Visa Lawyer Blog

Articles Posted in Employment

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We are pleased to report that today the U.S. Department of State’s Bureau of Consular Affairs published the December Visa Bulletin. Unfortunately, the December Visa Bulletin brings almost no movement.

USCIS Adjustment of Status

For employment-based and family-sponsored preference categories, the U.S. Citizenship and Immigration Services (USCIS) has confirmed it will continue to use the Dates for Filing chart to determine filing eligibility for adjustment of status to permanent residence in the month of December.

Highlights of the December 2024 Visa Bulletin

At a Glance

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

Employment-Based Categories

  • The Final Action Date for India EB-2 will advance by two weeks to August 1, 2012
  • The Final Action Date for India EB-3 will advance by one week to November 8, 2012
  • All other employment-based Final Action Dates and Dates for Filing will remain the same in December as the previous month

Family-Sponsored Categories

  • All family-sponsored Final Action Dates and Dates for Filing will remain the same in December as the previous month

For more details, please see our analysis of the December 2024 Visa bulletin below.

Employment-Based Categories

FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

According to the Department of State’s December 2024 Visa Bulletin, the following Final Action cutoff dates will apply for employment-based categories in the month of December.

  • No change from previous month, except for EB-2 India and EB-3 India

EB-1 Aliens of extraordinary ability, Outstanding Professors and Researchers, and Certain Multinational Managers or Executives

  • EB-1 India will remain at February 1, 2022
  • EB-1 China will remain at November 8, 2022
  • EB-1 All other countries will remain current

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

  • EB-2 India will advance by two weeks to August 1, 2012
  • EB-2 China will remain at March 22, 2020
  • EB-2 All other countries will remain at March 15, 2023

EB-3 Professionals and Skilled Workers

  • EB-3 India will advance by one week to November 8, 2012
  • EB-3 China will remain at April 1, 2020
  • EB-3 All other countries will remain at November 15, 2022

EB-3 Other Workers

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ai-generated-8570989_1280On October 11, 2024, the U.S. Citizenship and Immigration Services (USCIS) released updated guidance for requests to expedite travel-related documents and expedite requests relating to government interests. The guidance is effective immediately.

Who may file an expedite request?

Individuals who are located inside the United States may request that USCIS expedite the adjudication of their application, petition, request, appeal, or motion. USCIS considers expedite requests on a case-by-case basis and has the discretionary authority to approve or deny an expedite request.

The grounds that may be considered to file an expedite request include, but are not limited to, the following:

  1. Severe financial loss to a company or person

The updated guidance states that those filing an expedite request based on severe financial loss to a company or person must provide corroborating documentation supporting their request.

Where a company is involved, such evidence may include documentation proving that the company is at risk of failing, losing a critical contract, or required to lay off other employees.

For example, a medical office may suffer severe financial loss if a gap in a doctor’s employment authorization would require the medical practice to lay off its medical assistants.

Where an individual is applying for an expedite based on severe financial loss, evidence of a layoff or termination may be sufficient to establish financial loss.

For example, if an individual is unable to travel for work and this would result in job loss, an expedite might be necessary.

USCIS has said that “an individual’s need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment.”

Additionally, severe financial loss can be established if the failure to expedite would result in a loss of critical public benefits or services.

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border-6971270_1280Today, October 17, 2024, the U.S. government announced new measures providing immigration relief to Lebanese nationals currently residing inside the United States.

18-Month Designation of TPS for Lebanon

Firstly, the Department of Homeland Security (DHS) has announced the designation of Lebanon for Temporary Protected Status (TPS) for a period of 18 months. This decision marks Lebanon’s first designation for TPS.

This designation was made based on ongoing armed conflict and extraordinary and temporary conditions in Lebanon that prevent its nationals from safely returning to their country.

A notice will soon be published in the Federal Register confirming the Secretary of Homeland Security’s designation of Lebanon including more details regarding the designation. Lebanese nationals who are approved for TPS can lawfully remain in the United States while the security situation improves. Those who are eligible can apply for temporary employment authorization by filing Form I-765 Application for Employment Authorization at the same time of filing Form I-821, Application for Temporary Protected Status.

What We Know

To be eligible for TPS under the Lebanon’s designation, Lebanese nationals (and individuals having no nationality who last habitually resided in Lebanon) must demonstrate continuous residence in the United States since October 16, 2024.  Those who attempt to enter the United States after October 16, 2024, are ineligible for TPS. Lebanese nationals currently not residing in the United States are also ineligible to receive benefits.

The program’s effective date has not yet been announced but is expected to be published in the Federal Register in the coming weeks including the application instructions.

As a reminder, TPS applicants must meet all eligibility requirements and undergo security and background checks to gain approval.

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super-6698001_1280In the complex landscape of U.S. immigration, the O-1A visa stands out as a great option for individuals with extraordinary abilities in fields such as business, sciences, athletics, or education. This visa offers a pathway for highly talented professionals to work in the United States while showcasing their exceptional expertise.

An O-1A visa petition must be supported by documentation showing receipt of a major internationally recognized award, like a Nobel Prize. However, if the applicant has not received such an award, they may still apply if they meet at least three of the following criteria:

  • Evidence of receipt of nationally or internationally recognized prizes or awards for excellence in the field.
  • Evidence of membership in associations in the field that require outstanding achievements of their members, as judged by recognized experts in the field.
  • Evidence of authorship of scholarly articles in the field, in professional journals, or other major media.
  • Evidence of published material in professional or major trade publications or major media about applicant’s work.
  • Evidence of participation on a panel, or individually, as the judge of the work of others in the field.
  • Evidence of employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
  • Evidence of commanding a high salary or other compensation for services in relation to others in the field.
  • Evidence of original contributions of major significance in the field (scientific, scholarly, or business-related).
  • Or any comparable evidence to support the beneficiary’s eligibility, if the above criteria are not readily applicable to the occupation.

“Sophia’s” O-1A Journey

In our client’s case, “Sophia” was a Marketing Development professional with over 13 years of experience, creating innovative campaigns for well-known businesses throughout the world.

In support of her O-1A visa, “Sophia,” provided ample evidence to meet more than three of the criteria, including evidence of her leading roles as a marketing professional throughout her career, memberships in prestigious organizations, judging positions in her profession, evidence of high compensation as a marketing professional, recognition in the major media, authorship of scholarly articles, and the exhibition of her work.

While “Sophia’s” immigration journey seemed to go smoothly at first, she ran into some challenges which prompted her to seek representation from our law office. In this blog post, you will learn how “Sophia” was able to bounce back and achieve success after experiencing a few hiccups along the way.

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money-3883174_1280Recently, the U.S. Citizenship and Immigration Services (USCIS) published guidance to help petitioners of Form I-140, Immigrant Petition for Alien Workers submit the correct filing fee payment when submitting their applications with USCIS.

Since USCIS increased its filing fees in April and implemented a new asylum program fee of $600 for employment-based petitioners filing I-140, it has been rejecting a very high number of petitions due to incorrect fees and missing information.

USCIS reminds all petitioners of Form I-140 that they must provide a payment for the $600 asylum program fee, unless they qualify for a reduced fee of $300 (small employers with 25 or fewer full-time employees), or are exempt from the asylum program fee (nonprofit organizations).

Petitioners who do not provide the correct asylum program fee and the appropriate I-140 filing fee may have their cases rejected.

Additionally, petitioners must provide correct responses on Part 1 for questions 5 and 6 of Form I-140 notifying USCIS whether they qualify for a reduced fee. This portion of the form cannot be left blank.

Petitioners who fail to provide the correct payment with the I-140 petition, or who do not provide a response for questions 5 and 6 in Part 1, may have their cases rejected.

USCIS has published the following guidance on how to complete questions 5 and 6 and determine the correct payment. 

Petitioner Type In Part 1 of the I-140 Question 5 In Part 1 of the I-140 Question 6 Asylum Program Fee Filing Fee Total Payment
Non-profit or Small Business 
A nonprofit business, institution, or government research organization. Yes  Yes or No $0 $715 $715
A small business or organization employing 25 or fewer full-time employees in the United States No Yes $300 $715 $1,015
Individual Self-Petitioner 
A self-petitioner employing 25 or fewer (or zero) full-time employees in the United States No Yes  $300 $715 $1,015
All Other Petitioners 
All petitioners who do not qualify for a reduced Asylum Program Fee and answer “No” to both questions 5 and 6. No No $600 $715 $1,315

I-140 Filing Fee Guidance

USCIS requests that I-140 petitioners provide separate payments for the $715 filing fee and the Asylum Program Fee, using the same type of payment, either check/money order or Form G-1450 to pay with a credit card. Packages filed with more than one type of payment may be rejected.

Petitioners should also review the FAQ section discussing the new USCIS filing fees in subsection “Employment-Based Forms and Fees” for further guidance.

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

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

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

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learn-6874566_1280Today the U.S. Department of State’s Bureau of Consular Affairs published the October Visa Bulletin. In this blog post, we breakdown the movement of the employment-based and family-sponsored categories in the coming month.

USCIS Adjustment of Status

For employment-based preference categories, the U.S. Citizenship and Immigration Services (USCIS) has confirmed it will use the Dates for Filing chart to determine filing eligibility for adjustment of status to permanent residence in the month of October.

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

Highlights of the October 2024 Visa Bulletin

At a Glance

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

Employment-Based Categories

  • The Final Action date for China EB-3 Professionals and Skilled Workers will retrogress by five months, to April 1, 2020. The Date for Filing will retrogress by almost 8 months, to November 15, 2020.
  • The Final Action date for EB-3 Professionals and Skilled Workers Worldwide will advance by almost two years, to November 15, 2022. The Date for Filing will advance by one month, to March 1, 2023.
  • The Final Action date for China EB-5 Unreserved will advance by seven months, to July 15, 2016. The Date for Filing will retrogress by three months, to October 1, 2016.
  • The India EB-5 Unreserved Final Action date will advance by more than one year, to January 1, 2022. The Date for Filing will remain at April 1, 2022.

Family-Sponsored Categories

Final Action

  • F1 Mexico will advance by 7.8 months to January 1, 2003
  • F2A Mexico will advance by 1.1 months to March 8, 2021
  • F2A All other countries will advance by 1 week to November 22, 2021
  • F2B Mexico will advance by 6 months to January 15, 2005
  • F3 Mexico will advance by 5.7 months to August 22, 2000
  • F4 Mexico will advance by 2 weeks to February 22, 2001
  • F4 India will advance by 1.2 months to March 1, 2006

Dates for Filing

  • F1 Mexico will advance by 6 months to October 1, 2005
  • F2B Mexico will advance by 3 months to August 1, 2005
  • F3 Philippines will advance by 6 months to May 8, 2004
  • F3 All other countries will advance by 5.9 months to July 1, 2011
  • F4 Philippines will advance by 4 months to August 1, 2006

Now let’s dive into our analysis of the October 2024 Visa bulletin. 

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portugal-1355102_1280As of April 23, 2024, Portugal has joined the coveted list of countries eligible to participate in the E-2 Treaty Investor program via the passage of the Advancing Mutual Interests and Growing Our Success (AMIGOS) Act.

E-2 nonimmigrant visas are reserved for investors who are nationals of a treaty country. To qualify, an investment must be made into a U.S. company, the investor must hold at least 50% of the ownership interests, and the company must meet the E-2 visa requirements.

The E-2 visa is a very popular visa because there is no limit to the number of times the visa can be renewed, and it allows the company to sponsor other nationals of the treaty country as employees.

The addition of Portugal to the E-2 visa program presents a unique opportunity for Portuguese entrepreneurs to establish and grow their own businesses in the United States, while giving spousal dependents the opportunity to work for any employer in the United States.

It also presents an exciting opportunity for Brazilians who hold dual nationality with Portugal to participate in the program, as well as those who can obtain Portuguese citizenship through ancestry, legal residence, or by other lawful means.

Key Benefits of the E-2 visa program for Portuguese nationals

  • By law, the E-2 visa does not require any minimum investment amount and instead focuses on whether the investment is proportional based on the nature of the business. In most cases, entrepreneurs invest anywhere from $50,000 to $100,000 in their businesses.
  • E-2 treaty investor visas for Portuguese nationals are valid for five years and can be renewed indefinitely so long as the E-2 eligibility criteria are met.
  • Spouses and unmarried children under the age of 21 can apply for E-2 dependent visas to accompany the E-2 principal investor in the United States. Spouses are eligible for work authorization and can work for any employer in the United States.
  • Processing times for an E-2 visa interview at the U.S. Embassy in Lisbon can vary, but applicants can generally expect to be called for an interview approximately three months after submitting their application.  Upon approval, visas are typically issued within three to five business days.
  • Brazilians who hold dual nationality with Portugal can apply for the E-2 visa at the U.S. Consulate in Sao Paulo, the designated adjudicating post in Brazil for E-2 Treaty Country nationals.

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people-4417185_1280Recently the U.S. Citizenship and Immigration Services (USCIS) announced new changes to the International Entrepreneur Rule effective October 1, 2024.

What is the International Entrepreneur Rule

The International Entrepreneur Rule (IER), was first established by the Department of Homeland Security (DHS) in 2017.

The program allows noncitizen entrepreneurs to live and work in the United States temporarily, if they can demonstrate that their businesses will provide a significant public benefit to the United States via economic benefits and job creation.

Those granted parole under the program are eligible to work for their startup companies for an initial period of 2 ½ years, and their dependents can accompany them to the United States.

The current requirements of the International Entrepreneur parole program are as follows:

  • Entrepreneurs already in the United States and those residing overseas are eligible to apply
  • Start-up entities must have been formed in the United States within the past five years
  • Start-up entities must demonstrate substantial potential for rapid growth and job creation by showing at least $264,147 in qualified investments from qualifying investors, at least $105,659 in qualified government awards or grants, or alternative evidence
  • The spouse of the entrepreneur may apply for employment authorization after being paroled into the United States
  • The entrepreneur may be granted an initial parole period of up to 2½ years. If approved for re-parole, based on additional benchmarks in funding, job creation, or revenue described below, the entrepreneur may receive up to another 2½ years, for a maximum of 5 years under the program

New Increases to Qualifying Investment Amounts

  • Initial Applications: Starting October 1st to demonstrate the businesses’ potential for growth and job creation, initial applicants will need to show at least $311,071 in qualified investments from qualifying investors, at least $124,429 in qualified government awards or grants, or, if only partially meeting the threshold investment or award criteria, alternative evidence of the start-up entity’s substantial potential for rapid growth and job creation.
  • Re-parole Applications: For those applying for a second period of authorized stay, the entrepreneur must demonstrate that the start-up entity has either:
    • Received a qualified investment, qualified government grants or awards, or a combination of such funding, of at least $622,142(currently $528,293);
    • Created at least five qualified jobs; or
    • Reached annual revenue in the United States of at least $622,142 (currently $528,293) and averaged at least 20% in annual revenue growth.

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