In this edition, find the latest news on additional visas supplemented by DHS, 180 day extensions for renewal applicants, the Texas Service Center, and more!
DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2024
On November 3, 2023, the Department of Homeland Security (DHS), in consultation with the Department of Labor, announced that it will make available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2024 via a temporary final rule. This is on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year. DHS said the supplemental visa allocation “will help address the need for seasonal or other temporary workers in areas where too few U.S. workers are available.” The H-2B supplemental is expected to include an allocation of 20,000 visas to workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras, DHS said. In addition, 44,716 supplemental visas will be available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. “The regulation would allocate these supplemental visas for returning workers between the first half and second half of the fiscal year to account for the need for additional seasonal and other temporary workers over the course of the year, with a portion of the second half allocation reserved to meet the demand for workers during the peak summer season,” DHS said.
- DHS news release (Nov. 3, 2023).
Certain Renewal Applicants for Work Authorization Qualify for Automatic 180-Day Extension
U.S. Citizenship and Immigration Services (USCIS) announced that certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring work authorization and/or employment authorization documents (EADs) while their renewal applications are pending. As of October 27, 2023, those who are eligible “will receive 180-day extensions in accordance with existing regulations, including those who have applied for or have received Temporary Protected Status or asylum,” USCIS said.
The agency noted that in May 2022, it announced a temporary final rule (TFR) that increased the automatic extension period for EADs available to certain EAD renewal applicants from up to 180 days to up to 540 days. This new change is not retroactive, USCIS said; “all previous up to 540-day automatic extensions will remain in place.”
USCIS said it is determining whether there is a need for a new regulatory action similar to the May 2022 TFR.
As announced in the 2022 TFR, automatic extensions of employment authorization and EAD validity will be the original up to 180-day period for eligible applicants who timely file a Form I-765 renewal application on or after October 27, 2023. For those who received an increased automatic extension period under the TFR, the increased automatic extension will end when they receive a final decision on their renewal application or when the up to 540-day period expires (counted from the expiration date of the employment authorization and/or their EAD), whichever comes earlier.
USCIS also recently published a Policy Manual update increasing the maximum EAD validity period to five years for initial and renewal applications approved on or after September 27, 2023, for the following categories:
- Certain noncitizens who are employment-authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, or granted asylum, and recipients of withholding of removal; and
- Certain noncitizens who must apply for employment authorization, including applicants for asylum and withholding of removal, adjustment of status, and suspension of deportation or cancellation of removal.
- USCIS alert (Oct. 27, 2023).
- USCIS Automatic Employment Authorization Document Extension page (updated Oct. 27, 2023).
Texas Service Center Is New Filing Location for H-2A, H-2B, and Certain CNMI Petitions as of November 1
U.S. Citizenship and Immigration Services (USCIS) announced that beginning November 1, 2023, all H-2A, H-2B, Commonwealth of the Northern Mariana Islands (CNMI)-related Form I-129 petitions, Form I-129CW petitions, and CNMI-related Form I-539 applications must be filed directly with the Texas Service Center.
USCIS said there will be a 60-day grace period for forms filed at the California Service Center (CSC) or Vermont Service Center (VSC) during which misdirected forms will not be rejected. After the 60-day grace period ends, USCIS will reject these petitions and applications if they are filed at the CSC or VSC. USCIS also will reject any such petitions and applications if they are received at the Texas Service Center before November 1, 2023.
The notice includes the addresses where each type of petition or application should be mailed.
- USCIS alert (Oct. 27, 2023).
Executive Order on Artificial Intelligence Includes Immigration-Related Provisions
On October 30, 2023, President Biden issued “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” Section 5 of the order, “Promoting Innovation and Competition,” includes various immigration-related provisions. For example, the order:
- Calls for the Secretaries of State and Homeland Security to streamline processing times of visa petitions and applications, including by ensuring timely availability of visa appointments, for noncitizens who seek to travel to the United States to work on, study, or conduct research in artificial intelligence (AI) or other critical and emerging technologies; and facilitate continued availability of visa appointments in sufficient volume for applicants with expertise in AI or other critical and emerging technologies;
- Calls for the Secretary of State to consider initiating a rulemaking to establish new criteria to designate countries and skills on the Department of State’s exchange visitor skills list as it relates to the 2-year foreign residence requirement for certain J-1 nonimmigrants, including those skills that are critical to the United States;
- Calls for the Secretary of State to consider implementing a domestic visa renewal program to facilitate the ability of qualified applicants, including highly skilled talent in AI and critical and emerging technologies, to continue their work in the United States without unnecessary interruption;
- Calls for the Secretary of State to establish a program to identify and attract top talent in AI and other critical and emerging technologies at universities, research institutions, and the private sector overseas, and to establish and increase connections with that talent to educate them on opportunities and resources for research and employment in the United States, including overseas educational components to inform top STEM talent of nonimmigrant and immigrant visa options and potential expedited adjudication of their visa petitions and applications;
- Calls for the Secretary of Homeland Security to review and initiate any policy changes the Secretary determines necessary and appropriate to clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies, including O-1A and EB-1 noncitizens of extraordinary ability; EB-2 advanced-degree holders and noncitizens of exceptional ability; and startup founders in AI and other critical and emerging technologies, using the International Entrepreneur Rule; and
- Calls for the Secretary of Homeland Security to continue its rulemaking process to modernize the H-1B program and enhance its integrity and usage, including by experts in AI and other critical and emerging technologies, and consider a rulemaking to enhance the process for noncitizens, including experts in AI and other critical and emerging technologies and their spouses, dependents, and children, to adjust their status to lawful permanent resident.
- Executive Order (Oct. 30, 2023).
- White House statement (Oct. 31, 2023).
- Making AI Work for the American People (talent search portal and other links).
USCIS Issues Guidance on 2-Year Foreign Residence Requirement for J Nonimmigrants
Effective October 24, 2023, U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance regarding the 2-year foreign residence requirement for the J nonimmigrant exchange visitor classification.
The update adds information about how USCIS determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how USCIS considers situations in which it is effectively impossible for the benefit requestor to satisfy the requirement. It also corrects an omission from existing Policy Manual content concerning one of the grounds for waiving the foreign residence requirement for certain foreign medical graduates. The update includes the ground and clarifies employment requirements.
Specifically, the update:
- Clarifies that USCIS determines whether the exchange visitor has met the 2-year foreign residence requirement within the context of a subsequent application or petition under the preponderance of the evidence standard.
- Explains that a travel day, where a fraction of the day is spent in the country of nationality or last residence, counts toward satisfaction of the 2-year foreign residence requirement.
- Provides that USCIS considers situations in which it is impossible for the benefit requestor to satisfy the 2-year foreign residence requirement on a case-by-case basis, and that USCIS consults with the Department of State in this situation.
- Clarifies the three exceptions to the requirement that a foreign medical graduate obtain a contract from a health care facility in an underserved area when seeking a waiver of the 2-year foreign residence requirement.
Feedback on this update can be emailed to USCIS at firstname.lastname@example.org.