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:
Alternatives for Foreign Nationals Not Selected in the H-1B Lottery
The H-1B visa lottery remains fiercely competitive, with demand consistently exceeding the annual CAP of 85,000 visas (65,000 for the general category and 20,000 for the advanced degree exemption). As a result, many highly qualified foreign nationals find themselves without an H-1B visa. Fortunately, there are several alternatives to consider, ranging from other nonimmigrant visa categories to various green card options. Below, we discuss some of the most viable alternatives.
1. CAP-Exempt H-1B Filings
CAP-exempt H-1B visas are not subject to the annual lottery, making them an attractive option for certain candidates. Qualifying employers include:
- Institutions of higher education (e.g., universities, colleges)
- Nonprofit organizations affiliated with or related to institutions of higher education
- Nonprofit research organizations
- Governmental research organizations
- Immediate work authorization for eligible students.
- No lottery or annual limit.
Cons:
- Excessive CPT usage can jeopardize future immigration benefits.
- Often seen as a short-term solution rather than a pathway to permanent residency.
3. O-1 Visas (Extraordinary Ability or Achievement)
The O-1 visa is designed for individuals with extraordinary ability in their field. This can include business, science, education, arts, or athletics.
Eligibility Criteria:
- Evidence of sustained national or international acclaim.
- Demonstration of extraordinary ability through awards, publications, high salaries, memberships, and other accomplishments.
Pros:
- No annual CAP or lottery.
- Can be renewed indefinitely.
Cons:
- Requires strong evidence of extraordinary ability.
- Can be challenging to qualify for early-career professionals.
4. J-1 Programs (Exchange Visitors)
The J-1 visa allows individuals to participate in approved exchange programs, including internships, training, research, and teaching.
Types of J-1 Programs:
- Research scholars.
- Professors.
- Trainees and interns.
- Physicians participating in graduate medical education.
Pros:
- Offers flexibility and a range of categories.
- May provide work authorization.
Cons:
- Subject to the two-year home residency requirement in some cases.
- Limited duration for certain categories.
- No annual CAP or lottery.
- Relatively quick processing.
- Renewable indefinitely (in three-year increments).
Cons:
- Only available to citizens of Canada and Mexico.
- Limited to professions listed under the USMCA.
6. E-3 Visa (For Australian Citizens)
The E-3 visa is exclusively available to Australian citizens who will be working in specialty occupations in the U.S.
Pros:
- No annual CAP or lottery (although there is a quota of 10,500, it is rarely met).
- Renewable indefinitely (in two-year increments).
- Spouses can apply for work authorization.
Cons:
- Only available to Australian citizens.
- Requires proof of a specialty occupation job offer.
7. Green Card Filings (EB-1, EB-2 NIW, EB-5)
EB-1A: Extraordinary Ability Green Card:
- No job offer required.
- Faster processing compared to other categories.
Cons:
- High standard of proof required.
EB-2 National Interest Waiver (NIW):
Individuals with advanced degrees or exceptional ability whose work benefits the U.S. can self-petition under this category.
Pros:
- No job offer required.
- Suitable for researchers, entrepreneurs, and professionals with a clear national interest case.
Cons:
- Requires a well-documented petition.
EB-5: Immigrant Investor Program:
- Direct path to permanent residency.
- No requirement for a job offer or labor certification.
Cons:
- High financial commitment.
- Strict documentation and compliance requirements.
8. L-1 Visas (Intracompany Transferee)
The L-1 visa is ideal for employees of multinational companies who have worked abroad for at least one year within the last three years in a managerial, executive, or specialized knowledge role.
Pros:
- No annual CAP or lottery.
- Dual intent visa, allowing for green card applications.
Cons:
- Requires employment with a qualifying multinational organization.
- Limited to individuals in managerial, executive, or specialized knowledge roles.
9. E-2 Treaty Investor Visa
- No minimum investment amount, but must be substantial.
- Renewable indefinitely.
Cons:
- Only available to nationals of treaty countries.
- Does not lead directly to a green card.
10. Global Visa Categories
For those willing to consider opportunities outside the U.S., other countries have attractive visa programs for skilled workers, entrepreneurs, and investors. For example:
- Canada: Express Entry, Provincial Nominee Program (PNP), Start-Up Visa.
- Australia: General Skilled Migration Program, Global Talent Visa.
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United Kingdom: Global Talent Visa, Skilled Worker Visa.
Exploring work or residency options in other countries can be a viable alternative while pursuing opportunities in the U.S.
Foreign nationals not selected in the H-1B lottery have multiple alternative pathways to explore. The key is to assess your qualifications and goals to determine the most suitable visa or green card option. Consulting with an experienced business immigration attorney like Keshab Raj Seadie, Esq. can provide valuable guidance and ensure that you pursue the most appropriate and viable pathway for your situation.
April 2025 Visa Bulletin Released: Key Updates
The U.S. Department of State has published the April 2025 Visa Bulletin, detailing the availability of immigrant visa numbers for the upcoming month. The bulletin indicates forward movement in several family- and employment-based categories, with notable exceptions in the EB-4 and EB-5 classifications.
Family-Sponsored Categories:
- F1 (Unmarried Sons and Daughters of U.S. Citizens): The worldwide final action date has advanced nearly four months to March 15, 2016. Mexico's date moved to January 1, 2005, and the Philippines' date progressed to July 15, 2012.
- F2B (Unmarried Sons and Daughters, 21 Years of Age or Older, of Permanent Residents): The worldwide date advanced two months to July 22, 2016. Mexico's date moved to January 1, 2006, and the Philippines' date to January 22, 2012.
- F3 (Married Sons and Daughters of U.S. Citizens): The worldwide date moved forward nine months to April 1, 2011. Mexico's date is now January 15, 2001, and the Philippines' date is March 22, 2003.
- F4 (Brothers and Sisters of Adult U.S. Citizens): Mexico's date advanced to March 15, 2001, and the Philippines' date to January 1, 2005.
Employment-Based Categories:
- EB-1: India's final action date advanced two weeks to February 15, 2022. All other countries remain current.
- EB-2: Worldwide dates moved forward to June 22, 2023. China's date advanced nearly five months to October 1, 2020, and India's date moved to January 1, 2013.
- EB-3: Worldwide dates advanced to January 1, 2023. China's date is now November 1, 2020, and India's date progressed to April 1, 2013.
Notable Changes:
- EB-4 (Special Immigrants): This category is now unavailable for the remainder of the fiscal year due to the exhaustion of visa numbers. No visas will be issued, and USCIS will not accept adjustment of status applications in this category until the annual limits reset on October 1, 2025.
- EB-5 (Investors): Significant retrogression occurred for China and India. China's final action date moved back to January 22, 2014, and India's date regressed to November 1, 2019. The Department of State attributes this to increased demand and warns that further adjustments may be necessary if oversubscription continues.
Adjustment of Status Filing Charts:
For April 2025, USCIS will continue to accept adjustment of status applications for family-based cases based on the Dates for Filing chart. However, employment-based applicants must use the Final Action Dates chart.
USCIS Updates Guidance on EB-2 National Interest Waiver Petitions
U.S. Citizenship and Immigration Services (USCIS) has updated its policy guidance to provide clearer criteria for evaluating eligibility under the employment-based second preference (EB-2) classification for immigrant petitions filed with a request for a National Interest Waiver (NIW).
Typically, an employer initiates an EB-2 petition by filing Form I-140, Immigrant Petition for Alien Workers, after obtaining a labor certification from the Department of Labor. However, USCIS has the authority to waive the job offer and labor certification requirements if it is deemed to be in the interest of the United States. Individuals seeking an NIW may self-petition without the need for an employer's sponsorship.
To qualify for an NIW, petitioners must first demonstrate eligibility for the underlying EB-2 classification by being either a member of the professions holding an advanced degree or an individual of exceptional ability in the sciences, arts, or business. The updated guidance provides clarification on several key aspects:
- Advanced Degree Professionals: USCIS will assess whether the occupation related to the proposed endeavor qualifies as a profession and, if applicable, whether the required five years of post-bachelor's experience is in the specialty field.
- Individuals of Exceptional Ability: The guidance emphasizes that the exceptional ability must be directly related to the proposed endeavor. USCIS will evaluate the connection on a case-by-case basis, considering shared skill sets, knowledge, or expertise.
- National Importance of Proposed Endeavor: Additional information is provided on how USCIS evaluates whether a proposed endeavor has substantial merit and national importance.
- Evaluation of Evidence: The guidance elaborates on how USCIS assesses supporting evidence, such as letters of support and business plans, to determine if an individual is well-positioned to advance the proposed endeavor.
New Visa Restriction Policy Targets Officials Facilitating Illegal Immigration
The U.S. Department of State's Visa Office has announced a new visa restriction policy aimed at foreign government officials believed to be facilitating illegal immigration to the U.S., particularly through practices or policies allowing migrants to reach the U.S. southwest border.
Announced on March 5, 2025, the policy targets officials such as immigration and customs officers, airport and port authority officials, and others deemed responsible for knowingly aiding illegal migration. It complements the existing INA §212(a)(3)(C) policy, expanded in 2024, which addresses private sector actors involved in providing transportation and travel services to illegal migrants.
The policy's broad language may impact not only high-ranking officials but also lower-level officials and their families. Notably, the standard of proof required is mere belief by the adjudicating officer, and the alleged facilitation can include informal or unwritten practices.
President Trump Signs Executive Order Mandating Proof of Citizenship for Voter Registration
President Donald J. Trump signed Executive Order 14248, titled “Preserving and Protecting the Integrity of American Elections.” This order introduces measures aimed at enhancing the security and reliability of federal elections in the United States.
Key Provisions:
- Proof of Citizenship for Voter Registration: The order mandates that the Election Assistance Commission (EAC) revise the national mail voter registration form to require applicants to provide documentary proof of U.S. citizenship, such as a passport or government-issued identification.
- Ballot Receipt Deadline: States are directed to count only those mail-in ballots received by Election Day, discontinuing the acceptance of ballots postmarked by Election Day but arriving afterward.
- Enhanced Data Sharing for Voter Verification: Federal agencies, including the Department of Homeland Security (DHS) and the Social Security Administration, are instructed to provide state election officials with access to federal databases to assist in verifying the eligibility and citizenship status of individuals registering to vote.
- Enforcement of Voting Laws: The Attorney General is directed to prioritize the enforcement of laws prohibiting non-citizens from registering to vote or casting ballots, including coordinating with state attorneys general to assist with state-level reviews and prosecutions related to unlawful voting activities.
Rationale and Objectives:
President Trump Orders Crackdown on Immigration Attorneys Allegedly Abusing Legal System
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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