Visa Lawyer Blog

Articles Posted in H1B Employers

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donald-trump-2030308_1280In this blog post, we discuss how Trump’s return to the White House on January 20th could impact employment-based visa applicants and their employers in the years ahead.

While the Trump campaign has been very vocal about their zero-tolerance policy toward illegal immigration, much less has been said about employment-based immigration. For that reason, it has been hard to know exactly what lies ahead for foreign workers.

While we don’t have all the answers, Trump’s track record on employment-based immigration helps provide insights into the changes we are likely to see during his second term.

To help readers understand how the incoming Trump administration may impact employment-based immigration, we have drawn up the top five areas where there is a high likelihood that changes may be introduced either by executive action or internal policymaking.

This information is based on our collective experience dealing with immigration agencies during Trump’s first term in office. Readers should be aware that none of this information is set in stone. Immigration policies are likely to evolve as the Trump administration settles in and as the political climate becomes more balanced.

Increasing Vetting and Processing Times for Employment-Based Workers

Foreign workers who plan to file employment-based cases should be aware of the following potential changes in the months ahead.

  1. The Return of Employment-Based Green Card Interviews?

In 2017, the Trump administration made the employment-based green card application process much more difficult when it required adjustment of status applicants to attend in-person interviews.

This directive was handed down with the passage of Trump’s executive order known as “Protecting the Nation from Foreign Terrorist Entry Into the United States.” This executive order was meant to crack down on immigration, by combating fraud and abuse in the green card process.

The decision to reinstate visa interviews for employment-based green card applicants led to a sharp increase in processing times at USCIS offices nationwide. This was due to the increased demand for interviews and limited resources available to accommodate the surge in applicants.

While in-person interviews are generally required under the law, prior to Trump’s presidency, the U.S. Citizenship and Immigration Services (USCIS) waived in-person interviews for a broad category of applicants, including employment-based green card applicants to better allocate resources toward higher risk cases.

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ai-generated-9069956_1280The fallout of the 2024 Presidential election has left high-skilled foreign workers asking what the Trump administration may have in store for them in the new year.

Perhaps the most vulnerable to attack is the H-1B work visa program, which was previously targeted by the Trump administration. A second term for Donald Trump promises to bring a new set of challenges for H-1B workers, including a hike on mandated salaries paid by U.S. employers, and increased scrutiny leading to a predicted surge in Requests for Evidence and H-1B visa denials.

About the H-1B Work Visa

H-1B workers are a subset of professional workers that have long filled a critical need in the U.S. labor market, especially for those working in the sciences, technology, engineering, and mathematics (STEM) fields.

Every year, U.S. employers from hundreds of industries use the H-1B visa program to bring highly skilled and well-educated foreign professionals to work for them in the United States. To qualify, H-1B workers must have a job offer from a U.S. employer to work in a “specialty occupation,” which requires a baccalaureate degree or the equivalent work experience to work in the field. Applicants must demonstrate that they have the academic and professional qualifications to work for the U.S. employer.

Only 65,000 H-1B visas are available every year, with an additional 20,000 visas made available to professionals with a U.S. master’s degree or higher in their field.

The annual visa limits mean that the H-1B work visa program is a “lottery” based visa, requiring employers to submit an electronic registration every Spring, to have a chance of being selected.

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winner-4149321_1280In this post, we share exciting news for participants of the H-1B FY 2025 electronic registration cap season!

On August 5, 2024, the U.S. Citizenship and Immigration Services (USCIS) announced that it conducted a second lottery to reach the annual numerical limit for the regular cap.

The second lottery selected additional beneficiaries from previously submitted electronic registrations for the H-1B Fiscal Year 2025 cap season.

Petitioners with selected registrations in the second lottery have been notified via their myUSCIS organizational accounts online that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

USCIS reminds petitioners that only those with selected registrations are eligible to file an H-1B  cap-subject petition during the filing period indicated on the selection notice. The period for filing the H-1B cap-subject petition will be at least 90 days. Petitioners will need to include a copy of the applicable selection notice with their FY 2025 H-1B cap-subject petition found on their myUSCIS online accounts.

Unfortunately, a second lottery was not conducted for the advanced degree exemption (also known as the master’s cap), because USCIS reached the annual numerical limit after the first lottery was completed.

Petitioners should be aware that having a selected registration gives you the ability to file an H-1B cap-petition with USCIS, however it does not mean that your case has been approved. You have the burden of proving eligibility for your petition, including the submission of all supporting documentation for your case, and you must await adjudication to receive a final decision from USCIS.

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united-states-supreme-court-6330563_1280The recent Supreme Court decisions handed down in Loper Bright v. Raimondo and Relentless, Inc. v. Dep’t of Commerce, have overturned a longstanding rule known as the “Chevron” doctrine, which eliminates the need for federal courts to defer to federal agency decisions and regulations moving forward. This move essentially strips power away from federal agency interpretations of the law and gives it back to the courts.

This is positive news in the world of immigration, considering that a federal agency’s interpretation of the Immigration and Nationality Act (INA) will no longer automatically prevail when litigating cases in court and filing immigration challenges to visa denials.

This will benefit many immigrants and businesses who for many years have been blocked by federal agencies from obtaining employment-based visas and green cards based on ambiguous agency interpretations of their cases.

For instance, in removal cases, those seeking review of decisions previously made by immigration judges’ or the Board of Immigration Appeals (BIA) will now have a clean slate, since courts no longer have to rely on an agency’s standpoint and can now interpret unclear laws with a new set of eyes.

These rulings could also pave the way for new litigation to be filed to defend challenges to previous visa denials. Where interpretations of the law once made by the U.S. Citizenship and Immigration Services (USCIS) were automatically upheld in court, they will now be challenged forcefully.

U.S. employers seeking a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker may also have greater opportunities to argue their cases in court and win on behalf of their clients.

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53598884922_4742d81a60_cLa semana pasada el mundo de inmigración vivió un evento sísmico. El Presidente anunció una acción ejecutiva histórica sobre inmigración que cambiará para siempre las vidas de los cónyuges indocumentados de ciudadanos estadounidenses y agilizará el proceso de visas de trabajo de no inmigrantes para los beneficiarios de DACA y otras personas indocumentadas.

En esta publicación, compartimos con ustedes todo lo que sabemos sobre cómo la orden ejecutiva beneficiará a los graduados universitarios estadounidenses que buscan visas de trabajo.

La acción ejecutiva del presidente Biden se anunció en el duodécimo aniversario del programa de Acción Diferida para los Llegados en la Infancia (DACA), promulgado por primera vez bajo la administración Obama. Además de brindar protección a las personas contra la deportación, la orden brinda alivio a potencialmente miles de beneficiarios de DACA y otros soñadores que han obtenido títulos académicos en los EE. UU. y están buscando oportunidades de empleo en campos relacionados con su curso de estudio.

Al hacerlo, el gobierno permitirá a los soñadores explorar opciones existentes de visas basadas en empleo, como las visas H-1B, TN, L, O, etc.

Detalles Claves

¿Qué hace la Orden Ejecutiva?

  • Visas de Trabajo: Los beneficiarios de DACA y otras personas indocumentadas pronto podrían solicitar exenciones aceleradas de inelegibilidad y recibir visas de trabajo temporales, otorgándoles estatus legal para vivir y trabajar en los Estados Unidos sin temor a la deportación.
  • Elegibilidad: Para ser elegible para visas de trabajo de no inmigrantes, las personas deben haber obtenido un título en una institución estadounidense de educación superior acreditada en los Estados Unidos y tener una oferta de empleo estadounidense en un campo relacionado con su curso de estudio.
  • Camino hacia la residencia: Existe la posibilidad de que estas visas de trabajo temporal creen un camino hacia la residencia permanente a través de opciones de patrocinio basadas en el empleo.

Importancia

Debido al polémico clima político, el Congreso de los Estados Unidos no ha logrado aprobar una reforma migratoria significativa que proporcione un camino legal para que los soñadores permanezcan en los Estados Unidos y contribuyan positivamente a la economía estadounidense, utilizando las habilidades y la educación que obtuvieron aquí en los Estados Unidos.

Por primera vez, el gobierno ordenará al Departamento de Estado (DOS) y al Departamento de Seguridad Nacional (DHS) que emitan una guía aclaratoria que haga posible que los beneficiarios de DACA y otras personas sin estatus legal soliciten exenciones aceleradas de inelegibilidad y visas de trabajo temporales.

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53598884922_4742d81a60_cLast week the world of immigration experienced a seismic event. The President announced a historic executive action on immigration that will forever change the lives of undocumented spouses of U.S. citizens and streamline the nonimmigrant work visa process for DACA recipients and other individuals. In this blog post, we share with you everything we know about how the executive order will benefit U.S. college graduates seeking work visas.

President Biden’s executive action was announced on the 12th anniversary of the Deferred Action for Childhood Arrivals (DACA) program, first enacted under the Obama administration. In addition to providing individuals protection from deportation, the order provides relief to potentially thousands of DACA recipients and other Dreamers who have earned academic degrees in the U.S. and are seeking employment opportunities in fields related to their course of study.

In doing so, the government will allow Dreamers to explore existing employment-based visa options such as H-1B, TN, L, O visas, etc.

Key Highlights

What the Executive Order does

  • Work Visas: DACA recipients and other undocumented individuals could soon apply for expedited waivers and receive temporary work visas, granting them legal status to live and work in the United States without fear of deportation
  • Eligibility: To be eligible for nonimmigrant work visas, individuals must have earned a degree at an accredited U.S. institution of higher education in the United States, and have an offer of employment from a U.S. employer in a field related to their course of study
  • Path to Residency: There is potential for these temporary work visas to create a path to permanent residency through employment-based sponsorship options.

Why This Matters

Due to the contentious political climate, the U.S. congress has failed to bring about meaningful immigration reform that provides a legal pathway for Dreamers to remain in the United States and positively contribute to the U.S. economy, utilizing the skills and education they gained here in the United States.

For the first time ever, the government will direct the State Department (DOS) and Department of Homeland Security (DHS) to issue clarifying guidance making it possible for DACA recipients and other individuals without legal status to apply for expedited waivers and temporary work visas.

How will this process work?

While complete details have not yet been released, the government will facilitate expedited review of waivers of visa ineligibility by clarifying that it is within a Consular officer’s discretion to grant a waiver for such individuals, making it easier for them to apply for work visas.

212(d)(3) Waivers and the Ten-Year Unlawful Presence Bar

Under current immigration law, DACA recipients and other undocumented immigrants face additional barriers to obtaining temporary work visas due to their unlawful presence. Under the law, anyone who has accrued unlawful presence for a year or more is subject to a ten-year bar that is triggered upon departing the United States. As a result, the ten-year bar prevents an individual from re-entering the United States for at least ten-years after their departure. This has been a long-standing problem for undocumented immigrants because the bar is triggered even when an individual leaves to obtain a visa at a U.S. Consulate or Embassy abroad.

To overcome the ten-year bar, work visa applicants are forced to obtain a discretionary waiver from the U.S. Customs and Border Protection’s Admissibility Review Office. This waiver is known as the INA 212(d)(3) waiver and is designed to excuse certain grounds of inadmissibility including unlawful presence. An approved waiver removes the bar and allows such individuals to apply for temporary work visas at U.S. Consulates and Embassies. Only once the U.S. work visa is issued, can the individual re-enter the United States in nonimmigrant visa status and work for their employer pursuant to the terms of the employment visa.

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audit-3929140_1280

New fraud prevention mechanisms applied to the H-1B program in fiscal year 2025 have led to a dramatic decrease in the number of eligible registrations for H-1B cap visas, plunging to almost 40% from the past year.

These fraud prevention mechanisms were introduced with the final rule “Improving the H-1B Registration Selection Process and Program Integrity,” which changed the H-1B selection process to center around unique beneficiaries, preventing employers from gaming the system and unfairly increasing their chances of selection.

Starting this fiscal year, each beneficiary could only be registered under one passport or travel document to prevent the submission of multiple registrations.

Recent USCIS data suggests that these new changes to the H-1B system were successful at combating fraud. The agency recently released its selection statistics for the fiscal year 2025 H-1B cap season.

The data shows a significant drop in the number of eligible registrations for fiscal year 2025 totaling 470,342—representing a 38.6% reduction when compared to the 758,994 eligible registrations received in fiscal year 2024.

Of these eligible registrations (470,342), USCIS selected 114,017 beneficiaries, resulting in a total of 120,603 selected registrations for fiscal year 2025.

The number of workers who were registered did not change significantly at 442,000 when compared with 446,000 last year.

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community-3245739_1280

If you’ve been a long-time follower of our blog, you’ll know that on January 29th the Department of State launched a pilot program giving certain H-1B applicants the ability to renew their visas without ever having to leave the United States.

The State Department accepted applications for this pilot program until April 1, 2024, granting domestic visa renewals for approximately 20,000 qualifying applicants, whose prior H-1B visas were issued by either Mission Canada (with an issuance date from January 1, 2020, through April 1, 2023) or by Mission India (with an issuance date of February 1, 2021, through September 30, 2021).

What was so exciting about the pilot program’s announcement was the government’s intention to potentially expand the scope of the domestic visa renewal program to more applicants and other visa categories.

In a recent Committee Liaison meeting with the American Immigration Lawyers Association (AILA), State Department representatives said that the pilot program was a resounding success. The pilot program benefitted thousands of workers and saw strong participation from big companies, including a broad spectrum of employers from the hospitality, retail, manufacturing, technology, finance, and academic sectors.

When asked whether the State Department could release statistics about the program, representatives responded that such data is not yet available but revealed that the average turnaround time for approved applications was under two weeks.

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spin-wheel-7137017_1280

In this blog post, we bring you an important announcement regarding the H-1B fiscal year (FY) 2025 cap season.

Today, April 1st the U.S. Citizenship and Immigration Services (USCIS) announced that it received sufficient electronic registrations during the initial registration period to meet the annual numerical limitations for the fiscal year (FY 2025), including for the advanced degree exemption (also known as the master’s cap).

Due to this, the agency has completed the H-1B visa lottery and selected unique beneficiaries at random from the properly submitted registrations to reach the H-1B cap.

As of today, April 1st  USCIS has notified all prospective petitioners of their selection via their myUSCIS organizational accounts. Please be aware that only selected beneficiaries are eligible to file an H-1B cap-subject petition with USCIS.

Congratulations to all those who were selected!

How will I know if I was selected in the lottery?

Petitioners with selected registrations will have their myUSCIS online organizational accounts updated to include a selection notice, which includes details of when and where to file. If you submitted your electronic registration with the assistance of an attorney, you should contact your legal representative to determine whether you were selected in the randomized lottery and your next steps.

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