Dear Clients and Colleagues,

We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:

Second Random Selection Complete for FY 2025 H-1B Regular CAP

U.S. Citizenship and Immigration Services (USCIS) has completed a second round of random selections from previously submitted registrations for the FY 2025 H-1B regular CAP. This additional selection was necessary to meet the numerical allocation required for the fiscal year. USCIS has notified all prospective petitioners with selected registrations from this round, informing them that they are now eligible to file an H-1B CAP-subject petition for the beneficiary named in the selected registration.

Regular CAP: This second selection applies only to the regular H-1B CAP. No second selection was conducted for the advanced degree exemption (master's CAP), as sufficient registrations had already been selected to meet the master's CAP allocation.

Filing Requirements: Petitioners with selected registrations must file their H-1B CAP-subject petitions at the correct filing location or online through the my.uscis.gov portal within the filing period indicated on the selection notice. The filing window will be at least 90 days.

Eligibility Confirmation: Registration selection only grants eligibility to file an H-1B CAP-subject petition. Petitioners must still establish eligibility for petition approval under current statutory and regulatory guidelines.

Important Reminders:

New Fee Structure: USCIS has implemented a new fee structure effective April 1, 2024. Petitions must include the updated fees, or they will not be accepted.

Updated Form I-129: USCIS now requires petitioners to use the new 04/01/24 edition of Form I-129, Petition for a Nonimmigrant Worker. Petitions submitted on earlier versions of the form will not be accepted.

For those selected in this second round, the path to securing an H-1B visa for FY 2025 continues, with timely filing and correct documentation being essential next steps.

August 2024 Update: DOL PERM and PWD Processing Times

As of August 1, 2024, the Department of Labor (DOL) is making progress on processing times for both PERM applications and Prevailing Wage Determinations (PWDs). Here's the latest update:

PERM Applications: The DOL is currently conducting analyst reviews for PERM applications filed in **July 2023** or earlier. For cases under audit, the agency is processing those with priority dates of **December 2022** or earlier. Additionally, the DOL is addressing standard reconsideration requests that were filed in **November 2023** or earlier.

• Prevailing Wage Determinations (PWDs)

For PERM PWDs:

• **OES-based PWDs** Requests filed in **January 2024** are currently being processed.
• **Non-OES PWDs** Requests filed in **September 2023** are being processed.

For H-1B PWDs:

• **OES-based PWDs** Requests filed in **February 2024** are being processed.
• **Non-OES PWDs** Requests filed in **December 2023** are being processed.

**Redeterminations and Reviews**: The DOL is handling PERM and H-1B prevailing wage redeterminations requested in **March 2024** Center Director reviews for both PERM and H-1B requests are being processed if submitted in **August 2023**

For more detailed updates, you can visit the DOL FLAG page, where regular reports are made available.

Staying updated on these timelines is critical for ensuring your immigration process moves forward smoothly. If you have any questions or need assistance with your immigration needs, please feel free to reach out to us.

September 2024 Visa Bulletin Briefing

Welcome to our briefing on the September 2024 Visa Bulletin. As the final Visa Bulletin for Fiscal Year (FY) 2024, this update brings some important developments, especially in the employment-based categories.

Employment-Based Retrogressions:

The key change in this month's bulletin is the significant retrogression in the EB-3 Worldwide category, which has moved back by a full year - from December 1, 2021, to December 1, 2020. While other categories have remained unchanged from August, this retrogression highlights the growing demand and limited supply of employment-based visas as the fiscal year draws to a close.

The U.S. State Department has cautioned that high demand for employment-based visas continues, and if any category's visa numbers are exhausted, they may become “unavailable” before the end of September 2024. This could affect some categories as early as mid to late August.

Looking ahead, the State Department is cautiously optimistic that the retrogressed EB-3 category may advance once the new fiscal year begins in October 2024. However, any forward movement will depend on global demand, which remains unpredictable.

Adjustment of Status Filing Chart Updates:

The U.S. Citizenship and Immigration Services (USCIS) continues to accept filings based on the Filing Dates Chart for family-based applications and the Final Action Dates Chart for employment-based applications. This means that applicants in certain categories should carefully review the charts to determine their eligibility for filing.

Diversity Visa Lottery Results:

The September 2024 Visa Bulletin also provides updates on the results of the FY2025 Diversity Visa Lottery. Out of nearly 20 million qualified entries, 131,060 registrations were selected for the 55,000 available visas. This higher number of selectees ensures that all available diversity visa numbers will be used during FY2025, even considering potential ineligibility or failure to complete cases.

Special Immigration Visas (SIVs) for U.S. Government Employees:

The bulletin reiterates a provision from the National Defense Authorization Act (NDAA) that became law on December 22, 2023, affecting current and former U.S. government employees abroad awaiting special immigrant visas. If you or someone you know may be impacted, it's essential to contact the consular post where Form DS-1844 was filed. Notably, Iraqis and Afghans applying for SQ and SI SIVs are not affected by this provision.

Preparing for FY2025:

As we approach the new fiscal year, the State Department has warned of potential visa number shortages and further retrogressions. With USCIS also reporting strong usage of available green card numbers, we advise applicants and stakeholders to prepare for continued tightening of visa availability through the end of FY2024. However, there is some hope for forward movement in the October 2024 Visa Bulletin as FY2025 begins.

Stay tuned for further updates, and please reach out to us if you need assistance navigating these changes.

What If your Employment-Based Form I-485 Was Approved When the Priority Date Was Not Current?

AILA has received reports of employment-based Form I-485 applications being approved when the priority date was not current according to the "Final Action" chart of the Visa Bulletin. This premature approval can create significant issues for applicants, particularly when applying for naturalization. USCIS may rescind the adjustment if the applicant was not eligible for permanent residency at the time of approval.

Key Points:

• Premature Approval Risks: Applicants could face challenges during naturalization or risk rescission of their status if a visa number was not available when the Form I-485 was approved.
• Recommendations: Applicant as well as the immigration attorney should verify visa availability at the time of approval. If an issue arises, they should:

1. Contact USCIS to request reopening of the case.
2. File a Motion to Reopen (Form I-290B).
3. Seek assistance from the USCIS Ombudsman or a congressional office.

Staying vigilant can help mitigate the risks associated with premature I-485 approvals and protect your immigration status.

New 212(d)(3) Waiver Guidance

A 212(d)(3) waiver is a provision under the Immigration and Nationality Act (INA) that allows nonimmigrant visa applicants who are otherwise inadmissible to the U.S. to request a waiver of their inadmissibility. In simple terms, this waiver can be a lifeline for individuals denied a visa due to grounds of inadmissibility, such as past unlawful presence, criminal convictions, or other reasons.

The waiver can only be issued by U.S. Customs and Border Protection's (CBP) Admissibility Review Office (ARO). Consular officers play a crucial role by recommending the waiver to the ARO, as applicants cannot directly request the waiver themselves.

Key Factors for Waiver Consideration:

Consular officers are guided by specific factors when determining whether to recommend a waiver under 212(d)(3). According to the new FAM updates, the key factors include:

• Recency and Seriousness of the Inadmissibility: How recent and severe was the activity or condition that caused the applicant's ineligibility?
• Impact on U.S. Public Interests: Does the applicant's planned travel positively or negatively impact U.S. public interests? For example, individuals with U.S. degrees or credentials in skilled labor seeking employment in related fields are viewed as having a positive effect on public interest.
• Isolated Incident or Pattern of Misconduct: Was the inadmissibility due to a single isolated incident or a pattern of misconduct?
• Evidence of Reformation or Rehabilitation: Has the applicant demonstrated rehabilitation or made efforts to reform?

What if the Consular Officer Does Not Recommend the Waiver?

If the consular officer does not recommend the 212(d)(3) waiver to the ARO, applicants have another option. They can file a waiver request directly with the Waiver Review Branch. This branch reviews waiver applications under INA 212(d)(3) and can grant waivers independently of the consular officer's recommendation. Working with an experienced immigration attorney is crucial to ensure that all the necessary documentation and arguments are presented to maximize the chance of approval through this alternative route.

Who Can Benefit from the 212(d)(3) Waiver?

This waiver can benefit a wide range of individuals, including those who were denied a visitor or work visa due to inadmissibility. For instance:

• DACA Recipients and DREAMERs: Many DACA recipients and other DREAMERs who overstayed their visas may need a 212(d)(3) waiver if they wish to apply for a nonimmigrant visa, such as an H-1B. The new guidance suggests more flexibility for these individuals if their entry is considered in the public interest, such as for those who have pursued higher education in the U.S. and are now seeking to work in their field of study.
• Applicants with Past Unlawful Presence: Individuals who accumulated unlawful presence in the U.S. and are now seeking a visa may also benefit from this waiver. The new guidance encourages consular officers to consider the applicant's positive contributions to U.S. interests.

We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.

Sincerely,

Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.