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

US Department of State Announces Annual Limit Reached in EB-5 Unreserved Category

The U.S. State Department and U.S. Citizenship and Immigration Services announced that they have issued all legally available visas in the unreserved EB-5 Immigrant Investor Program categories for Fiscal Year 2024. Embassies and consulates have been directed to not issue immigrant visas in these categories until the new fiscal year (FY 2025) starts on Oct. 1, 2024.

As discussed in our recent blog post on EB-5 filing strategies, a total of approximately 140,000 immigrant visas are available every fiscal year for employment-based immigrant visas, including the EB-1, EB-2, EB-3, EB-4, and EB-5 categories. Of the 140,000 immigrant visas available annually, the government allocates approximately 10,000 to the EB-5 investor visa program. The visas are also subject to per-country visa quotas. The Immigration and Nationality Act sets the annual limit for EB-5 visas at 7.1% of the worldwide employment limit, of which 68% is available for unreserved visa categories (C5, T5, I5, R5, RU, NU). Additionally, the EB-5 Reform and Integrity Act of 2022 makes unused EB-5 reserved visas from FY 2022 available in the EB-5 unreserved categories for FY 2024.

United States | Registration Selection Complete for FY2025 H-1B Second Lottery

TodayUSCIS announced it has reached a sufficient number of registrations for the second H-1B lottery for fiscal year 2025 and has notified all prospective H-1B petitioners with selected registrations that they are eligible to file.

Key Points:

  • Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2025, and only for the beneficiary named in the applicable selected registration notice.
  • A second selection for the master’s cap was not conducted because enough master’s cap registrations had already been selected and sufficient petitions were received.
  • Registration selection only pertains to eligibility to file an H-1B cap-subject petition. Petitioners filing H-1B cap-subject petitions must still establish eligibility for petition approval based on existing statutory and regulatory requirements.

Additional Information: An H-1B cap-subject petition must be properly filed at the correct filing location or online at my.uscis.gov and within the filing period indicated on the relevant selection notice. The period for filing the H-1B cap-subject petition will be at least 90 days. Petitioners must include a copy of the applicable selection notice with the FY 2025 H-1B cap-subject petition.

USCIS published a final rule that increased fees required for most immigration applications and petitions on Jan. 31, 2024. The new fees are effective as of April 1, 2024, and petitions with incorrect fees will be rejected. Also, as of April 1, 2024, only the new edition of Form I-129, Petition for a Nonimmigrant Worker, will be accepted.

The increased filing fee for Form I-907, Request for Premium Processing Service, is effective as of Feb. 26, 2024. I-907 forms postmarked on or after Feb. 26, 2024, with the incorrect fee will be rejected and fees returned.

Biden Administration Changes Green Card Process for Mixed-Status Families

To improve immigration processes and provide additional support to immigrants, the Biden administration has announced several policy changes.

Starting Aug. 19, 2024, unauthorized spouses and children of U.S. citizens who have been in the United States for at least 10 years can apply for parole in place, allowing these individuals to obtain green cards without having to leave the country. If approved, eligible family members will have three years to apply for permanent residency while being granted work authorization. By enabling family members to adjust their immigration status from within the United States, rather than traveling abroad and potentially facing a 10-year reentry ban, this change may significantly simplify the permanent residency process for eligible individuals.

The U.S. Department of State has also revised its guidance to favor immigrants with U.S. college degrees and job offers. The updated guidelines clarify that it is in the public interest for these individuals, including those with work authorization from the Deferred Action for Childhood Arrivals (DACA) program, to utilize their degrees in the United States. Consular officers will now have the discretion to weigh an applicant’s college degree and job offer favorably when deciding whether to grant a waiver to a visa applicant who would otherwise be ineligible. These adjustments aim to expedite the work visa process for college graduates.

Additionally, the Biden administration announced plans to double the locations for the Executive Office Immigration Review (EOIR), a program that provides volunteer attorneys in immigration courts for those without legal representation. Currently operating in San Francisco, Chicago, and New Orleans, the EOIR will expand to Maryland, New York City, and Atlanta by the end of the fiscal year. This expansion seeks to ensure fair representation for immigrants during legal proceedings. The EOIR has issued a call for attorneys to provide pro bono support to the program.

To expand opportunities for Latino communities, the Biden administration also announced that the U.S. Department of Education will propose to expand federal outreach programs targeting beneficiaries of the DACA program. Known as the Trio Program, this initiative aims to assist individuals from disadvantaged backgrounds as they transition from high school to college. The Department of Education’s proposal would extend the Trio Program to reach an additional 50,000 individuals.

United States | H-1B, AOS, Schedule A and Other Regulatory Agenda Updates

According to the recent publication of the Spring 2024 regulatory agenda, the Biden administration has the H-1B modernization rule, adjustment of status proposal and seasonal/temporary worker regulations targeted for publication by the end of 2024. The next step toward Schedule A reform will occur this August.

  • H-1B modernization: The Department of Homeland Security proposed to amend regulations governing H-1B specialty occupations and certain F-1 students. DHS accepted comments on its wide-ranging proposed rule until Dec. 22, 2023 and finalized and implemented H-1B registration selection provisions in April 2024. The agency says it “continues to consider the suggestions made in public comments received as they relate to the other proposed provisions discussed in the Oct. 23, 2023 NPRM, and intends to finalize the remaining provisions in one or more actions.”
  • Lawful permanent residence (adjustment of status proposal): To reduce processing times, improve agency partnerships and promote efficiencies in visa availability, DHS plans to amend regulations governing adjustment of status to lawful permanent residence in the U.S. including permitting concurrent filing of a visa petition and the application for AOS for the employment-based fourth preference category. The target date for publishing the proposal is now August 2024. After publication, there will be a public comment period.
  • Schedule A: The Department of Labor is considering updating Schedule A and opened a Request for Information period on Dec. 21, 2023 that was extended through May 13, 2024. During this period, the public provided input on whether Schedule A served as an effective tool for addressing current labor shortages, and how DOL can create a timely, coherent, and transparent methodology for identifying science, technology, engineering and mathematics and other occupations that are experiencing labor shortages while ensuring the employment of foreign nationals does not displace U.S. workers or adversely affect their wages and working conditions. According to the regulatory agenda, DOL aims to complete analysis of the comments in August 2024.
  • H-2 modernization: DHS published a proposal for modernizing H-2 programs on Sept. 20, 2023 intended to reduce inefficiencies, enhance pay protections and address “aspects of the program that may unintentionally result in exploitation or other abuse of persons seeking to come to this country as H-2A and H-2B workers.” Comments were accepted through November 2023 and final action is targeted for November 2024.
  • Nonimmigrant workers: DHS plans to propose amendments to regulations governing certain nonimmigrant workers including updating the employment authorization rules regarding dependent spouses of certain nonimmigrants; increasing flexibilities for certain nonimmigrant workers and modernizing policies and procedures for employment authorization documents. The targeted publication date is now January 2025.
  • Immigrant worker reforms: DHS also plans to propose to amend regulations governing employment-based immigrant petitions in the first, second and third preference classifications. According to the regulatory agenda, proposed rule amendments would include updating and modernizing provisions governing extraordinary ability and outstanding professors and researchers; clarifying evidentiary requirements for first preference classifications, second preference national interest waiver classifications and physicians of national and international renown; ensuring the integrity of the I-140 program and correcting errors and omissions. Publication of the proposed rule is now targeted for June 2025.

BAL Analysis: While these regulations would have a significant impact on immigration programs, they are at different stages in the rulemaking process, and policies are still being formulated. Proposed regulations are subject to a public notice-and-comment period, during which members of the public may submit feedback. BAL continues to monitor progress on the regulatory agenda and will provide clients with updates on individual regulations as they move through the rulemaking process.

United States | State Department Notes Visa Delays at US Embassy Paris

The State Department’s global visa wait times for Paris continue to grow and substantial visa processing delays are expected through mid-September due to the 2024 Paris Olympic and Paralympic Games and D-Day 80th anniversary celebrations.

Key Points:

  • The Olympics will take place in Paris from July 26 to Aug. 11 and the Paralympics will take place from Aug. 28 to Sept. 8.
  • Travelers are encouraged to regularly check the U.S. Embassy special events page for France before and during their stay.
  • The most current visa appointment wait times for the U.S. Embassy Paris can be found here.

Additional Information: Individuals applying for a U.S. visa in Paris should expect delays through at least mid-September 2024. The U.S. Embassy Paris will primarily be providing American citizen services during these events due to the embassy’s location and the increased presence of U.S. citizens in Paris.

The State Department urged travelers in need of a new passport to have their passports renewed as soon as possible if traveling to France and Europe this summer. The French government has launched a new consulate platform to help streamline the visa application process for the 2024 Paris Olympic and Paralympic Games. While U.S. citizens generally do not need a visa to enter France, travelers can complete a short online questionnaire to determine if they require a visa.

European Union | Latest Immigration Updates

The adopted revision to the 2011 single-permit directive has been published in the Official Journal of the European Union, and the EU Council has temporarily suspended certain elements of EU law that regulate visa issuance to Ethiopian nationals.

Key Points:

  • The single-permit directive enters into force on May 21, 2024, and EU member states have until May 21, 2026, to implement the terms of the directive domestically.
    •  Member states will maintain the ability to decide which and how many third-country workers to admit to their labor market.
  • For Ethiopian nationals, the standard visa-processing period has been changed to 45 calendar days instead of 15. In addition, EU member states will no longer be able to waive certain requirements when issuing visas to Ethiopian nationals, including evidence that must be submitted to issue multiple-entry visas and visa fees for holders of diplomatic and service passports.

Background: As BAL previously reported, the directive currently in place was designed to attract additional skills and talent to the EU to address shortcomings within the legal migration system, provide an application process for EU countries to issue a single permit and establish common rights for workers from third countries. The revised law shortens the application procedure for a permit to reside for the purpose of work in a member state’s territory and aims to strengthen the rights of third-country workers by allowing a change of employer and a limited period of unemployment. The new agreement is part of the “skills and talent” package, which addresses shortcomings in legal migration policy and aims to attract greater foreign skilled talent.

The decision to tighten visa guidelines for Ethiopia is in response to an assessment by the EU Commission, which found that Ethiopian authorities have not fully cooperated with officials regarding readmission requests and difficulties persist in issuing emergency travel documents. The commission cited the organization of both voluntary and non-voluntary return operations as a determining factor in altering Ethiopia’s visa privileges within the European Union.

BAL Analysis: The single-permit directive is directed at non-EU nationals working in the EU and aims to create an environment where these individuals are treated equally regarding their working conditions, social security and tax benefits, and recognizing their unique qualifications.

United States | Labor Department Posts Final H-2A Regulation

The U.S. Department of Labor announced a final H-2A regulation Friday, saying the rule was crafted to target the “vulnerability and abuses experienced by workers under the H-2A program that undermine fair labor standards for all farmworkers in the U.S.”

The H-2A program allows employers to hire temporary agricultural workers when there is a lack of “able, willing and qualified” U.S. workers. The new rule includes sections:

  • Adding new protections for worker self-advocacy.
  • Clarifying “for cause” termination.
  • Making foreign labor recruitment more transparent.
  • Ensuring timely wage changes for H-2A workers.
  • Improving transportation safety.
  • Preventing labor exploitation and human trafficking.
  • Ensuring employer accountability.

The final rule is scheduled to take effect on June 28; however, H-2A applications filed before Aug. 28, will be processed according to federal regulations as is in effect as of June 27. Applications submitted on or after Aug. 29, 2024, will be processed in accordance with the provisions of the new rule.

Additional Information: The 600-page rule is scheduled to be published in the Federal Register on Monday, April 29. A pre-publication version is available here.

Fee Hikes Give U.S. Employers Chance to Rethink Immigration Strategies

The cost of running an immigration program at a U.S. company just went up — a lot.

On Jan. 31, U.S. Citizenship and Immigration Services published a final regulation to raise immigration filing fees — and high-skilled categories saw some of the biggest increases. On April 1, the fee for an H-1B petition increased from $460 to $780 (70%), and the fee for an L-1 intracompany transfer petition increased from $460 to $1,385 (201%). All of that is before a new $600 Asylum Program Fee ($300 for small employers) is added on for each employment-based nonimmigrant or immigrant filing. Analysis from the BAL Government Strategies team shows that a typical small- or medium-sized company may see the amount they spend on filing fees more than double.

None of this is good news.

At the same time, the fee increases present an opportunity for companies to take stock of their immigration programs and reassess whether they are doing everything they can to take advantage of policy improvements that the Biden administration has made.

The fee increases are the first since 2016, and USCIS has said it will put the additional revenue to good use — not only by helping them meet the challenge of expanded humanitarian programs but also by improving processing times and reducing backlogs for employment-based filings. While the business community was clear that it would have liked to see USCIS implement additional efficiencies before raising fees, the administration has shown good faith by working to streamline programs with its current funding level. Consider:

  • Improvements to the H-1B program: Just days after it published the regulation to raise fees, USCIS published a separate regulation to overhaul the H-1B registration and selection process. The big change is a switch from a petitioner- to a beneficiary-centric lottery, so that each H-1B beneficiary may be selected only once, no matter how many registrations are submitted on his or her behalf. This change is designed to eliminate incentives for bad actors to submit multiple H-1B registrations for the same individual — and has the potential to reduce the overall number of registrations and boost the H-1B selection rate. The change enjoys broad support in the business community. So do the introduction of online H-1B filings and a new pilot program that allows some H-1B holders to renew their visas in the U.S. without going abroad.
  • Extended employment authorization: In September 2023, USCIS increased the maximum validity of Employment Authorization Documents (along with Advance Parole travel documents) to five years for employees with pending green card applications. This change did not draw as much attention as the H-1B overhaul but has proved to be a boon to employers. Previously, green card applicants had to renew their employment authorization every two years. The longer validity saves not only time and money but also adds predictability. Improved EAD processing times are an additional benefit.
  • Flexibility in the green card process: With the labor certification process (PERM) becoming increasingly difficult, employers continue to turn toward national interest waivers as a green card strategy. This trend is due in part to the increased difficulty of the PERM process when employers have had layoffs. The administration published new guidance on national interest waivers for EB-2 visas in January 2022 and made EB-2 visas a priority in an executive order on intelligence published last fall. The Department of Labor has also asked for public input on whether to revise its list of Schedule A job classifications that do not require labor certification. This list has not been updated since 2004.
  • Improved visa processing abroad: The U.S. State Department issued more than 10.4 million nonimmigrant visas in the last fiscal year. This figure was nearly a record and the highest total since 2015. It also highlights a marked turnaround in visa processing efficiency at U.S. embassies in consulates following years of reduced staffing and delayed wait times. State Department fees also went up last spring. And while the State Department and USCIS are different agencies with different challenges, the success in improving visa processing abroad is consistent with the Biden administration’s broader overall efforts to improve immigration services.

Understandably, we have heard plenty at BAL from employers frustrated with how dramatically fees increased. What we have not heard, however, is that employers plan on dramatically cutting back their immigration programs. This is good news — and not only because it means companies will continue to recruit top workers to help keep them competitive.

Despite higher fees, there is ample evidence that it is a good idea to invest in foreign workers now, at a time of generally favorable policies. Take the H-1B program as one example. The H-1B registration fee has increased from $10 to $215 for next year’s cap registration, which gave employers an incentive to put eligible employees in the lottery this year if they were able to do so. On top of that, for beneficiaries that were not selected, employers have more favorable options for H-1B alternatives now than they previously did. The administration has added new qualifying fields of study to its STEM Designated Degree Program List, making more recent graduates eligible for extended Optional Practical Training. Officials also provided clarifying guidance on O-1 “extraordinary ability” visa criteria, making this category an increasingly common option.

None of the administration’s immigration programs are ensured to continue under future administrations. In the current political environment, there is no telling how long they will last.

Donald Trump has emerged as the Republican Party’s presumptive nominee for president. Whatever you think of Trump’s politics, it is plainly true that when he was in office, it was harder to recruit and retain high-skilled foreign workers. H-1B denial rates skyrocketed and processing backlogs ballooned at understaffed agencies. COVID-19 only made the problems worse.

Nobody knows what Trump may do if he wins this year’s election, but it certainly seems unlikely he would decrease immigration fees. Employers could be stuck with higher rates for reduced services.

The adage “never let a crisis go to waste” is instructive as employers face higher costs and uncertainty about the future of favorable immigration policies. While no one enjoys paying higher fees, employers should review their immigration strategies to take advantage of easier processes now before it’s too late.

Lawsuit Challenges New USCIS Fee Rule

Significant increases to U.S. Citizenship and Immigration Services (“USCIS”) filing fees are set to go into effect on April 1, 2024. However, a lawsuit filed in U.S. District Court for the District of Colorado may delay that implementation. The plaintiffs in the lawsuit, the ITServe Alliance (a group that represents technology companies), the American Immigrant Investor Alliance, and a Canadian investor, have asked for a preliminary injunction to stop the planned fee increases.

As previously reported, the fee rule would require employers to pay 70% more for H-1B petitions, 201% more for L-1 petitions, and 129% more for individuals on O-1 petitions. One of the more controversial aspects of the new rule requires a $600 Asylum Program Fee to be charged to certain petitioners who are filing an I-129 Petition for Nonimmigrant Worker or an I-140 Immigrant Petition for Alien Workers, which are common forms employers use when filing employment-based nonimmigrant and immigrant visa petitions.

The lawsuit argues three things:

1. The fee rule was promulgated without following proper rule making procedures;

2. The fee rule doubles immigrant investor fees through the EB-5 program in violation of law. Specifically, the USCIS imposed new fees on immigrant investors and regional centers without completing the fee study that Congress required as part of the EB-5 Reform and Integrity Act of 2022; and

3. The asylum-related fee “arbitrarily and without legal justification” shifts the burden to certain employers to fund the government’s handling of asylum cases.

The full complaint can be accessed here.

As of today, the fee increases are scheduled to go into effect on April 1.