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:
USCIS Issues Final Rules Increasing EAD Auto-Extensions and Expanding CAP-Gap Work Authorization
U.S. Citizenship and Immigration Services (USCIS) has announced two significant updates impacting Employment Authorization Document (EAD) holders and F-1 visa holders transitioning to H-1B status under the cap-gap extension. These final rules, published in the Federal Register on December 13 and December 18, 2024, aim to improve efficiency, address processing delays, and ensure continuity of employment authorization for impacted workers.
540-Day EAD Auto-Extension Now Permanent
USCIS has permanently extended the automatic EAD validity period for certain categories from 180 days to 540 days. This rule ensures eligible employees can continue working while their renewal applications are processed, mitigating employment disruptions caused by USCIS's prolonged processing times.
Key Highlights:
- An employee or new hire with an expiring or expired EAD bearing specific category codes (e.g., C09 for adjustment of status applicants) and a Form I-797C receipt notice for a timely filed Form I-765 renewal application will have their EAD automatically extended for 540 days from the card's expiration date.
- If the renewal application is denied, the extension is terminated.
Example:
An EAD with a C09 category and expiration date of January 1, 2025, accompanied by a Form I-797C receipt notice showing a filing date of December 1, 2024, would authorize the individual to work until June 24, 2026, unless their renewal application is denied.
EAD Extensions for TPS Beneficiaries:
Temporary Protected Status (TPS) beneficiaries with category codes A12 or C19 face narrower eligibility for EAD extensions:
- Renewal requests must be filed before the re-registration date announced in the Federal Register notice for the specific TPS designation.
- Extensions are limited to the end of the TPS designation period or the 540-day period, whichever is shorter.
Example:
A TPS beneficiary from Haiti with a category A12 EAD expiring August 3, 2024, who files for renewal on July 4, 2024, prior to the August 30 re-registration deadline, would receive an EAD extension until January 24, 2026, or the TPS designation period's end, whichever comes first.
CAP-Gap Work Authorization Extended to April:
USCIS has also permanently extended the cap-gap work authorization period for F-1 students awaiting H-1B status from October 1 to April 1 of the following year. This change addresses significant delays in H-1B adjudications that leave many F-1 visa holders in employment gaps.
Key Details:
- F-1 students with a cap-gap EAD (category codes C03B or C03C) and a Form I-797C receipt notice showing that a Form I-129 (H-1B petition) has been filed on their behalf will now have work authorization through April 1 of the next calendar year.
- Previously, these extensions only lasted until October 1, creating challenges for the estimated 26,961 cap-gap beneficiaries annually whose H-1B petitions remain unadjudicated by that date.
USCIS Updates Guidance on Supporting Evidence for International Entrepreneur Parole
U.S. Citizenship and Immigration Services (USCIS) has issued updated policy guidance in its Policy Manual to clarify and expand the types of evidence that can support applications for International Entrepreneur Parole (IEP). This update is aimed at enhancing transparency and assisting noncitizen entrepreneurs seeking to contribute to the U.S. economy through innovation, job creation, and rapid business growth.
Background
The International Entrepreneur Rule, established in 2017, provides a pathway for noncitizen entrepreneurs to obtain parole to work and reside in the United States while fostering the growth of their startup entities. This program leverages parole authority on a case-by-case basis to grant a period of authorized stay for entrepreneurs whose businesses have the potential to deliver significant public benefits through economic growth and job creation.
Entrepreneurs granted parole are authorized to work for their startup entities, while their spouses may apply for separate employment authorization to work in the United States.
Based on its experience adjudicating IEP applications, USCIS has incorporated new guidance and examples into the Policy Manual to support Form I-941, Application for Entrepreneur Parole. This guidance is effective immediately and applies to both pending and new applications filed on or after the publication date.
Policy Highlights:
- Entrepreneur's Role and Contribution: Clarifies the evidence required to demonstrate the applicant's central and active role in the startup entity and their ability to substantially assist in its growth and success, based on their skills and experience.
- Investment and Government Support: Expands examples of evidence showing qualified investment, government awards, or grants. Includes alternative forms of evidence applicants may provide.
- Significant Public Benefit: Provides further guidance on how applicants can establish their startup's potential to deliver a significant public benefit to the U.S.
- Revised guidance in Section A (Entrepreneur) and the addition of Subsection 3, which focuses on the applicant's ability to contribute to the startup's success.
- Updates to Section B (Start-up Entity) to clarify requirements for demonstrating the entity's qualifications.
- Expanded guidance in Section C (Qualified Investment, Award, or Grant) and Section D (Significant Public Benefit), including more detailed examples of alternative evidence.
These updates align with USCIS' commitment to making the program accessible to qualified entrepreneurs while ensuring the integrity of the IEP process.
USCIS Issues Updated Guidance on O-1 Visas for Individuals of Extraordinary Ability, Emphasizes STEM Fields and Emerging Technologies
U.S. Citizenship and Immigration Services (USCIS) has announced comprehensive updates to its Policy Manual regarding evidentiary requirements for O-1 nonimmigrant petitions. These updates clarify the evaluation process for individuals with extraordinary ability in various fields, including sciences, arts, education, business, and athletics, with a particular focus on individuals working in critical and emerging technologies, such as artificial intelligence (AI).
This initiative aligns with President Biden's October 2023 Executive Order on the development and use of AI, which directed the Department of Homeland Security (DHS) to modernize immigration pathways for experts in critical technologies. The updated guidance incorporates feedback from stakeholders and provides clearer, more detailed examples of evidence that can demonstrate extraordinary ability, especially for those in STEM fields.
Overview of the O-1 Visa:
- Awards: Recognition through national or international awards for excellence.
- Memberships: Membership in associations requiring outstanding achievements.
- Published Material: Media or professional coverage of the individual's work.
- Judging: Participation as a judge in evaluating the work of peers.
- Contributions: Original contributions of major significance in the field.
- Authorship: Publications in professional journals or major media.
- Employment: Evidence of work in critical roles at distinguished organizations.
- High Salary: Documentation of a high salary or substantial remuneration.
Key Updates in the Policy Manual:
The recent revisions aim to enhance clarity and flexibility, particularly for STEM professionals and those in emerging technologies. Key highlights include:
- Eligibility and Petitioners: A legal entity owned by the beneficiary, such as a corporation or LLC, may now file a petition on their behalf.
- Evidentiary Criteria: Expanded examples for evaluating evidence, particularly for O-1A petitions in sciences, education, business, and athletics. New guidance for O-1B petitions in the arts and motion picture or television industries.
- Critical Technologies Focus: Additional examples to address occupational changes and contributions within technological fields like AI.
- Flexibility in Extensions: Clarification on circumstances under which O-1 beneficiaries may receive one-year extensions.
- Government Agency Evidence: Examples of evidence that U.S. government agencies can submit to support O-1 petitions.
- STEM-Specific Guidance: Detailed considerations for evaluating evidence in highly technical fields, ensuring fairness in assessing complex contributions.
Implications for Petitioners:
DHS Modernizes H-2 Visa Programs with Final Rule to Address Seasonal Labor Needs and Strengthen Worker Protections
The Department of Homeland Security (DHS) today announced a final rule aimed at modernizing and improving the H-2 nonimmigrant visa programs, which allow U.S. employers to fill temporary or seasonal jobs in agriculture and other industries when qualified U.S. workers are unavailable. The new rule enhances program efficiency, strengthens worker protections, and increases flexibility for both employers and workers.
“The H-2 programs strengthen our nation's economy by supporting the seasonal labor needs of employers that rely on temporary workers,” said DHS Secretary Alejandro N. Mayorkas. “By modernizing and improving this program, we increase protections for our nation's workers, help maintain economic growth, and better meet the labor demands of American businesses.”
- Elimination of Country Lists: Removes the requirement to designate eligible countries for H-2 participation, allowing greater flexibility for employers.
- Simplified Stay Rules: Introduces a uniform 60-day absence from the United States to reset the three-year maximum period of stay for H-2 workers, replacing the previous “interrupted” stay provisions.
2. Strengthening Worker Protections and Program Integrity
- Prohibited Fees and Penalties: Strengthens the prohibition on charging H-2A and H-2B workers certain fees and introduces penalties for companies found in violation.
- Whistleblower Protections: Extends whistleblower protections to H-2A and H-2B workers, aligning them with those currently offered to H-1B workers.
- Compliance and Inspections: Mandates employer compliance with USCIS reviews and site visits, with the authority to deny or revoke petitions for non-cooperation or violations.
- Labor Violation Consequences: Adds grounds for denying or revoking petitions for employers found guilty of labor or other legal violations.
3. Enhancing Worker Flexibility
Grace Periods:
- Introduces a 60-day grace period for workers to find new employment or depart the U.S. after employment ends.
- Extends the existing 30-day grace period after petition revocations to 60 days and expands it to cover all revocations.
- Confirms H-2 workers maintain their status for 10 days before and 30 days after their petition validity period.
Portability:
- Allows H-2 workers to begin new employment immediately after a new petition is filed, without waiting for approval.
Pathway to Permanent Residence:
- Ensures that H-2 workers seeking lawful permanent residency will not lose their H-2 status solely for pursuing this process.
Impact on Employers and Workers:
The rule provides U.S. businesses with greater flexibility to address seasonal labor shortages more efficiently while implementing stronger safeguards to protect workers' rights. It also makes the H-2 program more adaptable to the evolving needs of industries reliant on temporary labor, such as agriculture, construction, and hospitality.
“This final rule makes us more efficient in helping U.S. employers fill their temporary or seasonal positions, while also making sure we're protecting both U.S. workers and the noncitizen workers who help fuel our economy,” said USCIS Director Ur M. Jaddou.
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.
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