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Takeaways

  • DHS rule cleared by the White House and would replace the long-standing “duration of status” (D/S) framework with fixed admission periods.
  • Extension filings and increased government oversight may create additional administrative burdens and uncertainty for visa holders.
  • The proposal has not been finalized, and the current D/S system remains in effect.

A proposed Department of Homeland Security (DHS) rule that recently cleared White House review could fundamentally change how international students maintain lawful status in the United States. If finalized, the rule (“Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media”) would eliminate the long-standing “duration of status” (D/S) framework and replace it with fixed periods of admission.

Under the proposal, most F-1 students and J-1 exchange visitors would be admitted for no more than four years (or the length of their academic program, if shorter). Individuals needing additional time to complete a degree, change academic levels, or pursue post-completion training would be required to file an extension of stay application with USCIS.

Practical implications include:

  • Greater uncertainty for employers that rely on international graduates, particularly in STEM fields, if students encounter delays or complications obtaining status extensions.
  • Additional compliance obligations for educational institutions, as authority over status extensions would shift from schools and to federal immigration authorities.
  • Increased immigration planning needs for students, employers, and universities to avoid potential gaps in lawful status.

DHS has stated that the proposed changes are intended to strengthen oversight, improve tracking of nonimmigrants, reduce overstays, and enhance program integrity. At the same time, universities, employers, and immigration advocates have expressed concerns that mandatory extension filings could increase processing delays, disrupt degree completion — particularly for doctoral and research programs exceeding four years — and make U.S. educational institutions less attractive to international students.

Although the White House Office of Management and Budget has completed its review of the proposed rule, it has not yet been published in the Federal Register and could be revised or challenged before taking effect. Until then, the current duration of status framework remains in place.

Jackson Lewis attorneys will continue monitoring developments as the rulemaking process moves forward and are available to answer your questions.

On July 7, 2025, DHS Secretary Kristi Noem announced that TPS designations for Nicaragua and Honduras will not be extended. TPS designations for both countries expired on July 5, 2025.

The 60-day transition period will start on July 8, 2025. Work authorization documents based upon TPS designation for Nicaragua and Honduras will remain valid during the transition period.

The Secretary determined that country conditions in Nicaragua and Honduras have improved to the point where Nicaraguan and Honduran citizens can return home in safety.

Lawsuits were filed in response to Secretary Noem’s decisions to end TPS designations for several countries (Haiti, Venezuela). Similar legal challenges may be made to the decision to terminate TPS designations for Nicaragua and Honduras.

Jackson Lewis attorneys will continue to monitor the situation and provide updates.

A federal judge has blocked the Trump Administration from ending TPS for Haiti months earlier than initially planned under the 2024 government extension.

On June 27, 2025, Department of Homeland Security (DHS) Secretary Kristi Noem announced that she will not renew Haiti’s TPS designation. The TPS designation will expire on Aug. 3, 2025, and the termination, including work authorization documents, will be effective on Sept. 2, 2025, according to Noem.

DHS confirmed in the Federal Register Notice that Haitian TPS continue to be employment-authorized during the transition period and automatically extended the validity of certain EADs previously issued under the TPS designation of Haiti through Sept. 2, 2025.

The secretary determined that country conditions have improved to the point where Haitians can return to Haiti in safety. Based on her review, in consultation with appropriate U.S. government agencies, the secretary determined that termination of TPS for Haiti is required because it is contrary to the national interest to permit Haitian nationals to remain temporarily in the United States.

On July 1, 2025, U.S. District Judge Brian Cogan blocked the government’s attempt to end the TPS designation for Haiti on Sept. 2, 2025. Judge Cogan wrote, “Secretary Noem does not have statutory or inherent authority to partially vacate a country’s TPS designation.” The ruling concluded that DHS exceeded its authority by curtailing the TPS designation from the initial 18 months to 12 months. Therefore, the TPS designation should return to its initial February 2026 end date, the court ruled.

The government will likely appeal the decision.

Jackson Lewis attorneys will continue to monitor the situation and provide updates.

Skilled immigration is making headlines with renewed focus on the H-1B nonimmigrant visa program, the most popular employment-based visa for foreign professional workers. View our full legal update and insights here.

Green card holders who seek naturalization are required to pass a civics test and demonstrate English proficiency. The test used for this was developed in 2008, and the Biden Administration has announced it is updating the test. The changes are going to be tested in the coming months, and USCIS plans to implement them in late-2024.

While some immigrant advocates believe that the changes can be a hurdle to immigrants, others contend the test should be standardized.

Currently:

  • Applicants’ spoken English is tested during the naturalization interview by asking them questions about themselves from the information that applicants provided in their naturalization application, such as current and prior residential addresses and employment history. The new process would instead require applicants to describe photographs of daily activities, something that may not lend itself to practice as the photos could vary, although they would be standard for all applicants.
  • Applicants are asked to answer short-answer civics questions orally based on a list of 100 possible questions. In the new test, applicants would have to answer a multi-choice civics test. This type of test may require more English and test-taking proficiency.

Advocacy groups are already making changes in their test preparation programs to help immigrants prepare for the new tests.

After a permanent resident passes the interview and USCIS approves their N-400 Application for Naturalization, the applicant must complete a naturalization ceremony. In an effort to promote voting and expand access to voter registration for new citizens, the Biden Administration has issued policy guidance making it easier for new citizens to register to vote at the conclusion of their naturalization ceremony. Increased voter-registration access at naturalization ceremonies is being implemented immediately as follows:

  • USCIS will provide access to voter registration and information on voting at all administrative naturalization ceremonies.
  • USCIS offices will request that election officials from state or local government election offices attend ceremonies to distribute, collect, and review voter registrations.
  • If government election officials are not available, USCIS offices will coordinate with non-partisan, non-governmental organizations to perform the above duties.
  • To the extent feasible, governmental or non-governmental organizations offering on-site voter registration services will be invited to introduce themselves and address the naturalization candidates.

Jackson Lewis attorneys are available to advise individuals about all naturalization requirements, including strategizing on when to file applications to ensure eligibility criteria are met.

The Biden-Harris Administration has taken steps to enhance the ability of U.S. STEM (science, technology, engineering, and math) businesses to hire qualified foreign students and graduates as exchange visitors. Interested STEM businesses could become Host Organizations for J-1 Visa Exchange Visitors.

In a statement released by the White House, STEM talent is identified as “critical to the prosperity, security, and health of the Nation.” The ability of the U.S. to attract global talent in the past, according to the announcement, “has spurred path-breaking innovation” leading to new jobs, new industries, and new opportunities for Americans. American businesses are looking for ways to find more STEM talent.

The Early Career STEM (Science, Technology, Engineering and Math) Research Initiative allows STEM businesses to act as hosts to exchange visitors by proactively reaching out to recruit foreign STEM graduates for various temporary programs, including internships and training. These exchange programs are meant to bring emerging leaders to the United States to make lasting international connections and to transform U.S. operations through international exchange.

STEM employers interested in becoming a J-1 Host Organization can contact BridgeUSA, a program within the Department of State’s Bureau of Educational and Cultural Affairs. BridgeUSA reviews the opportunity and connects the employer/host organization with an appropriate approved J sponsor. The list of sponsors includes exchange visitor groups, universities, and other business groups. The J sponsor recruits and screens candidates for the employer/host. Once the STEM employer/host identifies the best candidate match, the J sponsor issues the necessary documents to the candidate so that the STEM graduate can apply for a J visa at a U.S. consulate abroad. The exchange program can be fully funded by the employer/host organization, or the funding can be hybrid in nature, with the STEM graduate paying some of the funding cost. As with other J programs, some participants in the program will become subject to the two-year home residence requirement.

The Early Career STEM Research Initiative is part of the Biden administration’s plan to encourage STEM graduates to join the U.S. economy. Other initiatives have included adding new degree fields to the STEM list, making STEM students in J-1 status eligible for 36 months of OPT (instead of 18), and broadening eligibility for O visas and National Interest Waivers for those in STEM fields.

Jackson Lewis attorneys are available to assist you in finding ways to use J visa programs to fill temporary needs.

U.S. Citizenship and Immigration Services (USCIS) has announced that it is strongly encouraging applicants for adjustment of status (Form I-485) in the employment-based third preference category, if they are eligible to do so, to transfer the underlying basis of their applications to the first or second employment-based preference categories. This is because there are an “exceptionally high number” of visas available in those categories for the current fiscal year (October 2021 to September 2022) – twice as high as usual. USCIS’ encouraging announcement is in line with the Biden Administration’s mission to eliminate barriers and not let immigrant visas go to waste.

This surplus is the result of approximately 140,000 family-based visas (along with some first and fifth preference employment-based visas) going unused last year and, due to statutory limitations, they cannot be used for those in the third preference employment-based category.

To be eligible to transfer the underlying basis of their Form I-485, applicants must meet the following criteria:

  • Continuously have maintained eligibility for adjustment of status;
  • Have already filed a Form I-485 that is pending based on a different I-140 in a classification that is not current, e.g., EB-3;
  • Be eligible for the first or second preference category; and
  • Have a current priority date current in the new category.

Those who are requesting a transfer of the underlying basis of the I-485 to a previously filed and approved Form I-140 must also file a completed Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under Section 204(j), along with the written transfer request. If the previously filed petition is pending, the Form I-485 Supplement J is not required.

There is a complex web of requirements that must be followed in terms of evidence, and filing locations vary depending on the circumstances of the application. There can also be pitfalls. For instance, the position that will form the basis for the transfer must be the same position the applicant will assume when the adjustment is approved or a position to which the applicant is portable.

Please reach out to your Jackson Lewis attorneys who are available to assist in strategizing, preparing, and filing these transfers, also known as “interfilings.”

For the first time, USCIS has advised people with a pending green card application of its documentary requirements for transfers between employment-based classifications and issued an alert regarding the process.

The “exceptionally high number of employment-based [immigrant] visas available this fiscal year” has prompted USCIS to encourage U.S. employers petitioning for employees to utilize either the first or second employment-based preference categories. This is a big change from one-and-a-half years ago.

In October 2020, the government inverted the availability of immigrant visas, making several hundred thousand, mainly Indian, employees in the U.S. eligible to apply for a green card based on the employment-based third preference category. For this blog, the focus is on the second and third employment-based visa classifications. The second employment-based preference category (EB-2) is for employees with an advanced degree or a bachelor’s degree and at least five years of progressive experience in their profession, or those with “exceptional ability.” The third employment-based preference category (EB-3) is for employees with at least a bachelor’s degree (as well as certain skilled or unskilled workers).

USCIS also strongly encourages people with a pending green card application in the EB-3 category to transfer the underlying basis of their pending green card (adjustment of status) application to the EB-2 category if they are eligible to do so — meaning they have an approved or pending Immigrant Petition for Alien Worker in the EB-2 classification (USCIS Form I-140). This process of transferring the underlying basis of a green card application, also called “interfiling,” has been misunderstood. Although USCIS lays out guidelines for an interfile request in its Policy Manual, the agency has not previously provided specific documentary requirements for transfers between employment-based classifications. Now, USCIS clearly declares that an interfile request must be made in writing and must include USCIS Form I-485 Supplement J.

Form I-485 Supplement J has two uses: one is for “Confirmation of Bona Fide Job Offer,” the other is “Request for Job Portability Under INA Section 204(j).” When an applicant files an I-485 J to change the underlying basis of a green card application or interfile, they are using the I-485 J as a Confirmation of Bona Fide Job Offer. What is the job offered? That is the one in the PERM labor certification that was the basis of the employer’s petition for an immigrant worker, Form I-140.

This means that if someone has changed employers after applying for their green card (and followed regulations regarding portability of the permanent job offer), their new employer cannot file an I-485 J to change the underlying basis to a prior employer’s I-140 petition in EB-2 classification. Interfiling is not an option for this employee, as their new employer did not file their EB-2 petition; a prior employer did. There are other circumstances when interfiling is not an option, and other cases when an I-485 J may be required for a different purpose.

Jackson Lewis attorneys are available to discuss the situation of your employees with pending green card applications and help to determine if interfiling is appropriate and prepare the correct documentation for that request.

 

Approximately 27,000 additional Cap H-1B cases were selected in a second-round lottery for fiscal year 2022. The selected petitions must be filed by November 3, 2021. In the meantime, litigation challenging the validity of the Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions Rule (Modification Rule), for next year’s petitions, are moving forward.

The Modification Rule was published during the previous administration. It prioritizes H-1B Cap selection based on wage level. Instead of the current and historical process of random selection, USCIS would choose cases based on a hierarchy – starting with Level IV wages and working down. The Rule as written will increase the selection rate for Level III and Level IV cases. However, it would all but eliminate the likelihood that petitions with Level I entry-level wages will be selected. Concerns about this and the resulting effects on the economy have been raised since the Rule was first introduced, and business groups, institutions of higher education, and companies have been challenging the Modification Rule in court. Recently, though, a non-profit organization that represents technology workers, and that generally opposes the H-1B program, filed an amicus brief supporting the Modification Rule.

Unlike some other Trump Administration immigration rules, the Modification Rule was not withdrawn by the Biden Administration. Its implementation, however, was delayed due to technical challenges until the end of 2021. This means it could go into effect for next year’s Cap H-1B lottery if it is upheld.

In Chamber of Commerce of the United States et al. v. USCIS et al., opponents to the new rule argue that the proposed changes are unlawful in that the Rule conflicts with the Immigration and Nationality Act; is void because it was implemented by Chad Wolf who was unlawfully serving as Acting Secretary of Homeland Security; and is arbitrary and capricious because DHS failed to respond adequately to comments on the effects of the Rule. They argued that American employers have developed a “reliance interest” in the way the H-1B program historically has operated.  The plaintiffs particularly noted that the Modification Rule “is likely to exclude many of the bright, ambitious, early-career professional who often drive innovations” and that DHS itself has estimated that “zero percent” of wage Level I petitions will be selected.

We will continue to follow the litigations regarding the Modification Rule. If you have questions about strategies to deal with its possible implementation, Jackson Lewis attorneys are available to assist.

 

 

The Department of State (DOS) has provided more details to the Consulates on the national interest exemption under President Donald Trump’s June 22, 2020, executive order.

The “Presidential Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” bars holders of certain visas from entering the U.S. not due to concerns about contagion, but ostensibly as a way to preserve jobs for Americans. The order restricts the entry of certain H-1B, H-2B, L-1, and J-1 nonimmigrants, along with their dependents until the end of 2020.

Unemployment has increased dramatically in the United States, from a low of 3.2% in February 2020, to a high of over 14% two months later. Unemployment has continued to decline in the following months as companies bring back employees to get their businesses moving again. Many businesses have been hampered in their efforts to return to full operations by the inability of critical employees, many with very specialized skills and training who are not citizens of the U.S., to enter the country for work.

Several exceptions were listed in the proclamation, but interpretations as to how to qualify varied. DOS has provided the Consulates details on the national interest exceptions for H and L visas. The details are focused on healthcare and medical research needs (both COVID-19 and non-COVID-19), including whether the applicant was facilitating continued economic recovery and doing essential work in critical infrastructure. Longevity with the employer and whether denial of the visa would cause economic hardship for the company also will be considered.

DOS also has provided a non-exclusive list of examples, leaving open more possibilities. Following are some examples of exceptions for H-1B employees (comparable examples apply to H-2B and L-1 visas):

  • Healthcare professionals working on COVID-19 or in other important medical areas, such as cancer or communicable diseases.
  • Healthcare professionals working in areas that have been adversely affected by COVID-19 – perhaps providing medical services that have had to be curtailed due to COVID-19, such as providing rehabilitation services or other services deemed “non-essential” due to COVID-19.
  • Applicants seeking to resume ongoing employment in the same position, in the same visa classification, with the same employer because having to replace such an individual might cause the company financial hardship.
  • Travel by technical specialists, senior level managers, and others whose travel is necessary to the economic recovery of the U.S. by showing two of five factors:
    • The continuing need for the employee, including a showing that the essential functions cannot be accomplished remotely
    • The employee will provide unique contributions in critical infrastructure sectors: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems
    • The employees’ wage exceeds the prevailing wage by at least 15%
    • The employee has unusual expertise demonstrated by their background
    • Denial of the visa will cause financial hardship to the company, as shown by:
      • Employer will not be able to meet financial or contractual obligations
      • Employer will not be able to continue its business
      • Employer will not be able to return to pre-COVID-19 level of operation

As to J-1 visas, there are exceptions for au pairs for children with special needs or whose parents do COVID-19-related work.

The initial hurdle to convincing a Consulate to grant a waiver is getting an appointment, which may itself require proving national interest.

Jackson Lewis attorneys are available to assist employers navigate this process. We are helping U.S. businesses get back to full operation by evaluating and developing arguments for employees in H, L, and J status who may qualify for an exception to the employment-based visa restrictions, as well as the Schengen and other COVID-19-related travel restrictions.