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Immigration Update

Apr 19, 2024 | Immigration Updates

In this edition, find the latest news on Schedule A expansion, the H-1B Cap registration, EB-5 audit measures, and much more!

Expansion of Schedule A, Group II Definition to Support STEM Talent

In a significant development for employers and individuals involved in the STEM fields, the U.S. Citizenship and Immigration Services (USCIS) has announced an update to the definition of “Schedule A, Group II” occupations, which is part of the agency’s efforts to align more closely with the Department of Labor (DOL) definitions and streamline the permanent residency application process for high-achieving employees. This clarification, as outlined in the latest policy guidance from USCIS, expands the “science or art” categories within Schedule A, Group II, to include any field of knowledge or skill for which colleges and universities commonly offer courses leading to a degree. This change, effective immediately, is designed to enhance the utility of the Schedule A, Group II designation for employers sponsoring employees for permanent residency, particularly in sectors experiencing a shortage of qualified U.S. workers.

The updated policy now explicitly incorporates the DOL’s definition of “sciences or arts,” covering a broader range of occupations than previously eligible. This means that occupations in any field that commonly lead to a degree from higher education institutions, and that demonstrate exceptional ability, are now encompassed under the Schedule A, Group II designation. Importantly, this designation waives the labor market test requirement for EB-2 or EB-3 permanent residency sponsorship applications, facilitating a more efficient pathway to permanent residency for eligible employees. This policy update reflects the current administration’s commitment to retaining STEM talent within the United States and underscores the agency’s ongoing efforts to make the immigration process more accommodating for individuals with exceptional abilities in the sciences and arts.

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USCIS Has Completed FY2025 H-1B Cap Initial Registration

U.S. Citizenship and Immigration Services (USCIS) has completed the selection process for fiscal year (FY) 2025 H-1B cap registrations, including the master’s cap, and has notified selected petitioners to proceed with filing their H-1B cap-subject petitions. Registrants can now check the status of their submissions online, with designations ranging from “Submitted” to “Selected” or “Not Selected.” Additionally, USCIS reminds petitioners that H-1B cap-subject petitions for FY 2025 may be filed starting April 1, 2024, for selected beneficiaries, requiring submission of a copy of the selection notice and evidence of the beneficiary’s valid passport or travel document used during registration. USCIS also highlighted changes in fees, form edition, and filing location effective April 1, 2024.

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New Audit Measures for EB-5 Regional Centers

The U.S. Citizenship and Immigration Services (USCIS) has announced new audit measures under the EB-5 Reform and Integrity Act of 2022, affecting all designated regional centers. Under the 2022 law, USCIS must conduct audits at least once every five years for each regional center. These audits are comprehensive, including a review of necessary documentation maintained by the regional centers and the flow of immigrant investor capital into their projects. This initiative aims to reinforce the credibility and reliability of the EB-5 program by verifying the accuracy of information provided in the regional center applications, annual certifications, and related investor petitions.

In terms of procedure, USCIS will implement audits based on the Generally Accepted Government Auditing Standard, starting April 23. This will provide a standardized approach to assess the regional centers’ compliance with laws and their eligibility for continued designation. It’s important for regional centers to understand that non-compliance during these audits, such as refusing a site visit or attempting to impede the audit process, may lead to termination of their designation. However, adverse findings from an audit do not automatically affect the status of EB-5 associated entities or petitioners unless they directly involve non-compliance or eligibility issues.

USCIS has created a website with additional resources for regional centers, including how to prepare for an audit, participating in an audit, and more.

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USCIS Announces Rule to Increase Automatic Extension Period for Work Permits

U.S. Citizenship and Immigration Services announced a temporary final rule to increase the automatic extension period for certain employment authorization document (EAD) holders from 180 days to 540 days.  This temporary measure applies to eligible applicants who timely filed an EAD renewal application on or after October 27, 2023, if the application is pending on the date of publication in the Federal Register, as well as those renewal applicants who timely file their applications during the 540 day period after the rule’s publication. The aim is to prevent nearly 800,000 EAD renewal applicants, including asylum applications, Temporary Protected Status applicants and green card applicants, from suffering a lapse in their employment authorization.

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Employment Authorization Granted to Eligible Palestinians under DED

U.S. Citizenship and Immigration Services (USCIS) has issued a significant update for Palestinians in the United States, as detailed in a recent Federal Register notice. Effective immediately, Palestinians covered by Deferred Enforced Departure (DED) are eligible to apply for Employment Authorization Documents (EADs) valid through August 13, 2025. This follows a memorandum issued by President Biden on February 14, 2024, which defers the removal of certain Palestinians present in the U.S. from the time of the announcement through August 13,2025. The memorandum directs the Department of Homeland Security to implement measures facilitating work authorization for eligible Palestinians and excludes individuals who entered the U.S. after February 14, 2024 from DED eligibility. Applicants will need to provide acceptable documentation, such as a Palestinian Authority passport or identification card, to support their applications.

Additionally, the announcement includes provisions for Special Student Relief for Palestinian F-1 nonimmigrant students, allowing them to request employment authorization, work more hours during the school session, and reduce their course load while maintaining their F-1 status. These measures aim to assist Palestinians in maintaining economic stability and educational pursuits during their stay in the U.S. under DED. USCIS has committed to adjudicating each EAD application on a case-by-case basis, ensuring a fair, humane, and efficient process.

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Corporate + Counsel Special Edition:

Employment Based Immigrant Visa Limits Met for FY2024 – Q&A with Charlie Oppenheim (Past DOS Chief, Visa Controls) Charles Oppenheim, WR Immigration’s Director of Visa Consulting and a retired U.S. Department of State Chief of Visa Controls, brings unmatched expertise from decades of managing the Visa Bulletin. His experience provides unique insights into the “how” and “why” behind the Department of State’s—and to some extent, USCIS’s—approach to immigrant visa allocation and processing. Recent announcements that visa number limits have been reached for almost all employment-based categories have left many foreign nationals and their supporters puzzled, asking, “Why did this happen so early?” and “What does this mean for my clients, customers, colleagues, or me?” Fortunately, Charlie is here to expertly answer those questions. Ceri: The Department of State “State” recently announced that the annual limits for the EB-1, EB-3, EW and EB-5 (unreserved) categories have been reached. Can you explain the factors that contribute to these categories hitting their annual limits more than 1 month before the end of the fiscal year?  Charlie:   The State Department’s goal is to maximize number use under each of the various annual limits.  They do so by establishing monthly targets regarding the amount of […]

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Immigration Update

Please see below for updates and changes from SSA, DHS, ICE and CBP! SSA Ends “No-Match” Letters Good news!  The Social Security Administration (SSA) has ended the practice of sending employers “no-match” letters, called Employer Correction Request Notices. SSA said it will instead work to make it better, easier and more convenient for employers to report and correct wages electronically. The letters, which inform employers when W-2 information doesn’t match SSA’s records, were discontinued in 2012 but resurrected in March 2019. Advocates had asked the agency to eliminate the letters, which they said caused problems such as workers losing their jobs due to mistakes in the database. DHS to Make Additional 22,000 Temporary Non-Agricultural Worker Visas Available In light of increased labor demands, the Department of Homeland Security (DHS) announced a supplemental increase of 22,000 visas this fiscal year for the H-2B Temporary Non-Agricultural Worker program. DHS said the additional visas will be made available in the “coming months” via a temporary final rule. Six thousand of these visas will be reserved for nationals of the Northern Triangle countries of Honduras, El Salvador, and Guatemala, DHS said. The additional visas will only be made available to employers that attest that, […]

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