically extend the validity of Permanent Resident Cards (or “Green Cards”), for which a Form I-90, Application to Renew or Replace Permanent Resident Cards has been submitted, for 36 months.  The previous automatic extension was for 24 months. 

Although Permanent Resident status does not need to be renewed, the physical Green Card itself needs to be renewed for practical reasons. For most people, the card expires after 10 years. The card is essential for employment authorization verification and travel.

Currently, USCIS is very backlogged. It is taking more than two years to process I-90 applications and applications for extension cannot be filed more than six months before the card’s expiration date. Until now, USCIS had automatically extended Green Cards for 24 months. That time frame is no longer enough. The additional time will not only help applicants, but it also removes some of the stress on USCIS caused by the backlog.

USCIS has updated the language on the I-90 receipts with the 36-month extension and is issuing the updated receipts for newly filed forms and to those with pending I-90 applications. The expired Green Card, along with the new receipt, can be used for employment authorization or travel.

Make sure you have both documents when you travel (and for employment authorization verification). Keep in mind that some countries may not find the receipt notice suitable documentation for boarding an aircraft. If this is a concern, request an appointment at a USCIS Field Office by contacting the USCIS Contact Center to receive an ADIT (Alien Documentation, Identification and Telecommunications) stamp in your passport. An ADIT stamp will be necessary if you have lost your Green Card and are waiting for a replacement.

If you have questions about Green Card renewals or other immigration issues, please reach out to your Jackson Lewis attorney.

In recent years, the landscape for high-skilled immigration to the United States has seen significant changes, particularly with the rise in approvals for O-1A visas and National Interest Waivers (NIW). This rise follows the Biden Administration’s 2022 favorable guidance aimed at welcoming high-skilled science, technology, engineering, and mathematics (STEM) talent and reversing the previous administration’s more restrictive stance.

O-1A Visas: Path for Extraordinary Talent

The O-1A visa category is designed for individuals with extraordinary abilities in fields such as science, education, business, or athletics. Unlike the H-1B visa, there is no annual limit on O-1A visas, making the O-1A visa a more accessible option for eligible individuals than the H-1B lottery. The Biden Administration’s January 2022 guidance clarified the eligibility criteria for O-1A visas, particularly for those in STEM fields. It also provided examples of evidence that could satisfy the O-1A criteria and emphasized the technical fields.

Since the new guidance, there has been an increase in O-1A visa applications and approvals. From FY 2021 to FY 2022, applications rose from 8,010 to 9,720 and the approval rate increased from 91% to 94%. This upward trend continued into FY 2023, with applications reaching 10,010 and a slightly lower approval rate of 92%.

National Interest Waivers: Streamlining Green Card Process

National Interest Waivers allow individuals to bypass the labor certification process when applying for an employment-based green card. This waiver is granted if the individual’s work is deemed to have substantial merit and national importance. The January 2022 guidance expanded the eligibility for NIWs, particularly for those in STEM fields.

The impact of this guidance is also evident in the data. From FY 2021 to FY 2022, NIW requests increased from 11,210 to 21,230 and the approval rate rose from 86% to 90%. From FY 2022 to FY 2023, requests surged to 39,840 and the approval rate dropped to 80%.

The Biden Administration’s immigration guidance has impacted the approval rates for O-1A visas and NIWs, making it easier for high-skilled professionals to contribute to the U.S. economy. Both visas offer foreign nationals a path to long-term tenure in the United States without having to rely on the H-1B lottery. In recent months, USCIS has begun issuing more Requests for Evidence on these two types of visa applications.  As the landscape continues to evolve, it will be crucial for applicants and employers to stay informed about the latest developments.

Jackson Lewis attorneys are available to assist in strategizing and filing petitions for highly skilled individuals.

Customs and Border Protection (CBP) is an enforcement agency that does much more than deal with immigration. This summer, CBP made the largest fentanyl seizure in its history – approximately 4 million blue fentanyl pills weighing more than 1,000 pounds.

The fentanyl was found at the Port of Lukeville in Arizona, when CBP stopped a 20-year-old U.S. citizen driving a pick-up truck hauling a sport recreational vehicle on a utility trailer. During a thorough inspection, CBP officers found irregularities throughout the trailer’s frame. With the help of a CBP canine team, CBP officers found fentanyl in the frame of the trailer.

Several days later, officers at the same port seized about 270 pounds of methamphetamine. In that case, a 45-year-old Mexican citizen was driving a pick-up truck towing a utility trailer.

These seizures were part of a counter-fentanyl operation focusing on intelligence collection. The purpose is to disrupt drug and chemical supplies, collect and share intelligence on trafficking networks (including routes used), and uncover operational logistics.

Drug enforcement is not the only type of seizure conducted by CBP. The agency is also involved in enforcing, among other things, environmental protections. Since January 2022, the Environmental Protection Agency (EPA) has prohibited the importation of freon, except on an application-specific allowance issued by the EPA. Freon is a greenhouse gas believed to contribute to global warming. Importation of freon canisters from Mexico is restricted, and failure to declare freon canisters can result in fines and vehicle seizures. During this very hot summer, CBP officers have warned travelers not to bring illegal freon over the border.

The Transportation Security Administration (TSA) has proposed delaying enforcement of the REAL ID requirement for passengers of domestic airlines to give travelers two more years to update to REAL ID-compliant identifications. The proposal is open for comments until Oct. 15, 2024.

The REAL ID Act was passed by Congress based on the 9/11 Commission’s recommendations. Full enforcement for domestic air travelers was scheduled to go into effect in May 2025. That date likely will be pushed to 2027.

Under REAL ID security regulations, all passengers 18 years and over on domestic airlines would need a REAL ID-compliant identification to board. Although various documents are REAL ID-compliant, the key document became state-issued REAL ID-compliant driver’s licenses. Approximately 53 percent of the U.S. population had REAL ID-compliant identifications in 2023 when the deadline was pushed to May 2025. As of now, only 56 percent of the population have REAL ID-compliant driver’s licenses. The 2027 deadline likely will be pushed another two years (requiring another rulemaking process), but TSA may take a phased approach.

It appears that many people keep postponing getting REAL ID-compliant licenses because their experience tells them that TSA will keep extending the deadline. To avoid mayhem at airports that could result from full enforcement, TSA likely will propose gradual enforcement starting in May 2025. In the first phase, individuals with non-compliant IDs would be given warnings. Full enforcement would go into effect in 2027.

Other documents that pass the REAL ID test include U.S. passports, DHS trusted traveler cards, U.S. permanent residence cards, federally recognized tribal-issued photo IDs, USCIS Employment Authorization Cards, and certain Canadian documents.

Jackson Lewis attorneys will follow these developments and provide updates as they become available.

The Department of Labor (DOL) announced its H-2A Transition Plan for updating its Foreign Labor Application Gateway (FLAG) system based on the preliminary injunction (known as the Kansas Order) issued by the U.S. District Court for the District of Southern Georgia. That order prevents the DOL from enforcing its new H-2A Farmworker Visa Rule against the plaintiffs in the case (two entities and 17 states) during the pendency of the litigation. The Transition Plan will be in effect as of Sept. 12, 2024.

All H-2A cases submitted on FLAG prior to 7:00 p.m. ET on Sept. 11, 2024, will be processed under the “old” regulations in effect on June 27, 2024. At 12:00 a.m. ET on Sept. 12, FLAG reopens for submissions. Cases not subject to the Kansas Order will be processed based on the new regulations in effect as of June 28, 2024. Cases subject to the Kansas Order will continue to be processed based on the old regulations. Cases initiated but not submitted by 7:00 p.m. on Sept. 11 will be deleted, but waivers of the regulatory time period will be granted for those cases.

How Will This Work?

  • Beginning on Sept. 12, the FLAG system will require the employer or employer’s authorized attorney or agent to identify whether the work to be performed will be located in one or more of the states or entities subject to the Kansas Order. If the answer is “yes,” the applicant will be directed to the job order using Form ETA-790/790A in effect as of June 27, 2024. If the answer is “no,” the applicant will be directed to the form in effect as of June 28, 2024.
  • To ensure compliance with the Kansas Order, employers should submit separate job orders and Applications for Temporary Employment Certification for work performed in states subject to the Order and work performed in states not subject to the Order.

Jackson Lewis attorneys are available to answer questions about the new process and to help prepare and file H-2A visa during the transition period.

USCIS is processing naturalization cases faster than they have in years, and the agency is managing to cut down on its naturalization backlog. Given the current average timing, eligible green card holders who applied early in the summer 2024 might be sworn in in time to vote in the upcoming November elections.

Of course, field offices vary in processing times, but USCIS stated it was effectively eliminating the net backlog of naturalization applications and reducing the median processing time from 10.5 months to as little as five months. This is a 50 percent drop in processing time since 2022, achieving the agency’s longstanding goal and significantly reducing waiting times for most individuals seeking U.S. citizenship. Naturalization has always been a target of note in the agency’s backlog reduction effort. This was achieved by increasing capacity, improving technology, and expanding staffing.   

Naturalization cases often increase ahead of elections. Voting is not the only personal benefit of citizenship. Immigrants who become U.S. citizens may also serve on juries, travel on a U.S. passport, bring family members to the U.S. more easily, apply for certain federal jobs, run for federal office, become eligible for certain federal grants, scholarships and benefits, and, importantly, have the right to remain in the U.S. that cannot be taken away. Beyond that, findings show that naturalized citizens have higher employment rates and earn between 50 and 70 percent more than noncitizens. Increasing the number of citizens also helps the economy in general. It leads to an increase in tax revenue and greater home ownership.

When President Joe Biden came into office, he issued an executive order to reduce naturalization barriers to strengthen the integration of new Americans. About 100,300 naturalization petitions were denied in FY 2023, a 10 percent drop from the 111,600 petitions denied in FY 2022. The Biden Administration also made the naturalization application shorter and, while it raised the naturalization fee, a number of discounts are available.

Eligibility requirements for naturalization include age, continuous residence, physical presence, jurisdiction, knowledge of U.S. history, civics, and English, and good moral character.

Jackson Lewis attorneys are available to assist you in determining whether you meet the requirements for citizenship and can assist in preparing and filing naturalization applications.

The U.S. Embassy in Havana has expanded visa services to include some temporary non-immigrant visas. Cuban nationals with the following approved petitions will be able to schedule visa interviews at the Embassy:

  1. H – Temporary workers or trainees
  2. J – Exchange visitors
  3. L – Intracompany transferees
  4. O – Workers with extraordinary ability or achievement
  5. P – Athletes, artists, and entertainers
  6. Q – International cultural exchange participants
  7. R – Members of a religious denomination performing religious work

This expansion does not include B-1 or B-2 visas for business or tourism travel. For those, Cubans will still have to travel to embassies or consulates in other countries.

The history of the Havana Embassy has been marked by periods of closure and reopening. An embassy first opened in Havana in 1923, but it closed in 1961 when the United States severed diplomatic relations. In 1977, it reopened as the U.S. Interests Section in Havana. In 2015, the Obama Administration restored diplomatic relations, but that was reversed by the Trump Administration in 2017 due to unexplained health incidents among the diplomatic staff (often referred to as “sonic attacks” or Havana Syndrome). Cubans were forced to undertake sometimes arduous or dangerous (and expensive) travel to other consulates in Colombia or Guyana – and many fled to Central or South America to then journey to the U.S.-Mexico border. U.S. Customs and Border Protection reported 535,037 encounters with Cubans at the border from 2021 through 2024.

In 2022, under the Biden Administration, some consular services were restored and, by 2023, the Embassy resumed immigrant visa processing for immediate family members, the family preference categories, diversity visas, and K (fiancé) visas.

Now, with the resumption of non-immigrant visa processing, most Cubans will be able to avoid applying as third-country nationals at consulates outside of Cuba. An Embassy official reported the Embassy has doubled its number of employees since 2022, but it still would need more staff to reinstate all visa services.

To schedule an interview for H, L, O, P, Q, or R visas, the applicant must submit evidence of their approved petition (Form I-797 Notice of Action) from USCIS. To apply for a J visa, applicants must submit their Form DS-2019, Certificate of Eligibility for Exchange Visitor Status. Applicants must also submit the required application, fees, a valid passport, and a current photograph.

For more information on the process, please visit the Cuban Embassy’s website.

Jackson Lewis attorneys are available to assist in filing the necessary petitions with USCIS and advising regarding consular applications.

Illinois Governor JB Pritzker has signed an amendment to the Illinois Right to Privacy in the Workplace Act that provides additional employee protections regarding employers’ use of E-Verify. The amendment’s effective date is Jan. 1, 2025, and applies to both private and public employers.

Illinois already had specific rules to ensure that E-Verify is used correctly and fairly. Illinois already:

  • Urged employers to consult the Illinois Department of Labor (IDOL) website for current information regarding the accuracy of the program
  • Encouraged employers to review and understand their legal responsibilities under E-Verify
  • Required all those who administer E-Verify to complete Computer Based Training
  • Required employers to post an E-Verify poster in the workplace in both English and Spanish
  • Required notification to an employee in writing of a receipt of a Tentative Nonconfirmation Notice (TNC) and their rights to contest the TNC
  • Made it clear that an employee could not be terminated prior to receiving a final nonconfirmation notice from the Social Security Administration or the DHS
  • Admonished employers to safeguard the information in the system

The amendment continues along the same lines with more specific requirements regarding rights and protections for workers. These include specific notice posting requirements and specific timing on notices to employees about TNCs or upcoming I-9 inspections. Additionally, under the amendment, employees may have representation in meetings regarding TNCs.

The purpose of the amendment may be to ensure employers in Illinois do not exceed federal E-Verify regulations and requirements and treat all employees respectfully by providing sufficient notice of upcoming investigations or TNCs so the employees can plan accordingly.  

Some commentators have noted, however, that the new law could be read to prohibit or at least discourage employers from using E-Verify unless required to use it by federal law.  

That interpretation is concerning. The amendment adds penalties for violations of the notice provisions that include actual damages plus costs and reasonable attorney’s fees for willful and knowing violations. Although IDOL usually attempts to resolve violations through mediation, IDOL and individual complainants can commence actions in court.

We expect IDOL to issue new guidance before the effective date.

Jackson Lewis attorneys are available to advise employers in Illinois regarding preparing for that effective date.