Other Alternatives to H-1B Visa

 

The initial H-1B random selection process was completed in late March.  USCIS has not officially released the number of H-1B registrations and selection total.  However, based on unofficial estimates, the number of H-1B applicants continue to be sky-high.  This year, USCIS implemented a new policy which prohibits the entering of multiple registrations for the same employee, which should have improved the chances for selection.  Still, based on statistics gathered so far, the overall selection rate is still undesirable.

For the unselected foreign students and workers, they must now face the harsh reality of their future. This article presents some alternatives that they may consider based on their background and qualifications:

Practical Training Employment

For some foreign students with a STEM degree, continue working with their STEM OPT employment authorization may be the best option. While waiting for the next year's H-1B lottery, they may continue working for their employers.  They must work for an employer who is e-Verified.  Some universities offer internship an co-op employment opportunities.  Enrolled F-1 students may participate in these programs through Curriculum Practical Training (CPT) authorization.

Extraordinary Ability O-1 Work Visa

For individuals with outstanding qualifications or a strong STEM background, the O-1 extraordinary ability visa may be an option. The O-1 visa requires substantial proof of one's qualifications and achievements. O-1 is a temporary work visa approved for up to 3 years each time, and can be extended indefinitely.  Please see our previous article for details of the O-1 visa.

Employer-sponsored Green Card

Rather than relying only on H-1B, one may also consider applying for their green card directly, if their employer is ready to start the application process. There is no requirement that one must be in H-1B status first before applying for their permanent resident status.  For applicants born in countries with available visa numbers, their green cards could be approved relatively quickly.  However, they must maintain their lawful status until they are able to submit their final green card application.

Self-Petitioned Green Card

Without sponsorship by a U.S. employer, a foreign worker may also file a self-petition for their green card if qualified.  For example, they may apply for a green card under the EB-2 visa category with a National Interest Waiver (NIW).  The applicant must prove that their immigration will serve an important interest of the United States.  USCIS has encouraged qualified individuals with a strong STEM background to apply.  Please see our previous article for details of an NIW application. 

EB-1A Extraordinary Ability petition can also be filed by a foreign applicant without employer sponsorship.  It is similar to the O-1 work visa with even more stringent requirements.  One must submit evidence to demonstrate that they have risen to the very top of their field of endeavor. Proof of sustainted national or international acclaim is also required.  Not only scientists or researchers can submit EB-1A petitions, professionals in other fields such as art and design, business, education, health care, engineering, etc., may also qualify.  When in doubt, one should obtain a professional evaluation of their qualifications. 

E-2 Visa

For entrepreneurs who are interested in starting up a small business in the U.S., the E-2 Treaty Investor visa may be the answer.  Their spouses and children may also live, work and study in the U.S. To apply for an E-2 visa, one's country of citizenship (not birth) must have a commerce treaty with the U.S.  Most European and Asian countries are eligible.  Please see our previous article for details. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Deferred Enforced Departure (DED) Authorized for Palestinians

On Feb. 14, 2024, President Biden signed a memorandum authorizing Palestinians 18 months of Deferred Enforced Departure and work authorization.

May 2024 Visa Bulletin: Family Categories Advance

The State Department has released the May visa bulletin. Priority dates for family-sponsored cases advance significantly in almost all categories, while employment-based categories remain unchanged. 

In May, USCIS will accept adjustment of status (I-485 application) based on filing dates for family-sponsored cases and final action dates for employment-based cases. 

AD: Dates for Final Action (Green Card Approval)  

FD: Dates for Filing Applications Only

Family-Sponsored		Other Countries	China	India	Mexico	Philippines
F1	AD	07/08/2015	07/08/2015	07/08/2015	10/15/2001	03/01/2012
	FD	09/01/2017	09/01/2017	09/01/2017	04/01/2005	04/22/2015
F2A	AD	06/01/2021	06/01/2021	06/01/2021	11/08/2020	06/01/2021
	FD	09/01/2023	09/01/2023	09/01/2023	09/01/2023	09/01/2023
F2B	AD	04/01/2016	04/01/2016	04/01/2016	03/01/2004	10/22/2011
	FD	01/01/2017	01/01/2017	01/01/2017	08/01/2004	10/01/2013
F3	AD	01/01/2010	01/01/2010	01/01/2010	07/22/1999	08/01/2002
	FD	06/01/2010	06/01/2010	06/01/2010	06/15/2001	11/08/2003
F4	AD	07/22/2007	07/22/2007	01/15/2006	01/22/2001	09/08/2003
	FD	03/01/2008	03/01/2008	06/15/2006	04/22/2001	06/01/2004

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 “A” preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 “B” Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)
4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)

Employment-based		Other Countries	China	India	Mexico	Philippines
EB-1	AD	C	09/01/2022	03/01/2021	C	C
	FD	C	01/01/2023	04/01/2021	C	C
EB-2	AD	01/15/2023	02/01/2020	04/15/2012	01/15/2023	01/15/2023
	FD	02/15/2023	06/01/2020	05/15/2012	02/15/2023	02/15/2023
EB-3	AD	11/22/2022	09/01/2020	08/15/2012	11/22/2022	11/22/2022
	FD	02/01/2023	07/01/2021	09/15/2012	02/01/2023	01/01/2023
Other Workers	AD	10/08/2020	01/01/2017	08/15/2012	10/08/2020	05/01/2020
	FD	12/15/2020	06/01/2017	09/15/2012	12/15/2020	05/15/2020
EB-4	AD	11/01/2020	11/01/2020	11/01/2020	11/01/2020	11/01/2020
	FD	12/01/2020	12/01/2020	12/01/2020	12/01/2020	12/01/2020
EB-5	AD	C	12/15/2015*	12/01/2020*	C	C
	FD	C	01/01/2017	04/01/2022	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies' executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: “Special Immigrants” (Religious & others)

5th: Employment Creation (Investors)

*China and India EB-5 visa numbers for rural, high unemployment & infrastructure areas/projects are current.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Foreign Students Affected by School Loss of Accreditation

 

Foreign students studying or intending to study in the United States often navigate a complex landscape of regulations and requirements. Recently, significant changes have occurred that directly affect foreign students, particularly those enrolled in English language programs and STEM fields. 

On August 19, 2022, the U.S. Department of Education (ED) made a crucial announcement that has repercussions for students under the Accrediting Council for Independent Colleges and Schools (ACICS). Specifically, the federal government had formally terminated its recognition of ACICS as an accrediting agency for quality and compliance issues. Schools that were was granted accreditation through ACICS also lost their accredited status. Stratford University is one such example. 

Implications for English Language Study Programs

One immediate effect of the ED's decision is on English language study programs. The Accreditation of English Language Training Programs Act requires such programs to be accredited. With ACICS no longer recognized as an accrediting agency, students enrolled in English language programs at ACICS-accredited schools may face challenges. It's essential for affected students to communicate promptly with their Designated School Officials (DSOs) to understand how this decision impacts their status and immigration benefits applications.

Impact on STEM OPT Extension Program

Furthermore, the ED's decision impacts F-1 students applying for a 24-month STEM Optional Practical Training (OPT) extension. To qualify for this extension, students must have a degree from an accredited institution. Since ACICS accreditation is no longer recognized, F-1 students with degrees from ACICS-accredited institutions may face denials when applying for STEM OPT extensions. It's crucial for affected students to ensure they meet the accreditation requirements by seeking guidance from their DSOs and exploring alternative options.

Other Considerations

The consequences of ACICS's loss of recognition extend beyond English language programs and STEM OPT extensions. Degrees conferred by ACICS-accredited institutions after August 19, 2022, may not qualify for certain immigration benefits, such as the H-1B advanced degree exemption. Additionally, institutions solely accredited by ACICS may no longer qualify for H-1B cap exemptions or other fee exemptions.

Next Steps for Affected Students

Foreign students impacted by these changes must take proactive steps to safeguard their academic and immigration statuses. This may include exploring alternative institutions with recognized accreditations, understanding the implications for their specific circumstances, and seeking guidance from immigration advisors and DSOs.

In conclusion, the ED's decision to no longer recognize ACICS as an accrediting agency has significant implications for foreign students in the United States. It underscores the importance of staying informed, seeking guidance, and adapting to changes in the educational and immigration landscape.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS Extends EAD Renewal Period Up to 540 Days

 

USCIS has recently introduced a temporary final rule (TFR) that brings significant changes to the renewal process for Employment Authorization Documents (EADs).

Extended Renewal Period:

Effective from April 8, 2024, the temporary final rule extends the automatic extension period for expiring EADs. Previously set at up to 180 days, this extension period is now increased to up to 540 days from the expiration date stated on the EAD. This extension provides vital support to individuals with pending EAD renewal applications, aiming to prevent gaps in employment authorization and documentation.

Key Changes and Eligibility:

The extended renewal period applies to applicants who timely and properly filed their Form I-765, Application for Employment Authorization, on or after October 27, 2023, which is still pending.

It also applies to other eligible applicants who file EAD renewal applications between April 8, 2024 and September 30, 2025.

Eligibility EAD Categories for Automatic Extension:

• Noncitizens admitted as refugees (A03)
• Noncitizens granted asylum (A05)
• Noncitizens admitted as parents or dependent children of noncitizens granted permanent residence under section 101(a)(27)(I) of the INA
• Noncitizens admitted to the United States as citizens of the Federated States of
Micronesia, the Republic of the Marshall Islands, or the Republic of Palau pursuant to agreements between the United States and the former trust territories (A08)
• Noncitizens granted withholding of deportation or removal (A10)
• Noncitizens granted TPS, regardless of the employment authorization category on their current EADs (A12)
• Noncitizen spouses of E-1/2/3 nonimmigrants (Treaty Trader/Investor/Australian Specialty Worker) (A17)
• Noncitizen spouses of L-1 nonimmigrants (Intracompany Transferees) (A18)
• Noncitizens who have properly filed applications for TPS and who have been deemed prima facie eligible for TPS and have received an EAD as a “temporary treatment benefit” (C19)
• Noncitizens who have properly filed applications for asylum and withholding of deportation or removal (C08)
• Noncitizens who have filed applications for adjustment of status to lawful permanent resident (C09)
• Noncitizens who have filed applications for suspension of deportation, cancellation of removal pursuant, or special rule cancellation of removal (C10)
• Noncitizens who have filed applications for creation of record of lawful admission for permanent residence (C16)
• Noncitizens who have properly filed legalization applications (C20) & (C22)
• Noncitizens who have filed applications for adjustment of status pursuant to the Legal Immigration Family Equity Act (C24)
• Certain noncitizen spouses (H-4) of H-1B nonimmigrants with an unexpired Form I-94 showing H-4 nonimmigrant status (C26)
• Noncitizens who are the principal beneficiaries or derivative children of approved Violence Against Women Act (VAWA) (C31).

Proof of Eligibillity:

Eligible renewal applicants can present their qualifying EAD and Form I-797C receipt notice indicating the same employment eligibility category as their underlying EAD to prove automatic extension.

For EAD renewal applications filed after the end of the 540-day filing period established by the rule, the automatic extension period will revert to up to 180 days.

USCIS previously had adopted a 540-day automatic extension period. By reusing this extended extension period, USCIS aims to prevent hundreds of thousands of EAD renewal applicants from facing lapses in employment authorization and documentation through no fault of their own.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Immigration Medical Exam Valid Indefinitely Under New Policy

 

Recently, U.S. Citizenship and Immigration Services (USCIS) released policy guidance that significantly alters the validity period of Form I-693, the Report of Immigration Medical Examination and Vaccination Record.

New Policy: Effective April 4, 2024, USCIS has implemented a new policy regarding the validity period of Form I-693: Forms I-693 completed and signed by a civil surgeon on or after November 1, 2023, do not expire. This means that they retain their evidentiary value indefinitely, providing assurance to applicants and streamlining the immigration process.

USCIS collaborated with the Centers for Disease Control and Prevention (CDC) to arrive at this decision.

Previous Policy: For forms completed before November 1, 2023, the prior policy remains in effect. These forms retain their evidentiary value for two years from the date of the civil surgeon's signature. However, certain exceptions apply, such as those for Operation Allies Welcome parolees.

USCIS Officer Discretion: Despite the validity of Form I-693, USCIS officers have the discretion to request additional evidence or a new medical examination if there are reasons to believe that the applicant's medical condition has changed or if the existing form does not accurately reflect their health status.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS Has Completed H-1B Lottery for FY 2025

 

Photo: Anna Tarazevich

On April 1st, USCIS announced that it has completed the H-1B lottery for FY 2025.   It means that USCIS has selected enough electronic registrations for unique beneficiaries to meet the regular H-1B visa quota of 65,000, plus the 20,000 cap for advanced degree holders.   This year, a new H-1B rule is in effect, and each qualified beneficiary is treated as one unique registration for random selection, regardless of how many employers have entered registrations for them.  

How do I know if I am selected? 

USCIS has released the selection results online through the employers online accounts.   "Selected" means the case was selected to file an H-1B cap petition.  "Not Selected" indicates the case is not eligible to file an H-1B cap petition.  However, in anticipation of a second lottery, USCIS has kept the unselected registrations in "Submitted" status for now.  It means that there may still be a chance for selection later this year.

What are the next steps if I am selected?

If your case was selected, you should work with your employer to submit a complete H-1B petition within the filing window.  The filing window for the initially selected cases are from April 1st to June 30.  Late filings will be rejected.  Similarly, use of outdated forms and failure to submit a legally sufficient H-1B petition will result in rejection or denial of the petition.  As for April 1st, USCIS has adjusted the filing fees for various immigration petitions, including the I-129 form for H-1B petitions.  The employer is now required to pay an additional asylum fee.  Further, starting April 1st, employers must use a new edition of the I-129 form. USCIS has also changed the filing locations of many petitions, allowing online filing of H-1B petitions for the first time.  

Will there be a second lottery this year?

If USCIS has not received sufficient number of H-1B petitions to meet the annual quota, it will conduct a 2nd or 3rd drawing to select applications for adjudications.  It is difficult to predict the chances for that to happen now, as there are several factors involved.  First, although USCIS has not formally released the number of H-1B registrations this year, the banning of muliple entries for the same employee should have greatly reduced the total number of eligible entries in the initial lottery.  It means that, compared to last year, most of the selected cases will actually be submitting H-1B petitions. (Inerestingly, USCIS appears to allow multiple employers to submit H-1B petitions for the same selected employee under the new rule, but this should not affect the counting of visa numbers.)  

Secondly, USCIS has implemented a new policy requiring an H-1B employer to prove that there is a bona fide job offer for the beneficiary. This may affect the number of H-1B filings and/or approvals, because some IT consulting firms may not be able to provide such proof if they do not have a client project for the H-1B employee.  Finally, there is always a percentage of cases that will drop out or be rejected for various reasons.  On balance, we are hopeful that there will be some unused H-1B visa numbers in the summer. 

Delays of Receipt Notices Expected

When USCIS receives a timely and properly filed H-1B cap subject petition, it will provide the petitioner and the attorney of record a Form I-797, Notice of Action, as proof of filing.  Because of the large volumes of H-1B cap filings each year, USCIS already advised the public that it expects some delays in the issuance of the I-797 receipt notices.  If delivery of the petition has been confirmed by the Post Office or delivery service, employers should not submit a second petition, as this will result in denial or revocation of both petitions.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Update of H-1B Cap Lottery Results

USCIS started to release selection results on 3/27, which was earlier than in previous years.  Selection results have continued to show up in the new H-1B registration portal through today, 3/30.  USCIS has twitted that selection results will continue to be released through Monday, 4/1.  However, the majority of selections should have been released today.  Applicants may check with their attorneys and employers to obtain updates of the selection results.  Based on our law firm's data and also anecdotal accounts, the overall selection rate this year hovers around 25%, with a lot better odds for advanced degree holders.  A second drawing may occur in the summer, if USCIS does not receive enough qualified H-1B petitions during the initial filing window through the end of June.  Stay tuned for further details. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Green card for Overseas Foreign Employees of U.S. Government

 

If you are a long-time foreign national employees of the U.S. Government abroad, there is a new way for you to apply for a U.S. green card.  A new law provides immigrant visas to certain overseas foreign national employees of the U.S. government, their family members, and their surviving spouses and children. 

Section 5104 of the National Defense Authorization Act (NDAA) for Fiscal Year 2024 addresses the immigration needs of certain foreign national employees of the U.S. government stationed overseas. It acknowledges their invaluable contributions and seeks to facilitate their integration into American society. 

This new law allocates up to 3,500 immigrant visas in FY 2024, and up to 3,000 immigrant visas in subsequent fiscal years, to qualifying employees of the U.S. Government abroad and their spouses and children, and the surviving spouses and children of certain deceased employees.  One requirement is that visa numbers are not otherwise available to these overseas employees under the Employment-Based Fourth (EB-4) preference category, which also allocates special immigrant visas for these employees.

Further, to qualify for these special immigrant visas, the foreign employees must have been employed by the U.S. Government abroad for at least 15 years. Further, the U.S. Department of State must have found that it is in the national interest to grant them visas.  Factors to consider include their length of Service,  their commitment and contribution to the U.S. interests, nature of employment, and whether they have been honorably discharged, etc.  

Family members, including their spouses and children, are also eligible for these special immigrant visas.  If an employee sacrificed their lives in the line of duty, their surviving family members are also eligible for these benefits. 

These special immigrants will be admitted via special GV visa codes, or GS in the case of surviving spouses and children.   Upon admission, these special immigrants are lawful permanent residents of the U.S.  As green card holders, they enjoy the regular benefits and privileges of U.S. permanent residents.  They are allowed to reside and legally work in the U.S. indefinitely. They may petition for their eligible family members.  They may also apply for American citizenship through the naturalization process after five years.

Unlike the regular EB visa preference category, allocation of special immigrant visas under NDAA is not subject to the per-country cap or controlled by the EB visa limits.  These special immigrant visas issued each year (up to 3,500 in FY 2024 and up to 3,000 in subsequent years) will be deducted from the number of diversity visas available in the following fiscal year.  

Section 5104 of the NDAA for Fiscal Year 2024 represents a pivotal step towards recognizing and supporting long-time U.S. foreign national employees and their families. By providing a pathway to immigrant visas, the provision acknowledges their invaluable contributions and offers tangible benefits that extend beyond service tenure. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

H-1B Cap Registration Deadline Extended; Results to be Released on 03/31/2024

 

    Photo:askhamdesign

Due to some system glitches and outstages, USCIS has decided to extend the initial registration deadline for FY 2025 H-1B cap from 03/22/2024 to noon EST 03/25/2024. Employers and their attorneys may still register H-1B applicants in the USCIS system till Monday. 

This year, USCIS launched new myUSCIS organizational accounts in the H-1B registration system, allowing multiple personnel within an organization, and their legal representatives, to collaborate on and prepare H-1B registrations. There has been intermittent system issues reported by users.  As a result, upon requests for employers and practitioners, USCIS has decided to extend the deadline till 03/25/2024.

However, USCIS still intends to release the lottery results by 03/31/2024. Results are typically released in form of status changes in an applicant's registration entry.  If seleced, an applicant's status is changed from "submitted" to "selected".  Applicants should keep close contact with their attorneys and employers to get updates of the lottery results.  Subsequent drawings are possible if the H-1B visa cap has not been reached. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS New Central NJ Field Office

 

Google Map Photo

Some applicants wonder why their immigration cases were transferred from Newark to another office in New Jersey. Last year, the USCIS has opened a new field office in Central New Jersey, located in Cranbury. According to USCIS, this strategic addition aims to better serve the growing needs of immigrants and applicants residing in the region.

For many years, USCIS has two field offices in New Jersey located in Newark and Cherry Hill (later moved to Mt. Laurel).  The Newark Field Office serves mostly applicants from north New Jersey, while the Mt. Laurel Field Office is designed to serve the communities in south New Jersey.  Over the years, as the population of the immigrant communities increases, the resources of these offices have been stretched to the limit, especially the Newark Field Office.  

New Jerseyans often argue exactly where the dividing line is between North and South New Jersey.  Because of its central location, Newark has had to handle extremely large number of immigration cases from applicants located in both North and South New Jersey.  The driving distance between Newark and Mt. Laurel is about an hour and 30 minutes during rush hours.  Hence, to avoid making applicants drive long distances, USCIS would assign cases in central Jersey to Newark.

The establishment of the Central New Jersey Field office is aimed at relieving the workload of the other two field offices.  Situated in Cranbury, a township located near the mid-point between Newark and Mt. Laurel, the new USCIS field office will handle the immigrant cases of applicants who reside in Central New Jersey. 

Just like the other field offices, the Central NJ field office is a full-service office that handles all common immigration cases. including naturalization testing and interviews, interviews of green card applicants based on family relationship or employment offers.  biometric appointments, and other usual immigration processes. Ya-Mei Chen, a Chinese immigrant, is the Field Office Director in charge of the Central NJ field office. 

Currently, the processing times at Newark Field Office are still relatively long: 9.5 months for N-400 naturalization applications; 18 months for family-based I-485 applications; and 21.5 months for employment-based I-485 applications.  The addition of the Central Jersey Field Office should alleviate the workload of the other offices and shorten the case processing times.  

Located at 8 Cedarbrook Dr, Cranbury, NJ 08512, the Central NJ Field Office has brand new offices with ample parking spaces.  Applicants should not be concerned if their cases are transferred to this office. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)