October 27, 2023 - Weekly Immigration News Update

Posted by Keshab R. Seadie | Oct 27, 2023 | 0 Comments

Dear Clients & Subscribers,

We have some important updates from the USCIS regarding the EB-5 Regional Center Program, H-1B visa lottery, J-1 and L-1 visas. In our commitment to keeping you informed, we want to share the latest changes with you.

Department of Homeland Security Proposes Modernization of H-1B Visa Program

In a significant development, the Department of Homeland Security (DHS) has initiated a proposed rulemaking process to modernize the H-1B specialty occupation worker program. U.S. Citizenship and Immigration Services (USCIS) has published a Notice of Proposed Rulemaking (NPRM) aimed at enhancing program efficiency, strengthening integrity measures, and providing greater benefits for employers and workers.  

The H-1B program, designed to enable U.S. employers to hire foreign workers in specialized occupations, is set to undergo substantial updates through this proposed rule. 

Key highlights include:

Streamlining Eligibility Requirements: The proposed rule will revise criteria for specialty occupation positions to reduce confusion and clarify that a position may allow a range of degrees, provided there is a direct relationship between the required degree field(s) and the position's duties.

Improving Program Efficiency: USCIS will codify that adjudicators should generally defer to prior determinations when no underlying facts have changed during a new filing.  

Providing Greater Benefits and Flexibilities: The rule will expand certain exemptions to the H-1B cap for nonprofit entities, governmental research organizations, and beneficiaries not directly employed by a qualifying organization. Additionally, it will extend flexibilities for F-1 visa students seeking to change their status to H-1B. New H-1B eligibility requirements for rising entrepreneurs will also be introduced.  

Strengthening Integrity Measures: To reduce misuse and fraud, related entities will be prohibited from submitting multiple registrations for the same beneficiary. USCIS' authority to conduct site visits will be codified, with non-compliance potentially resulting in petition denial or revocation. 

One notable change in the proposed rule is the modification of the H-1B registration selection process to prevent misuse and fraud. Each unique individual will have one entry in the selection process, regardless of the number of registrations submitted on their behalf, enhancing the chances of legitimate registrations being selected. This proposed rule aims to align the H-1B program with the evolving needs of U.S. employers, ensure fairness in the selection process, and enhance program integrity. 

The 60-day public comment period will begin after the NPRM's publication in the Federal Register. Stay tuned for further developments as stakeholders, immigration experts, and the public weigh in on these proposed changes to the H-1B program. 

USCIS Updates Guidance on EB-5 Regional Center Program

The USCIS Policy Manual is receiving an update with fresh guidance on the EB-5 Regional Center Program, covering topics such as regional center designation and obligations, project applications, and the roles of direct and third-party promoters.

This update is a result of the EB-5 Reform and Integrity Act of 2022, which introduced changes into the Policy Manual last year. The current update reorganizes Part G, Volume 6 of the Policy Manual, with a few revisions to reflect the new organization. It also introduces new content on regional center designations and obligations, project applications, and direct and third-party promoters, including registration.

Stay tuned for more updates on EB-5 guidance in the Policy Manual, including revisions to Chapter 5, Removal of Conditions. This new guidance is in effect immediately, and it replaces any prior related guidance.

USCIS Issues Policy Guidance Regarding the 2-Year Foreign Residence Requirement for the J Nonimmigrant Classification

In another significant development, U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance in the USCIS Policy Manual regarding the 2-year foreign residence requirement for the nonimmigrant exchange visitor (J) classification.

This update provides information on how USCIS determines whether the requirement has been met, what evidence a benefit requestor may submit to demonstrate compliance, and how it handles situations where it is practically impossible for the benefit requestor to fulfill the requirement.

Additionally, this update corrects an omission in the existing Policy Manual content regarding foreign medical graduates' grounds for waivers of the foreign residence requirement. It includes this ground and clarifies employment requirements.

Please note that this guidance is effective immediately upon publication. The J-1 nonimmigrant classification is designed for exchange visitors participating in approved programs in the United States for various educational and professional purposes.

USCIS Clarifies Policy on L-1 Petitions

Lastly, USCIS has issued policy guidance clarifying the eligibility of sole proprietorships to file L-1 petitions on behalf of their owners. The guidance emphasizes that a sole proprietorship is not considered a distinct legal entity separate from its owner, and thus, it cannot file a petition on behalf of its owner.

This update reaffirms existing guidance and distinguishes between sole proprietors and self-incorporated petitioners like corporations or single-member limited liability companies, which are separate legal entities that can petition for their owners.

Additionally, the update provides clarity regarding blanket petitions filed by international organizations and confirms that the failure to timely file an extension of the blanket petition does not trigger the 3-year waiting period before another blanket petition can be filed.

This guidance, found in Volume 2 of the Policy Manual, is effective immediately and supersedes any prior related guidance. The L-1 nonimmigrant visa classification allows U.S. employers within qualifying organizations to temporarily transfer employees from foreign offices to locations in the United States.

How to change L-1B visa to L-1A visa

L1-B and L1-A visas are work visas for people from other countries to work in the USA. These visas have time limits, and when they expire, you must either leave the USA or find another way to stay. If you're working in the USA on an L1-A visa, it might expire before your job finishes. In such cases, you might wonder if you can change it to an L1-B visa to keep working here. Whether that's possible depends on your situation and if you meet the visa requirements. 

For L1-B visas, you need to have specialized knowledge related to your company's interests. You must have worked for your foreign employer for at least one year out of the past three years. Your purpose in the USA should be to share this specialized knowledge with the company's U.S. branch. This visa allows you to stay for up to five years, but you may need to renew it. 

L1-A visas are for managers and executives being transferred within a company. To qualify, you should have worked for the company for one year out of the past three years and intend to work in a managerial or executive role in the USA. 

 If you have an L1-B visa and want to change it to L1-A, it's usually possible if you get promoted to a managerial or executive position at least six months before your L1-B visa expires. It's important to keep track of your time in the USA, as you can sometimes add time spent outside the country to your visa duration. Applying for this change early and using premium processing is recommended to avoid any issues with your status. Staying in the USA unlawfully can complicate your immigration situation.

We hope you find this information valuable and stay updated with these USCIS policy changes. If you have any questions or need assistance with immigration matters, please don't hesitate to reach out to our dedicated team at the Law Offices of Keshab Raj Seadie, P.C. We are here to help you navigate the evolving immigration landscape.


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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