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​:

H-1B Modernization Reforms Face Uncertainty as Trump Administration Prepares for Office

As the Biden Administration's sweeping overhaul of the H-1B visa program nears its implementation date of January 17, 2025, questions arise about the reforms' survival under the incoming Trump Administration. With Stephen Miller, a key architect of restrictive immigration policies during Trump's first term, rejoining the White House administration, the future of these changes appears precarious.

The Biden Administration's rule, announced by the Department of Homeland Security (DHS) earlier this month, aims to modernize the H-1B program, providing U.S. businesses with greater flexibility to hire highly skilled foreign workers while enhancing program integrity. However, President-elect Trump's past actions and campaign rhetoric suggest these reforms could face significant rollback efforts.

Potential Threats to Cuurent's H-1B Reforms:

The Trump Administration's earlier tenure was marked by efforts to tighten eligibility criteria for H-1B visas, increase denials, and restrict pathways for foreign workers. With Miller returning to influence immigration policy, several elements of the Biden reforms are at risk:

1. Restoration of Prior Deference for Extensions: Biden's rule reinstates a “prior deference” policy for H-1B extensions, streamlining the process for workers with previously approved visas. The Trump Administration eliminated this policy in 2017, requiring applicants to repeatedly prove eligibility, and a similar rollback is likely under Trump's leadership.
2. Specialty Occupation Definition: The Biden reforms loosen restrictions by allowing a logical connection, rather than a strict match, between degree fields and job duties. This flexibility is crucial for startups and emerging industries but conflicts with the Trump Administration's prior stance of narrowing the specialty occupation criteria, which could return.
3. CAP-Exempt Employer Flexibility: Biden's rule broadens cap exemptions for nonprofit and research organizations, allowing them to qualify if research is a “fundamental activity.” Trump's prior actions suggest a return to stricter interpretations that could make it harder for such organizations to bypass the annual lottery.
4. Support for Entrepreneurs: Under Biden, entrepreneurs with controlling interests in their companies can qualify for H-1B status under specific conditions. This provision could be targeted by Miller, who has historically sought to limit pathways perceived as lenient or prone to abuse.
5. Integrity Measures and Worksite Inspections: While both administrations prioritize integrity, Trump's previous policies emphasized audits and worksite inspections that often resulted in increased employer scrutiny. A reversion to this enforcement-heavy approach could deter employers from participating in the program.

Legal and Procedural Hurdles:

Despite these risks, the Biden reforms are codified in federal regulations, which cannot be rescinded overnight. To reverse the rule, the Trump Administration would need to initiate a formal rulemaking process, including public notice and comment periods. This process could take months or years and would likely face legal challenges from employers and immigration advocacy groups.

Industry and Advocacy Pushback: 

The business community, particularly in the technology and healthcare sectors, has strongly supported the Biden reforms. Employers argue that the modernized H-1B program is critical to addressing talent shortages and maintaining U.S. competitiveness in the global economy. Any efforts to dismantle these changes could face intense resistance from industry leaders, trade associations, and advocacy groups.

Cecilia Esterline, a senior immigration policy analyst, highlighted the importance of these reforms:

“The Biden Administration's H-1B modernization strikes a balance between innovation and integrity. Rolling back these changes would undermine businesses ability to attract and retain global talent, hurting the U.S. economy.”

Broader Implications for Immigration Policy: 

The uncertainty surrounding the H-1B program reflects a larger ideological divide on immigration policy. While the Biden Administration emphasized flexibility and economic growth, the incoming Trump Administration may prioritize restrictive measures, framing them as necessary to protect American workers.

Stephen Miller's reappointment to the White House signals a return to hardline immigration policies. Advocates fear that under his guidance, the administration could attempt to restrict not only the H-1B program but also broader pathways for skilled immigration, exacerbating labor shortages in critical industries.

What's Next for H-1B Reforms?

The Biden Administration's reforms are set to take effect days before the Trump Administration takes office on January 20, 2025. Employers and immigration attorneys are urging swift implementation of the new rule to solidify its place in federal policy before potential challenges arise.

Advisory for Nonimmigrant Visa Holders: Return to the U.S. Before January 20th

As Donald Trump prepares to assume office on January 20th, nonimmigrant visa holders (F-1, H-1B, L-1, TN, E-3) and TPS holders are strongly advised to return to the United States before this date to avoid potential complications. Based on Trump's previous policy positions and statements, there is a significant risk of travel bans, delays in visa issuance, or other restrictive measures that could affect both nonimmigrant and immigrant visa holders.

Key Concerns for Visa Holders:

Trump has pledged to enact sweeping immigration and domestic policies that may directly or indirectly impact visa holders and immigrants. These include:

• Border Restrictions: Plans to close the U.S.-Mexico border could lead to delays or disruptions in cross-border travel, affecting visa holders attempting to re-enter the U.S.
• Mass Deportations: A proposed large-scale deportation program may increase scrutiny of visa holders and TPS beneficiaries, including those re-entering the U.S. after travel abroad.
• Changes to Parole Programs: TPS holders who traveled on advance parole should return promptly, as there may be abrupt changes to parole-related policies.

Broader Policy Changes:

In addition to immigration-specific measures, Trump has proposed several other actions that may shape his administration's approach:

USCIS to Roll Out Revised Form I-129 for Nonimmigrant Worker Petitions on January 17, 2025

The U.S. Citizenship and Immigration Services (USCIS) has announced the release of a new edition of Form I-129, Petition for a Nonimmigrant Worker, effective January 17, 2025. The updated form aligns with recent final rules for the modernization of both the H-1B and H-2 visa programs.

The revised Form I-129 (edition date: 01/17/25) will replace the current version (edition date: 04/01/24), which will no longer be accepted for petitions received on or after January 17, 2025. This change reflects USCIS's commitment to implementing new regulations aimed at streamlining processes and enhancing program integrity.

Key Updates and Deadlines:

1. Effective Date:

• The new edition of Form I-129 will be required for all petitions received on or after January 17, 2025.
• USCIS will not provide a grace period for transitioning to the revised form.

2. Submission Guidelines:

• Petitions using the 04/01/24 edition will be accepted only if received before January 17, 2025.
• Petitions received on or after January 17, 2025, must use the 01/17/25 edition of the form.

3. Preview Availability:

• A preview version of the new Form I-129 and its instructions is now available on the USCIS website. Employers and attorneys are encouraged to review the updated form in advance to ensure compliance.

4. Important Filing Note:

• Do not file the 01/17/25 edition of Form I-129 before January 17, 2025. Petitions using this form will only be accepted starting on the effective date.

Implications for Employers:

The new edition of Form I-129 incorporates changes to support the recent H-1B and H-2 modernization rules, which streamline processes and clarify eligibility requirements for nonimmigrant workers. Employers filing petitions for H-1B, H-2A, H-2B, or other nonimmigrant categories covered under Form I-129 must transition to the updated form to avoid rejections or delays.

USCIS Statement: 

In a release, USCIS emphasized the importance of using the revised form:

“This update ensures that USCIS can effectively implement the final rules for H-1B and H-2 visa programs, improving efficiency and compliance with modernized regulations.”

USCIS Updates Policy on Immigration Flexibilities During Emergencies and Unforeseen Circumstances

U.S. Citizenship and Immigration Services (USCIS) has issued updated guidance in its Policy Manual to clarify the range of flexibilities available to immigration benefit requestors during and after emergencies or unforeseen circumstances. The update is designed to provide clarity on how USCIS may exercise discretion to assist individuals impacted by unexpected events that create challenges in meeting immigration requirements.

Key Areas of Flexibility: 

The guidance outlines several scenarios where USCIS may implement discretionary measures, including:

1.  Requests for Extension of Stay or Change of Status:USCIS may accommodate those unable to file timely applications due to disruptions caused by emergencies.
2. Applications for Employment Authorization: Flexibilities may be available for those facing delays in submitting or renewing work permits due to unforeseen circumstances.
3. Document Replacement: USCIS may expedite the replacement of critical immigration documents lost or destroyed during emergencies.
4. Responses to Requests for Evidence (RFEs): Failure to respond to RFEs or Notices of Intent to Deny (NOIDs) due to emergencies may not automatically result in application denials.
5. Fee Waivers and Expedited Processing: USCIS may waive certain fees or prioritize expedited processing for individuals affected by emergencies.
6. Satisfactory Departure: Certain nonimmigrant visa holders who are unable to leave the United States due to an emergency may request additional time to remain lawfully in the country.

Emergencies and Unforeseen Circumstances Defined:

The updated guidance provides examples of emergencies and unforeseen events that could warrant these flexibilities, including: