Category: Immigration

USCIS Reaches FY 2025 H-1B Visa Cap

U.S. Citizenship and Immigration Services (USCIS) has announced that it has received enough petitions to meet the congressionally mandated caps for H-1B visas for fiscal year (FY) 2025. This includes the 65,000 regular cap and the 20,000 U.S. advanced degree exemption, commonly known as the master’s cap.

Quick Hits

  • USCIS has reached the FY 2025 H-1B visa cap, including the 65,000 regular cap and the 20,000 U.S. advanced degree exemption (master’s cap).
  • Nonselection notices will be sent to registrants soon.

In the coming days, USCIS will send nonselection notices to registrants through their online accounts. Once all nonselection notifications have been sent, the status for properly submitted registrations that were not selected for the FY 2025 H-1B numerical allocations will be updated to: “Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.”

USCIS will continue to accept and process petitions that are exempt from the cap. This includes petitions filed for current H-1B workers who have been previously counted against the cap and still retain their cap number.

Registration for the H-1B cap lottery for FY 2026 is expected to open in March 2025.

© 2024, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more on USCIS, visit the NLR Immigration section

Shorter Path to Green Card: New USCIS Guidance for EB-1 Eligibility for Foreign Nationals With Extraordinary Ability

For foreign nationals with “extraordinary ability” in the sciences, arts, education, business or athletics, the path to a green card normally has a much shorter route. The EB-1 extraordinary ability category is a type of employment-based, first-preference visa that has several advantages for a “small percentage of individuals” positioned to prove their expertise within a specific area. As indicated by the elite immigrant visa category, an extraordinary amount of documentation is required to meet the high threshold for EB-1 eligibility.

To provide an example of the evidentiary criteria, this category reserved for individuals with extraordinary ability requires that individuals demonstrate extraordinary ability through sustained national or international acclaim. To do so, applicants must meet at least three of the 10 criteria, or provide evidence of a major one-time achievement, such as a Pulitzer Prize, Oscar, or Olympic medal. In addition, applicants must provide evidence showing that they will continue to work in the area of expertise.

More specifically, the applicant must provide evidence of at least three of the following:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Membership in associations in the field which demand outstanding achievement of their members
  • Published material about the candidate in professional or major trade publications or other major media
  • Judgment of the work of others, either individually or on a panel
  • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Authorship of scholarly articles in professional or major trade publications or other major media
  • Display of work at artistic exhibitions or showcases
  • Performance of a leading or critical role in distinguished organizations
  • Command of a high salary or other significantly high remuneration in relation to others in the field
  • Commercial successes in the performing arts

While U.S. Citizenship and Immigration Services (USCIS) has been consistent in detailing the criteria to be demonstrated, the specific evidence deemed acceptable has evolved over the lifetime of this visa category. Last September, USCIS updated its policy manual on employment-based first-preference (EB-1) immigrant petitions in the Extraordinary Ability classification. Specifically, USCIS provided examples of comparable evidence and the way in which USCIS will “consider any potentially relevant evidence.”

To further clarify the acceptable types of evidence, USCIS issued another policy manual update on Oct. 2. The most recent update provided additional clarification, stating:

  • “Confirms that we consider a person’s receipt of team awards under the criterion for lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  • Clarifies that we consider past memberships under the membership criterion;
  • Removes language suggesting published material must demonstrate the value of the person’s work and contributions to satisfy the published material criterion; and
  • Explains that while the dictionary defines an “exhibition” as a public showing not limited to art, the relevant regulation expressly modifies that term with “artistic,” such that we will only consider non-artistic exhibitions as part of a properly supported claim of comparable evidence.”

These clarifications likely will provide more consistency in the adjudication process.

This article was co-authored by Tieranny Cutler, independent contract attorney.

© 2024 BARNES & THORNBURG LLP
For more on EB-1, visit the NLR Immigration section

What U.S. Travelers to UK Need to Know About UK’s Electronic Travel Authorisation (ETA)

Americans traveling to the UK as tourists or business visitors are generally visa-exempt. Starting on Jan. 8, 2025, visa-exempt Americans traveling to the UK will need to use the new Electronic Travel Authorisation (ETA) scheme prior to travel. Americans will be able to apply for ETA starting on Nov. 27, 2024.

Like the U.S. ESTA (Electronic System for Travel Authorization), ETAs are digitally linked to the traveler’s passport, allowing smoother and more secure immigration processing.

Applying for an ETA costs ten pounds. The ETA expires either two years after issuance or when the individual’s passport expires – whichever is earlier. If an individual obtains a new passport, they must apply for new ETA.

The ETA allows:

  • Multiple entries
  • Stays for no longer than six months

The ETA is being rolled out in phases. It is already in effect for nationals from the Gulf States. On Jan. 8, 2025, approximately 50 other countries, including the United States, will be added to the list. ETA will be rolled out for European countries on April 2, 2025.

The application is online and through the UK ETA app. Every individual who is traveling will need a separate ETA application. It is best to apply early, although applications are usually processed within three working days.

The similar ETIAS program for travel to the European Union has been delayed, but it is expected to go into effect sometime in 2025.

Jackson Lewis P.C. © 2024
For more news on U.K. Electronic Travel Authorisation, visit the NLR Immigration section.

Common Mistakes When Applying for the Diversity Immigrant Visa Program

The Diversity Immigrant Visa Program, commonly referred to as the green card lottery, was established by the U.S. government to provide individuals from countries with low immigration rates a chance to live and work in the U.S.

Each year, the U.S. Department of State conducts a random lottery drawing to select 55,000 applicants who will be given the opportunity to apply for a Diversity Visa (DV). This selection process is based on a computer-generated random lottery system, ensuring fairness and equal opportunities for all participants.

To qualify, applicants must be a citizen of a country deemed eligible by the U.S. government and have either a high school education or its equivalent or possess two years of work experience in a qualifying occupation.

Applying for the DV Program is an exciting opportunity for those looking to immigrate to the United States. However, even a minor mistake when filling out the entry form can lead to a major complication in the registration process.

By understanding the most common mistakes and learning how to avoid them, applicants can improve their chances of submitting a successful entry to the green card lottery.

The seven “deadly sins” of the Diversity Visa application process

Green card lottery entries are submitted electronically via the Electronic Diversity Visa (E-DV) website during the specified registration period. Although the DV instructions provide detailed guidance for completing the online entry form, there are seven common mistakes — aka “deadly sins” — that could result in delays or even rejection of the application.

1. Submitting multiple entries

The law allows only one entry by or for each person during each registration period. The Department of State uses advanced technology to detect multiple entries. Submissions of more than one entry will be disqualified. Applicants should take the time to review and double-check their information before submitting it.

2. Missing the deadline

No late entries or paper entries are accepted. Applicants must use the E-DV website for submission and must submit their application by the specified deadline.

The online registration period for the 2026 DV Program is open now through Nov. 5, 2024, at 12 p.m. Eastern Standard Time (EST) (GMT-5).

3. Inputting inaccurate personal information

Applicants should ensure their name and surname are entered exactly as they appear on their passport or other identification documents. They should avoid using nicknames or name variations to prevent discrepancies that could raise concerns during the review process. Applicants should also double-check the date of birth and make sure the correct day, month and year are entered. Inaccuracies in this section can lead to delays or even rejection of the entry form.

4. Omitting family members

Applicants should make sure to include all immediate family members in the entry, including a spouse and any unmarried children under the age of 21. Failure to list any eligible family members can result in their exclusion from the program.

5. Using third-party websites for assistance

Be cautious of third-party websites claiming to assist with the entry process. These sites often charge unnecessary fees and may provide inaccurate information. It is recommended to visit the official Department of State website or trusted government portal for the application.

6. Leaving entry fields blank

As we outlined above, to avoid rejection or delays applicants should ensure that all required fields are filled out. Missing information or leaving any mandatory fields blank can result in disqualification. It’s important to take the time to carefully review the form and provide accurate and complete responses.

7. Not meeting mandatory requirements

To qualify, an applicant must either have a high school education or equivalent, defined as the successful completion of a 12-year course of formal elementary and secondary education. Alternatively, an applicant must have at least two years of work experience within the past five years in an occupation that requires a minimum of two years of training or experience.

Avoid leaving it all to luck with BAL

Being aware of these common reasons for disqualification and learning how to avoid them can help ensure the Diversity Immigrant Visa Program entry is filled out correctly, providing applicants the chance of selection in the green card lottery.

While this is one route to a green card, there are more paths that don’t rely on luck. For example, a National Interest Waiver (NIW) is an immigrant visa that creates a path to a green card without a job offer or labor certification. The NIW is an alternative to the traditional PERM process and is available to those whose work is deemed to be in the national interest of the United States.

There are many ways to get a green card in the United States and the process generally involves a petition, an application, a biometrics appointment, interviews with immigration officials and decisions that potentially come with requests for more information and documents. The processing time for a green card can also vary from one to six years, depending on demand.

©2024 Berry Appleman & Leiden. All Rights Reserved.
For more news on Diversity Immigrant Visa, visit the NLR Immigration section.

USCIS Issues Updated Guidance on ‘Sought to Acquire’ Requirement of Child Status Protection Act

On Sept. 25, 2024, U.S. Citizenship and Immigration Services (USCIS) updated its Policy Manual to clarify the calculation of the Child Status Protection Act (CSPA) age for noncitizens seeking CSPA protection under the “extraordinary circumstances” exception. By way of background, CSPA protects dependent children from “aging out” and becoming ineligible for permanent residence as derivative beneficiaries under certain circumstances. Please review our coverage of USCIS CSPA policy updates.

While CSPA protection is generally determined based on the date an immigrant visa becomes available, requiring dependent children to seek to acquire it within one year of that date, the “extraordinary circumstance” policy provides exceptions to that requirement under limited circumstances. Specifically, where such circumstances were not created by the applicant but directly affected their ability to seek to acquire permanent residence within one year of visa availability, and these facts are reasonable, USCIS has said it would excuse dependents from the “seek to acquire” requirement. USCIS has now provided further clarity regarding the “seeking to acquire” component of CSPA calculation under extraordinary circumstances.

Key updates:

  • Seeking to Acquire: For applicants excused from the “sought to acquire” requirement due to extraordinary circumstances, the CSPA age would be calculated from the date the immigrant visa first became available, provided the visa remained available for a continuous one (1) -year period without any intervening visa unavailability.
  • Intervening Visa Unavailability: If the immigrant visa became available and subsequently unavailable, the CSPA calculation could rely on the date an immigrant visa first became available if they can demonstrate extraordinary circumstances prevented them from seeking to acquire their immigrant visa before it became unavailable.

USCIS has issued this new guidance to ensure consistent adjudication for all Applications to Adjust Status relying on extraordinary circumstances to secure CSPA protection. This updated guidance applies to all applications pending on or after Sept. 25, 2024, and supersedes any prior related instructions.

©2024 Greenberg Traurig, LLP. All rights reserved.
For more on USCIS, visit the NLR Immigration section.

Are You Eligible for Passport Renewal Online?

In good news, the State Department has announced the roll-out of its new online passport renewal system. Eligible individuals can renew their 10-year passports online without having to mail in any documentation.

Be sure to plan ahead if you are using the online service because only routine service is available – no expedited processing.

Although applicants will not be required to turn in their “old” passport, that passport will be cancelled after the renewal application is submitted and will no longer be valid for international travel.

Eligibility requirements for online processing:

  • The old passport is a 10-year passport, and the applicant is at least 25 years of age;
  • The old passport was issued between 2009 and 2015, or more than 9 years but less than 15 years from the date the new application is submitted;
  • There is no request for change of name, gender, or place of date of birth;
  • The applicant is not travelling for at least 8 weeks from the application submission date;
  • The applicant is seeking a regular (tourist) passport, not a special issuance passport (such as diplomatic, official, or service [gray cover] passports);
  • The applicant lives in the United States, either in a state or territory (passports cannot be renewed online from a foreign country or using Army Post Office [APO] or Fleet Post Office [FPO]); and
  • The applicant is in possession of their current passport and it is not damaged or mutilated and it has not been reported as lost or stolen.

To renew online, the applicant must sign in or create an account on Home | MyTravelGov (state.gov) and follow the step-by-step directions. The applicant will have to:

  • Provide information about the passport they want to renew;
  • Choose whether to apply for a passport book or passport card or both;
  • Enter proposed travel dates;
  • Upload a digital photo;
  • “Sign” the application; and
  • Make the required payment by credit or debit card

Applicants can enroll to receive email updates regarding their applications.

Those not eligible to apply online may renew by mail if they meet the eligibility criteria. Those not eligible to renew by mail (such as children) must renew in person.

The State Department estimates that 5 million people will be eligible to use this new online service annually. Last year, a record 24 million passports were issued. The State Department hopes to continue to expand the online service to further optimize the passport renewal process.

Jackson Lewis P.C. © 2024
For more on Passport Renewal, visit the NLR Immigration section.

Unlocking the Benefits of U.S. Citizenship

Each year, on Sept. 17, Americans celebrate Constitution and Citizenship Day. While there are many paths to citizenship – born in the U.S. or a U.S. territory, born abroad to U.S. citizens or naturalized – we all enjoy the same advantages, and equally important responsibilities. As we reflect on these responsibilities of citizenship and what it means to be a U.S. citizen, we also explore the numerous benefits and incredible opportunities that U.S. citizenship has to offer.

Benefits of U.S. citizenship

Visa-free travel

There are so many advantages when it comes to travel and the ease of travel when you’re a U.S. citizen. For example, you don’t need to prove potentially every time that you intend to make the United States your home. Permanent residents are required to show roots and ties to the U.S., and that they want to be a permanent resident and make the United States their permanent home. In addition, for lawful permanent residents, additional travel documents may be needed if you have long trips outside the U.S. By being a U.S. citizen, those requirements are no longer necessary.

Traveling with a U.S. passport allows for assistance from the government when abroad, as well as possession of one of the most travel-friendly statuses available today. U.S. passport holders can travel to certain countries without a visa. Being a U.S. citizen and having a U.S. passport opens many doors and removes a lot of visa requirements and other challenges when traveling to other countries.

The right to vote 

The Constitution and laws of the United States grant numerous rights exclusively to citizens, with one of the most fundamental being the right to participate in federal elections. This right is particularly significant when compared to many countries where citizens lack a voice in their government and cannot effectively communicate their values and what’s important to them by voting. In contrast, U.S. citizens have the power to influence the nation’s future by voting for representatives and leaders who align with their values and priorities.

Keep the family together

U.S. citizenship provides a strong safeguard against family separation with the privilege of helping immediate relatives, such as a spouse, parents and unmarried children, to obtain permanent residency.

Federal employment opportunities

Most jobs within government agencies require U.S. citizenship, so becoming eligible for federal job opportunities can be a significant public service professional opportunity, including running for office to become an elected official.

Access to federal benefits 

U.S. citizens are eligible for certain federal scholarships and grants and access to federal public benefits for basic needs, including Social Security benefits, Medicare and Medicaid. Citizens are also eligible for government-sponsored legal aid, which provides free or low-cost legal assistance to ensure all citizens have access to justice regardless of their financial situation.

©2024 Berry Appleman & Leiden. All Rights Reserved.
For more news on U.S. Citizenship for Immigrants, visit the NLR Immigration section.

October 2024 Visa Bulletin – New Fiscal Year, Mostly the Same Old Story

The State Department has published the much-anticipated October Visa Bulletin, the first issue of Fiscal Year 2025. Although the new year brings a brand new allotment of visa numbers in all categories, not much has changed since last month, with one exception in the All Countries category.

Below is a summary that includes Final Action Dates and changes from the previous month, but first – some background if you’re new to these blog posts. If you’re an old hand at the Visa Bulletin, feel free to skip the next paragraph.

The Visa Bulletin is released monthly by the US Department of State (in collaboration with US Citizenship and Immigration Services). If your priority date (that is, the date you got a place on the waiting list) is earlier than the cutoff date listed in the Bulletin for your nationality and category, that means a visa number is available for you that month. That, in turn, means you can submit your DS-260 immigrant visa application (if you’re applying at a US embassy abroad) or your I-485 adjustment of status application (if you’re applying with USCIS). If you already submitted that final step and your category then retrogressed, it means the embassy or USCIS can now approve your application because a visa number is again available.

Now for the October VB –

There are few changes from September for China:

  • EB-1 progresses 1 week to November 8, 2022m and EB-2 3 weeks to March 22, 2020
  • EB-3 Professionals retrogresses 5 months to April 1, 2020
  • EB-3 Other Workers stays stalled at January 1, 2017

Likewise, limited movement for India:

  • EB-1 remains stuck at February 1, 2022, and EB-2 at July 15, 2012
  • EB-3 Professionals and EB-3 Other Workers both advance 10 days to November 1, 2012

For All Other Countries, no changes except one dramatic one for EB-3:

  • EB-1 remains current
  • EB-2 remains stalled at March 15, 2023
  • EB-3 Professionals leaps almost 2 years, to November 15, 2022, making up last month’s retrogression of 1 year and gaining almost another year
  • EB-3 Other Workers stays stuck at January 1, 2020

NOTE 1: USCIS will accept I-485 applications in October based on the Department of State’s more favorable Dates for Filing chart, which allows from 2 months to 1 year of additional filing time depending on nationality and category:

  • Chinese nationals gain almost 2 months to file in EB‑1; a little over 6 months in EB-2; 7.5 months in EB‑3 Professionals; and 1 year in EB-3 Other Workers.
  • Indian nationals gain 2.5 months in EB-1; 5.5 months in EB-2; a little over 7 months in EB-3 Professionals; and 7 months in EB-3 Other Workers.
  • Nationals of all other countries may file their I-485s in advance of their priority dates being current by 4.5 months in EB-2; 3.5 months in EB-3 Professionals; and 5.75 months in EB-3 Other Workers.

NOTE 2: The Dates for Filing chart applies only to I-485 applications with USCIS. Immigrant visa applications with US embassies are always based on the Final Action Dates chart.

*Carol Schlenker also contributed to this article

Copyright © 2024, Hunton Andrews Kurth LLP. All Rights Reserved.
For more news on the October 2024 Visa Bulletin, visit the NLR Immigration section.

USCIS Improvements Cut Naturalization Processing Time

USCIS is processing naturalization cases faster than they have in years, and the agency is managing to cut down on its naturalization backlog. Given the current average timing, eligible green card holders who applied early in the summer 2024 might be sworn in in time to vote in the upcoming November elections.

Of course, field offices vary in processing times, but USCIS stated it was effectively eliminating the net backlog of naturalization applications and reducing the median processing time from 10.5 months to as little as five months. This is a 50 percent drop in processing time since 2022, achieving the agency’s longstanding goal and significantly reducing waiting times for most individuals seeking U.S. citizenship. Naturalization has always been a target of note in the agency’s backlog reduction effort. This was achieved by increasing capacity, improving technology, and expanding staffing.

Naturalization cases often increase ahead of elections. Voting is not the only personal benefit of citizenship. Immigrants who become U.S. citizens may also serve on juries, travel on a U.S. passport, bring family members to the U.S. more easily, apply for certain federal jobs, run for federal office, become eligible for certain federal grants, scholarships and benefits, and, importantly, have the right to remain in the U.S. that cannot be taken away. Beyond that, findings show that naturalized citizens have higher employment rates and earn between 50 and 70 percent more than noncitizens. Increasing the number of citizens also helps the economy in general. It leads to an increase in tax revenue and greater home ownership.

When President Joe Biden came into office, he issued an executive order to reduce naturalization barriers to strengthen the integration of new Americans. About 100,300 naturalization petitions were denied in FY 2023, a 10 percent drop from the 111,600 petitions denied in FY 2022. The Biden Administration also made the naturalization application shorter and, while it raised the naturalization fee, a number of discounts are available.

Eligibility requirements for naturalization include age, continuous residence, physical presence, jurisdiction, knowledge of U.S. history, civics, and English, and good moral character.

Jackson Lewis P.C. © 2024
For more on USCIS, visit the NLR Immigration section

You Are Sponsoring a Foreign National Employee for Permanent Residency, Can You Clawback Some of the Fees?

Companies usually hire a foreign national who requires visa sponsorship because they cannot find a U.S. worker with those skill sets, which is frequently in the STEM fields. However, visa sponsorship comes with significant costs to the employer. Employers may be able to recover a portion of the immigration sponsorship fees by implementing what are called “clawback” provisions into their employment agreements. Clawback provisions are terms in the employment agreements that, in the event of a resignation by the employee before a certain date, require the employee to reimburse the employer for a portion of the costs or fees associated with his or her visa sponsorship.

Not All Visa Fees Can Be Clawed Back

But first, it’s important to understand which sponsorship fees and costs are potentially recoverable and which are prohibited from being “clawed back.”

  • H-1B Petition: Because these visas have a prevailing wage set by the U.S. Department of Labor (DOL) a H-1B employer may not clawback any attorney fees or government filing fees used to obtain the H-1B petition approval by U.S. Citizenship & Immigration Services (USCIS).
  • Other Visas: The same restriction applies to the Australian E-3 visa and the Singapore/Chile H-1B1 visas as well as the H-2A, H-2B, and J-1 visas.
  • PERM Labor Certification Sponsorship for Permanent Residency: PERM Is the most common method for an employer to sponsor a foreign national employee for permanent residency (green card). It is done by conducting recruitment and proving to DOL that no qualified U.S. worker applied for the position. An employer is required to pay for all of the fees and costs associated with the PERM process.
  • I-140 Immigrant Petition: After DOL certifies the PERM application and agrees that no qualified U.S. worker is available, the employer must file an I-140 immigrant petition with USCIS. The attorney fees and costs for the I-140 may be clawed back. The purpose of the I-140 immigrant petition is for the employer to prove to USCIS that the foreign national has the required education, experience and special skills outlined in the PERM filing with DOL. In addition, the I-140 includes financial documents showing that the employer has the ability to pay the offered wage.
  • I-485 Adjustment of Status to Permanent Resident filing: The employer may clawback the fees and costs associated with the I-485 adjustment of status application (green card).

Practice Pointers

  • Still At Will: The clawback provisions should be in writing. It should also indicate that the employment is still at will, if applicable.
  • Final Paycheck: The majority of states, including California, do not allow an employer to deduct anything from a final paycheck without the express consent of the employee. This includes fees and costs pursuant to the clawback provision.
  • Deterrence: Given that an employer cannot clawback from the final paycheck and suing a former employee to collect the amount in controversy is not always practical, a clawback provision can be used as a deterrence for early departure.

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Copyright © 2024, Sheppard Mullin Richter & Hampton LLP.