USCIS announced that it is no longer necessary to provide supporting documentation to change or update a prior gender selection on immigration forms. The intention is to “reduce barriers to travel, employment, services, and benefits by eliminating delays and preventing discrimination and harassment due to inconsistent identity documents.”

USCIS will be changing its forms to include an “X” marker for gender.

The documentation policy change is consistent with state-level self-certification policies for gender marker designations on driver’s licenses and identification cards. Similar policies have been adopted by other federal agencies, such as the Transportation Security Administration.

USCIS has included a table on its website explaining how to update current documents to request a gender change. If the benefit request is pending, individuals will generally have to submit a letter explaining the change requested. If the USCIS-issued document has already been received, the requestor will generally need to submit a new application, a letter explaining the request, and pay the applicable filing fees.

There is one exception: Form N-565, Application for Replacement Naturalization/Citizenship Document, will still require submission of supporting documentation.

Jackson Lewis attorneys are available to advise regarding the new policy and will provide updates as they become available.

On Equal Pay Day, Congresswoman Eleanor Holmes Norton (D-DC) introduced three bills, including a national pay transparency bill, that she believes would help to close the pay gap between men and women.

She chose Equal Pay Day for the introduction of these bills because it marks the additional days women must work to earn what men earned the prior year.

One of the bills, the Salary Transparency Act, amending the Fair Labor Standards Act, would require all U.S. employers to provide the salary range for jobs in all advertisements. The salary range would need to include wages and other forms of compensation the employer anticipates offering the successful candidate for the job opportunity. The act includes civil penalties ranging from $5,000 for a first violation, increased by an additional $1,000 for each subsequent violation, not to exceed $10,000, plus liability to each job applicant for damages and reasonable attorneys’ fees. The bill also includes a private right of action.

This bill comes at a time when more states are adopting their own pay transparency laws, many of which have different requirements. Due to the difficulty of conforming to these various  laws, “some large corporations including Airbnb Inc. and Microsoft Corp. have begun to include pay information in all US job ads, which they’ve said also helps attract and retain employees.” Indeed, some employers, when doing PERM Labor Certification cases for sponsored visa employees, are choosing to comply with the most restrictive state law in their footprint to avoid possible state law violations, while balancing different geographic pay differentials, especially when many jobs can be worked remotely from anywhere within the United States. In that regard, federal legislation may come as a relief for some multi-state employers, particularly if it helps slow the wave of new and varied state requirements, which make compliance more difficult.

As compliance with a patchwork of state laws becomes more and more burdensome, employers will have to decide how risk-averse they are.

Jackson Lewis attorneys are available to assist in strategizing on how to comply with pay transparency laws in the employment and immigration arenas.

The Occupational Safety and Health Administration (OSHA) has been given the authority to issue certifications in support of applications for T and U nonimmigrant visas beginning March 30, 2023.

To assist agencies in combatting human trafficking and other crimes, OSHA will issue these certifications during workplace safety investigations that identify qualifying criminal activities, including trafficking, forced labor, and obstruction of justice.

T visas enable certain victims of severe trafficking to remain in the United States for up to four years if they comply with any reasonable request for assistance from law enforcement to detect, investigate, or prosecute human trafficking. T status protects individuals from retaliation for cooperating with law enforcement and offers individuals employment authorization and a path to permanent residence. T status can also be extended to qualifying family members. Because traffickers can take advantage of undocumented individuals, T visas protect them and, at the same time, help law enforcement agencies to investigate and prosecute trafficking crimes. Although 5,000 visas are available annually, that cap usually is not reached.

U visas are available to victims of a broad range of crimes who have suffered mental or physical abuse and who help law enforcement or government officials in such criminal investigations. Like the T visa, the U visa is designed to strengthen law enforcement and protect undocumented individuals from abuse, exploitation, and retaliation. There are 10,000 U visas available annually but, if the cap is reached, petitioners can be placed on a waiting list and granted deferred action or parole and may apply for work authorization. Also like T visas, U visas are available to qualifying family members, and principals and eligible family members may apply for employment authorization. Permanent residence is also a possibility after three years in U status.

Both T and U visas require evidence to establish compliance with any reasonable request for assistance from law enforcement unless the individual qualifies for an exemption from that requirement. Victims may submit a Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons for T visas. U visa applicants must submit a Form I-918, Supplement B, U Nonimmigration Status Certification. Agencies that can provide certifications include: tribal and territorial law enforcement, prosecutors, judges, child and adult protective services, federal and state departments of labor, and other government agencies with civil or administrative investigation and prosecutorial authority. Now, OSHA is specifically included.

Jackson Lewis attorneys are available to assist with any questions regarding OSHA investigations and the intersection between those investigations and grants of T and U visas.

New travel authorization systems are being postponed again in the United States and in Europe: REAL ID until May 7, 2025, and ETIAS (European Travel Information and Authorisation System) until 2024.

During the peak of the COVID-19 pandemic, the Department of Homeland Security (DHS) extended the deadline for REAL ID until May 3, 2023. As this date approached, it became clear the country was still not fully ready. At this point, approximately 53% of the population has REAL ID-compliant documentation. Since more than 40% do not, enforcement regarding domestic flights would cause significant problems.

REAL ID was passed by Congress based on recommendations from the 9/11 Commission. It sets minimum security requirements for the issuance of state driver’s licenses and identification cards. REAL ID documents have a star at the top.

These secure documents will be required for every air traveler 18 or older at airport security checkpoints for domestic travel. Those under 18 must be travelling with an individual who has acceptable documentation. When it is in force, REAL ID-compliant documentation will also be necessary for accessing federal facilities and entering nuclear power plants. Because federal facilities do have the authority to require REAL ID compliance even before May 7, 2025, those without a compliant identification document should check with the facility before planning avisit.

Even when REAL ID is in force, other documents can be substituted or used instead of REAL ID. Those other documents 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, among others.

In the meantime, Europe has been planning to roll out a program, ETIAS, since 2022, which will be similar to the U.S. Electronic System for Travel Authorization Registration System (ESTA). Once ETIAS is in force, all U.S. citizens travelling to Europe to enter the Schengen Zone will be required to register in advance online. The Schengen Zone consists of 27 members states, including those in the European Union. To register, the individual will need a passport valid for three months beyond the intended stay, an email account, and a credit card or debit card.

ETIAS has been delayed more than once, and it is being delayed again due to staffing issues, technical issues relating to data infrastructure, and the COVID-19 pandemic.

Be on the lookout for Jackson Lewis updates on REAL ID and ETIAS.

Department of Homeland Security (DHS) has announced a one-year extension of parole for certain Ukrainian nationals who, after the Russian invasion, were paroled into the United States for a period of one year before the two-year parole became available under the Uniting for Ukraine (UFU) program.

On a case-by-case basis, DHS will consider the extension for these early parolees and their family members who were paroled into the United States at a port of entry between February 24, 2022, and April 25, 2022. DHS expects to take approximately four weeks to review all individuals in this group.

If the parole is extended, DHS will proactively update Form I-94 online with the extension at the Customs and Border Protection (CBP) I-94 website. Individuals should download the updated I-94 as evidence of their extended status. In conjunction with this, USCIS will send new Form I-797 notices evidencing the extension of Employment Authorization Document (EAD) for another year to those individuals whose parole period is extended and already have EADs based on their parole. These will be mailed to the individuals’ addresses on file with USCIS. Those who have moved must change their address online through their existing USCIS online accounts. Alternatively, addresses can be changed by submitting a Form AR-11, Alien’s Change of Address Card or by using the USCIS online Change of Address page.

Ukrainian nationals who do not have an EAD may apply for one based on their parole by filing a Form I-765, Application for Employment Authorization, with USCIS. The USCIS’s fee for filing Form I-765 is waived for first-time Ukrainian parolee applicants. In addition:

  • Those who believe they are part of this group eligible for a one-year extension of parole but do not find an updated I-94 online by early April 2023 should reach out to
  • Those who believe they are part of this group eligible for a one-year extension of parole and hold a valid EAD based on parole but do not receive a new I-797 extending their current EAD by the end of April 2023 should reach out to

Jackson Lewis attorneys are available to assist with questions about options for Ukrainians and how to complete Form I-9, Employment Eligibility Verifications, for those with various statuses or extensions.

USCIS announced it has completed the annual H-1B selection process (“lottery”) for Fiscal Year 2024, with early reports indicating a record number of registrations submitted. Each year, it becomes increasingly difficult to obtain one of the 85,000 H-1B visas allotted under the congressionally mandated quota or “cap.” In light of the news, employers and foreign-national employees are now reviewing their contingency plans for those whose registrations were not selected.

Employers must understand the duration and limitations of their employees’ current visa status and evaluate potential opportunities to retain these talented individuals. For instance, some employees may be able to remain in the United States on their current visa to retry the H-1B lottery next year. Others may be eligible to change to another limited type of visa – such as TN, E-3, O-1, or, possibly, L-1 – if they can meet the specific eligibility requirements for those categories. Still others may be able to remain in the United States, and even apply for employment authorization, through a dependent visa of a spouse.

While the limit on H-1B visas is meant to protect U.S. workers, the unanticipated consequence is work leaving the United States. When companies are unable to hire enough skilled workers in the United States, they often resort to “offshoring” (i.e., relocating) the work abroad, giving countries such as India, China, and Canada a competitive advantage over the United States. However, when companies offshore work abroad, in addition to decreasing the number of foreign-nationals working in the United States, they may also find negative, unintended outcomes. For instance, if certain processes are no longer handled in the United States, companies may be required to reduce their number of U.S. workers as well. The effect of lost foreign-national workers also negatively affects the U.S. economy, as consumers and income disappear from the supply chain.

Other countries have taken advantage of the limitations of U.S. immigration. They have expanded their visa offerings to include remote or nomad visa categories to attract foreign-national workers and individuals who do not “win” the H-1B lottery. Some countries, like Canada, have made it easier for highly skilled workers to obtain temporary work visas and even pursue permanent residence. Canada, Mexico, the United Kingdom, Germany, and Australia have increasingly become popular alternatives to the United States as they broaden their immigration horizons.

Another way other countries have capitalized on the pool of available foreign-national talent is the creation of digital nomad visas, which allow various periods of work authorization with attractive tax benefits and perks. Of course, these nomadic work arrangements raise other questions and implications. For example, employers must consider, among other things:

  • Will having an employee abroad raise the risk of the employer becoming subject to local business taxation?
  • How will the company handle local payroll requirements and comply with local employment laws?
  • How will the company deal with the employee’s tax liabilities, workplace injuries, insurance and benefit plans?
  • How will the company handle communications, data protection, and cybersecurity?
  • What costs will the employee have to pay, and which will be borne by the company?

Jackson Lewis attorneys are available to assist companies and their foreign national employees in developing strategic alternatives to the H-1B visa and evaluating potential non-U.S. visa opportunities.

Lawful permanent residents may receive temporary evidence of their lawful permanent resident (LPR) status by mail, rather than physically visiting a field office, USCIS has announced.

LPRs eligible for delivery of temporary evidence of status will be mailed a Form I-94 with ADIT stamp, DHS seal, and a printed photo of the LPR obtained from USCIS systems.

Like the “in person” stamp, the “delivery” form is an acceptable travel document and an acceptable List A receipt for Form I-9 and E-Verify purposes.

To request temporary evidence of status, applicants must call the USCIS Contact Center, and:

  • The officer at the Center will verify the applicant’s identity, physical mailing address, and whether that address can receive UPS or FedEx express mail.
  • The officer will then create an in-person appointment, if necessary, or submit a request to the field office to initiate the creation of temporary evidence.
  • If temporary evidence need to be created, USCIS will review the request and mail the applicant a Form I-94 with ADIT stamp, DHS seal, and a printed photo of the LPR obtained from the USCIS database.

The “delivery” Form I-94 will look the same as the “in-person” form, except that the printed photo will be on the top right, instead of the top left, of the form.

If the applicant’s identity cannot be confirmed over the telephone, the applicant will still need to appear in person. Others with urgent needs or who do not have a useable photo in the USCIS system will also have to appear in person.

The purpose of the new process is to provide a more efficient way for individuals to receive temporary evidence of status without needing to schedule an appointment and travel to a USCIS field office.

Jackson Lewis attorneys are available to assist with this new process.

USCIS has expanded premium processing for F-1 students to pending Employment Authorization Documents (EAD) applications based on Optional Practice Training (OPT) and STEM OPT. On April 3, 2023, the same will be extended to new EAD applications for OPT and STEM OPT. The cost for this premium processing will be $1,500 and the timeframe will be 30 calendar days. These applications may be filed by mail or online.

This expansion of premium processing should help students and their employers who otherwise might be dealing with a lack or a gap in employment authorization. Timely filed STEM applicants have been eligible for a 180-day extension of their initial EADs, but given USCIS delays, that has not always been long enough.

In January 2023, USCIS announced that all I-140 immigrant visa petitions in the EB-1 category (including international executives and managers) and EB-2 National Interest Waiver categories are eligible for premium processing. The associated fee is $2,500 and the guaranteed timeframe is 45 days. While this, too, is longer than the “usual” 15 days, making premium processing available to international executives and managers and national interest waiver petitioners will move these green card cases forward and make it possible for certain spouses to apply for employment authorization once the I-140s are approved.

These changes are all part of a plan set out by the Department of Homeland Security (DHS) in March 2022. At that time, DHS said it would make premium processing available to Form I-140 petitions, I-539 applications to change or extend status, and I-765 applications for employment authorization. This plan delighted petitioners and applicants (although costs were raised and timelines expanded), but it was not clear how long it would take to implement. DHS explained that the new premium processing would be put into effect when the revenues existed to cover potential costs (such as hiring staff) without adversely affecting other processing times, and that DHS would effectuate the new benefits “as soon as feasible.” DHS noted that some of these changes would not be available until 2025.

In May 2023, premium processing may become available for certain exchange visitors with pending I-539 applications.

If you have questions about the new premium processing, Jackson Lewis attorneys are available to assist.

USCIS shared updated guidance on how it will evaluate evidence for petitions seeking O-1B classification as individuals of Extraordinary Ability in the Arts or in the Motion Picture and Television Industry (MPTV).

The updated guidance, released on March 3, 2023, is found in the USCIS Policy Manual, Volume 2, Part M, Chapter 4 O-1 Beneficiaries.

While O petitions are specifically for those with extraordinary ability, the petitions can be a useful substitute for eligible individuals who are not eligible for or do not “win” an H-1B visa in the Cap lottery.

The guidance is effective immediately and seeks to assuage stakeholder concerns for better transparency in the application of evidentiary requirements for the O-1B classification, while making the adjudication process more consistent and predictable. Compared to the O-1A requirements (which are more straightforward), the O-1B criteria have long been considered amorphous and overlapping, creating some confusion as to the kinds of evidence needed to meet each individual requirement. The latest changes aim at demystifying this category and the types of evidence needed for each.

Key updates include:

1. A new O-1B Chart in the Appendix

(joining its previously issued O-1A sister Chart). The Chart provides examples of evidence for each O-1B criterion that may be used to satisfy the O-1B requirements. USCIS also provides extensive “relevant considerations” that it uses to evaluate the evidence.

2.  Clarity on “comparable evidence.”

To use “comparable evidence,” a beneficiary must explain why a particular O-1B evidentiary category does not apply to their occupation and how their new evidence is comparable to that category. However, USCIS reiterates that, in order to use comparable evidence, the evidentiary category need not be completely inapplicable to the beneficiary’s occupation – it is enough for the beneficiary to demonstrate the O-1B is not “easily applicable” to the beneficiary’s profession.

The increased clarity of evidentiary requirements and a more streamlined and predictable adjudication pattern, we hope, will benefit employers wishing to sponsor O-1B candidates. Analyses of a particular candidate’s background to determine eligibility should become more precise and effective, allowing employers to make these sponsorship decisions with greater clarity as to a candidate’s chances of seeing an O-1 petition approved.

Jackson Lewis attorneys are available to assist in analyzing, strategizing and preparing visa petitions for prospective employees.

The Department of Homeland Security (DHS) has published instructions on how to apply for the extended and redesignated Temporary Protected Status (TPS) for Somalia.

In February 2023, DHS extended and redesignated TPS for Somalia until September 17, 2024.

Applications for re-registration and employment authorization document (EAD) extensions should be made during the reregistration period: March 13, 2023, through May 12, 2023.

Those with current EADs set to expire on September 17, 2021, or March 17, 2023, will be granted automatic extensions of EADs until March 17, 2024, while they wait for their new EADs to be approved. For more information on automatic extensions for Somalia and other TPS countries, please see our work authorization tool.

Individuals who have already applied for EAD extensions need only reregister. When their EAD cases are adjudicated, they will have September 17, 2024, expiration dates.

Those who wish to make initial applications for TPS and EADs beyond general eligibility requirements must have entered the United States on or before January 11, 2023, and must have been continuously physically present in the United States since March 18, 2023.

Somalian students in F-1 status may request work authorization or increased work hours while school is in session – and still maintain their F-1 status if they are experiencing severe economic hardship due to the crises in Somalia.

Please see the instructions in the Federal Register for specific information.

Jackson Lewis attorneys are available to assist in making applications and determining whether those with expired EADs continue to have work authorization.