USCIS has published a proposed rule that, once implemented, would significantly reform and modernize the H-1B Program. The Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers Rule has been released for Notice and Comment by the Department of Homeland Security (DHS).

The stated purpose is to streamline the H-1B process, provide greater benefits and flexibility for petitioners and beneficiaries, and improve the integrity of the Cap H-1B program. The comment period will run until December 22, 2023. At the end of the comment period, DHS will review all comments and publish the final rule.

The rule seeks to reform the following aspects of the H-1B Program:

  1. The H-1B Cap;
  2. Definitions in the H-1B Program; and
  3. H-1B and Other I-129 Filings.

1. Changes to the H-1B Cap/Lottery

DHS reports that in fiscal year (FY) 2021, there were 700 beneficiaries with at least five online Cap H-1B registrations and there was one beneficiary with 18. Two years later, in FY 2023, the numbers were significantly higher: 9,155 beneficiaries with at least five registrations and one beneficiary had over 83 registrations. Due to concerns about fraud and abuse in the H-1B lottery registration, DHS is proposing the following changes to address the issue of multiple cap registrations:

  • Registrations will be selected by unique beneficiaries, NOT by unique registrations. Beneficiaries may have registrations submitted by more than one petitioner for bona fide job openings but, regardless of the number of registrations, the beneficiary will be entered into the lottery only once. After being selected, each petitioner who submitted a registration for that beneficiary will be notified. This likely will give beneficiaries more ability to negotiate with employers about which job to accept. According to the proposed rule, this would not prevent the filing of legitimate concurrent H-1B petitions.
  • Related entities will be prohibited from submitting multiple registrations for the same beneficiary.
  • The rule would codify DHS’ ability to deny or revoke petitions where there was a false attestation regarding the bona fide job opening and clarify that the DHS can request contracts or other evidence to prove a position is not speculative.
  • DHS will require that all beneficiary registrants have a valid passport to make it easier for the agency to identify duplicate registrations. Beneficiaries with dual citizenship must use only one for registrations.
  • Petitioners must have a legal presence and be amenable to service of process in the United
    States.
  • DHS specifically noted that the changes to the Cap H-1B lottery might need to be postponed if the agency does not have enough time to implement the necessary changes.

To deal with delays in Cap adjudications and gaps in work authorization, DHS would:

  • Extend Cap Gap for qualified students in F status until April 1 of the FY or until the start date of approved H-1B petition, whichever is earlier; and
  • Permit Cap H start dates after October 1 if the case is not filed more than six months before the proposed start date of the petition.

2. Clarification of H-1B Definitions

Here, DHS is attempting to clarify definitions and consolidate all its guidance in one place. The rule would:

  • Revise the definition of “specialty occupation” to clarify that, if a position “normally” requires a certain degree, it does not mean the occupation “always” requires that degree.
  • Clarify that jobs may require a range of degrees if all the required degrees are directly related to the position and skills.
  • Expand the definition of “nonprofit research organization” and “government research organization” for H-1B Cap Exemption purposes by explaining that research must be a “fundamental activity” of the organization and not necessarily its “primary mission.” DHS would also revise the beneficiary’s requirements. They need only provide “essential work” even if the duties of the position do not directly further the organizations “essential purpose.”
  • Help entrepreneurs by allowing company owners in some circumstances may be eligible for H-1Bs.
  • Consolidate all the guidance on whether a move or a short-term placement requires an amended filing.
  • Clarify that “quantitative degrees” generally will not support an H-1B petition unless there is some specialization. For example, DHS notes that a general business degree alone would not support an H-1B petition for a marketing position, and a general engineering degree would not support a petition for a software developer position. In addition, requiring degrees as a proxy for a generic set of skills would not support an H-1B unless the petitioner can show an established past practice.

3. Changes That Affect H-1B and Other I-129 Filings

The rule would:

  • Clarify that if there is no material change, USCIS should defer to prior approvals.
  • Expressly require inclusion of maintenance of status documentation for all extensions and amendments.
  • Allow the amendment of validity periods where the validity period expires before petition  adjudication.
  • Codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation.

If you have any questions about the proposed new rule, please reach out to your Jackson Lewis attorney. Updates will be provided as the rule goes through the regulatory process.

Beginning on October 19, 2023, eligible Israeli citizens and nationals can apply for visa-free travel to the United States under the Visa Waiver Program (VWP) through the Electronic System for Travel Authorization (ESTA).

Israel’s entrance into the VWP was originally scheduled to begin on November 30, 2023, but that has been moved up based on current circumstances.

The VWP allows successful applicants to travel to the United States for tourism or business purposes for up to 90 days without first obtaining a U.S. visa. Israeli citizens and nationals who already have valid B-1/B-2 visas in their passports may continue to use them for these visitor purposes.

To be eligible for the VWP, applicants must have biometrically enabled passport books. ESTA applications are available only in English at this time. The Department of Homeland Security (DHS) said that applications in other languages will become available on or about November 1, 2023. Applications should take about 72 hours to vet and process if there are no issues.

Even individuals with approved ESTA applications may be refused entry to the United States if it is determined that they plan to remain in the United States for more than 90 days. DHS has advised, “Traveling on a visa may still be the best option for some travelers such as those who would like to stay in the United States longer than 90 days or those who think they may wish to extend their stay or change their status once in the United States.”

It is not possible to extend an individual’s stay or change status to another visa status if the individual enters on the VWP. Individuals admitted on the VWP who overstay the 90 days will be removable, may be subject to other bars, and will be ineligible for future visa waiver travel.

ESTA applications are available at https://esta.cbp.dhs.gov/ or individuals may download the ESTA Mobile app.

If you have questions about visa waiver travel, please reach out to your Jackson Lewis attorney.

The Department of Homeland Security (DHS) will soon be issuing a new proposed rule: Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program.

The abstract of the proposed rule indicates:

  • DHS will be revising the regulations regarding the “employer-employee” relationship;
  • Provide flexibility for start-up entrepreneurs who are on H-1B visas;
  • Implement new requirements regarding site visits for H-1B-dependent employers whose business information cannot be validated through commercially available data;
  • Provide flexibility on the proposed start date of petitions in certain circumstances;
  • Address “cap-gap” issues;
  • Bolster the H-1B registration process to reduce the possibility of misuse and fraud; and
  • Clarify when an amended or new petition must be filed based on material changes including streamlining notification requirements related to certain worksite changes among other provisions.

The rule reportedly has been cleared by the White House. This is generally the last step before the publication of the proposed rule for notice and comment in the Federal Register.

Jackson Lewis attorneys will provide updates regarding details as soon as they become available.

At the end of September, the Department of Homeland Security (DHS) announced the extension and redesignation of Temporary Protected Status (TPS) for Venezuela. The detailed instructions are now available in the Federal Register.

The 18-month extension of TPS and employment authorization for those who already have TPS runs from March 11, 2024, until September 10, 2025. The redesignation, on the other hand, runs from October 3, 2023, until April 2, 2024.

The timing for applying for the extension and the redesignation are different.

Venezuelans who are already in TPS and have employment authorization must apply for the extensions during the 60-day registration period that runs from January 10, 2024, until March 10, 2024. Failure to re-register could result in a withdrawal of status.

Because DHS recognizes that there may be a gap in employment authorization even for those who timely apply, Venezuelan TPS-based Employment Authorization Documents (EADs) with expiration dates of March 10, 2024, or September 9, 2022, will be automatically extended until March 10, 2025. Once new EADs are issued, they will have an expiration date of April 2, 2025.

Individuals who are taking advantage of the redesignation may make initial TPS and EAD applications between October 3, 2023, and April 2, 2025, when the redesignation will expire. As with those seeking extensions, individuals must meet all the general eligibility requirements, but they also must show:

  • Continuous residence in the United States since July 31, 2023; and
  • Continuous physical presence in the United States since October 3, 2023.

Individuals making initial applications must have a valid EAD to show work authorization. The automatic extensions would not apply.

Jackson Lewis attorneys are available to assist with TPS questions and associated employment authorization and Form I-9 Employment Eligibility Verification, as well as E-Verify completion issues.

USCIS has launched a new Enterprise Change of Address (E-COA) self-service tool to make it easier for foreign nationals to update their addresses.

All foreign nationals, even green card holders, are required to notify USCIS of a change of address within 10 days of the move. Beyond that regulation, it is important to notify USCIS of an address change especially if you have pending cases where USCIS might need to contact you or send you information – such as an Employment Authorization Document or a green card. It is not sufficient to simply notify the U.S. Postal Service (USPS) of the new address because USPS often will not forward mail from USCIS. Instead, the mail will be returned to USCIS and you will have to ask USCIS to search for the document for you. Using E-COA allows you to update all your pending matters with one application.

To use the new E-COA, an individual must have or open an USCIS online account. Once that is done, you will need to have some information on hand, such as your old address, your new address, and the receipt number(s) for any pending cases. You may use the new real-time processing system regardless of whether any pending case(s) were paper or online filings.

Some individuals with pending or approved applications or petitions related to the Violence Against Women Act (VAWA) or T or U nonimmigrant status will not be able to use E-COA at this time.

If you have any questions about updating your address, please reach out to your Jackson Lewis attorney.

The Department of Homeland Security (DHS) has announced the extension and redesignation of Temporary Protected Status (TPS) for individuals from Cameroon from December 8, 2023, until June 7, 2025. The extension will affect approximately 2,000 individuals. Under the redesignation, approximately 8,000 people will be eligible to apply for initial TPS designation. To take advantage of the redesignation, applicants must have continuously resided in the United States since October 5, 2023.

Based upon the agency’s review of conditions in Cameroon, DHS Secretary Alejandro Mayorkas has determined that the 18-month TPS extension and redesignation is warranted, because ongoing armed conflict and extraordinary and temporary conditions remain in effect.

Those who are applying for an extension of TPS and an extension of employment authorization should do so during the re-registration period that runs from October 10, 2023, until December 11, 2023. Those who apply during that period and who have Employment Authorization Documents (EADs) that expire on December 7, 2023, will be eligible for an automatic extension of employment authorization until December 7, 2024, while they wait for their new EADs. Individuals making initial applications for TPS and EADs may apply anytime until June 7, 2025. New applicants will need to present a valid EAD to prove work authorization.

Jackson Lewis attorneys can provide more information on TPS work authorization and how to fill out and submit Forms I-9 and E-Verify data for new employees and employees who need reverification. You can also find more information on TPS work authorization for all eligible countries with our TPS Tool.

This is the second of the two-part series Navigating Changes to a Job Post-PERM Certification, which evaluates the impact a job change may have on an approved, certified PERM and during a foreign national’s green card process.

As explained in Part 1, there are circumstances where it may not be necessary to start a new PERM application based on job changes. The following discusses examples of issues that may arise during or after a PERM labor certification has been approved and whether it may be necessary to start a new PERM application based on the changes.

Termination of foreign national’s employment. A certified PERM is valid only for the foreign national named in the application. Generally, terminating the foreign national’s employment would render the PERM invalid. There are, however, a couple of exceptions.

One exception is if the foreign national has an adjustment-of-status application filed with U.S. Citizenship and Immigration Services (USCIS) that has been pending for more than 180 days. In this situation, the foreign national may be eligible to transfer (or “port”) to a qualifying new job. The new job must be in the same or similar occupation classification as the original job that was the basis of the immigrant petition.

Another exception is for professional athletes and allows the athlete to continue the permanent residency process after changing teams. The new employer must be a team in the same sport as the team that filed the original, certified PERM.

In either of these situations, terminating the employment relationship with the foreign national would not invalidate the certified PERM. The foreign national’s new employer should not need to start a new PERM application; the foreign national should be able to complete the permanent residency process based on the original, certified PERM.

Employer name change. A certified PERM is valid only for the employer named in the application. While a company name change would result in a different name than the one listed in the certified PERM, the name change should not invalidate the certified PERM. The Department of Labor (DOL) considers the Federal Employer Identification Number (FEIN) to determine whether the change affects the validity of the certified PERM. If the FEIN remains the same after the name change, then there should be no impact on the validity of the original, certified PERM.

Employer ownership change. As mentioned above, the certified PERM is valid only for the employer to which it is issued. A corporate ownership change, such as an acquisition or merger, would invalidate the PERM, because the employer named in the original, certified PERM no longer exists. Since the original employer no longer exists, the job opportunity described in the certified PERM no longer exists. When the company ownership changes, therefore, the new or reorganized company would need to start a new PERM application.

However, if the new or reorganized company can show it is the “successor-in-interest” of the original company, then it may continue the permanent residency process based on the original company’s certified PERM. The new or reorganized company documents the transfer and assumption of ownership and shows the terms of the PERM job offer have not changed.

Employee’s worksite changes. The certified PERM is location-specific. Rather than specific to the physical address of the work location, the certified PERM is specific to the “area of intended employment” of the PERM job opportunity. The DOL defines an “area of intended employment” as the normal commuting distance from the place of intended employment.

There is no rigid measure of distance that would qualify as a “normal” commuting distance. The rule of thumb is that if the place of employment is within a Metropolitan Statistical Area (MSA), then any place within the MSA is within a normal commuting distance of the place of employment. However, the DOL does not consider the borders of an MSA to be absolute; a location outside an MSA may still be within a normal commuting distance even if it is not within the same MSA.

Determining if a move to a new location is within the area of intended employment is fact-specific. When the foreign national’s worksite moves to a new location, it would be necessary to evaluate the distance between the addresses to determine whether the new location is within the normal commuting distance from the original worksite. If so, then the move should not invalidate the certified PERM. If the move is to a location not within normal commuting distance, then a new PERM would be needed because the job is in a different area of intended employment.

What if the PERM job includes telecommuting, unanticipated worksites, or a work-from-home option? For these types of jobs, the DOL instructs that the PERM job opportunity should be based on the company’s headquarters, rather than the worker’s specific worksite. In this case, the foreign national’s location change should not invalidate the PERM, as a job relocation is considered inherent with jobs that involve telecommuting, unanticipated worksites, or a work-from-home option.

Eliminating work-from-home. During the COVID-19 pandemic, many employers began requiring employees to work from home due to government stay-at-home orders. During the beginning of the work-from-home era, many employers envisioned that remote work would be permanent. In 2022, however, there was a clear shift away from remote work, and employers began requiring workers to return to the office, at least for a part of the time. In a 2023 report from the U.S. Bureau of Labor Statistics, 72.5 percent of businesses reported that they had little to no remote work in 2022, compared to 60.1 percent in 2021. As more companies shift away from remote work, the work-from-home era appears to be over.

If the PERM job included telecommuting or work-from-home, but the employer subsequently eliminates telecommuting, would that affect the validity of the certified PERM? As explained above, the DOL considers jobs involving telecommuting to inherently include the possibility of a relocation. Based on the current guidance, eliminating work-from-home and requiring in-person work is akin to an unanticipated worksite or relocation. On that basis, eliminating work-from-home would not affect the validity of the certified PERM and it should not be necessary to start a new PERM application.

Job promotion. Since a certified PERM is job-specific, a substantial change in job duties affects the validity of the certified PERM. While a change in job title or duties would not automatically invalidate the certified PERM, substantial changes to a PERM job would result in a different job position than the one for which certification was issued.

Neither the DOL nor USCIS has issued clear guidance on what would constitute substantial changes that would invalidate the certified PERM. Some attorneys apply the same or similar occupational classification standard used for job porting. Other attorneys utilize a substantially similar standard, where a side-by-side comparison of the job duties is conducted to confirm whether the job duties are at least 50 percent similar.

Further, as described above, if the foreign national has an adjustment-of-status application filed with USCIS that has been pending for more than 180 days, then the foreign national may be eligible to transfer (or “port”) to a new job that is in the same or similar occupation classification as the original job.

Careful planning is needed to minimize the impact the PERM job change would have on the immigration strategy for the foreign national. Please contact a Jackson Lewis attorney if you have any questions.

The U.S. Supreme Court has finally put an end to the litigation that has dogged STEM OPT for years. On October 2, 2023, the Court refused to hear the technology workers’ union’s challenge to the Obama-era program that allows graduates in STEM fields to work in the United States for up to three years.

The WashTech union has been challenging the validity of STEM OPT (and OPT) since 2014, alleging the program harms U.S. workers. In October 2022, the U.S. Court of Appeals for the D.C. Circuit held the programs were valid. Then, in May 2023, WashTech petitioned the Supreme Court for review. With the Court’s denial, the appeals court decision stands and it seems the case has finally come to end. The programs will stand.

This is good news for the foreign nationals who highly value the post-graduation programs and companies in the STEM industries who continue to struggle to find enough highly skilled workers.

If you have any questions regarding OPT or STEM OPT, Jackson Lewis attorneys are available to assist you.

Diversity Visa (DV) Electronic Registration for Fiscal Year (FY) 2025 opens at noon ET on October 4, 2023, and closes at noon ET on November 7, 2023. There will be 55,000 Diversity Visas available for FY 2025.

There is no cost to register, but, if selected, applicants must pay the visa application or I-485 Adjustment of Status fees. Filing more than one application will lead to disqualification for the program.

Individuals born in certain countries are not eligible to apply because more than 50,000 nationals of those countries have immigrated to the United States in the past five years. The list of ineligible countries includes:

Bangladesh, Brazil, Canada, China, including Hong Kong, SAR (natives of Macau SAR and Taiwan are eligible), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), Venezuela and Vietnam.

Except for the United Kingdom, the “ineligible” list is the same as it was last year. This year, natives of the United Kingdom and its dependent territories are eligible.

Eligibility requirements and application instructions are on the Diversity Lottery website. Only the primary applicant (not dependents) must meet the eligibility requirements. Beyond nationality, the primary applicant must have:

  • At least a high school diploma or its equivalent; or
  • Two years of work experience in an occupation that requires at least two years of training or experience.

The Department of State describes how to confirm eligibility on its website.

Interested applicants should apply early and not wait until the last week, when heavy demand could lead to website delays. Applicants must apply online. No late or paper entries are accepted. Non-U.S. residents seeking to obtain a green card who are otherwise eligible may apply even if they are living abroad.

Jackson Lewis attorneys are available to answer questions about the Diversity Lottery process.

USCIS is increasing the maximum validity period to five years for initial and renewal Employment Authorization Documents (EADs) for certain categories of applicants, including noncitizens with pending adjustment of status applications. This is good news for employers and employees with long pending adjustments. The new policy applies to applicants with Form I-765 Applications for Employment Authorization that are pending or filed on or after September 27, 2023.

USCIS is also increasing EAD validity periods for:

  • Refugees (whether admitted as refugees or parolees)
  • Individuals granted asylum
  • Recipients of withholding of removal
  • Individuals seeking suspension of deportation or cancellation of removal

USCIS has noted that it decided to increase the validity periods based on a consideration of the validity period of the underlying immigration status or circumstance, the need to reevaluate noncitizens’ eligibility for employment authorization, and the anticipated adjudication timeframes for pending immigration benefits. While this will mean there will be some reduction in fees collected by USCIS, the new policy will also help USCIS to decrease its application backlogs. Despite the increase in maximum validity periods, individuals must maintain their underlying eligibility. If the underlying status changes, the EAD would no longer be valid.

The new policy also clarifies that the categories of individuals who have employment authorization incident to status may present their Form I-94 Arrival/Departure record as a List C document when completing I-9 Employment Authorization Verification forms. This includes:

  • Spouses of U.S. citizens or children of such spouses (K-3 or K-4 nonimmigrants);
  • Victims of severe forms of trafficking in persons (T-1 nonimmigrants);
  • Spouses of principal E nonimmigrants;
  • Spouses of principal L-1 nonimmigrants; and
  • Victims of qualifying criminal activity (U-1 nonimmigrants) and certain qualifying family members (U-2, U-3, U-4, and U-5 nonimmigrants).

Jackson Lewis attorneys are available to answer questions and assist in completing Forms I-9 and determining how the new policy affects employees.