Dear Clients and Subscribers,
We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters that may impact your status or eligibility. Please take a moment to review the following key highlights:
2nd Round of H-1B Filing Deadline is Approaching
The second filing period for the Fiscal Year (FY) 2024 H-1B cap season is set to close on October 31, 2023. If you or your employer plan to file an H-1B petition, make sure to meet this deadline.
Venezuela Gets TPS Extension
The Department of Homeland Security (DHS) has extended Temporary Protected Status (TPS) for Venezuela from March 11, 2024, to September 10, 2025. Additionally, Venezuela has been redesignated for TPS from October 3, 2023, to April 2, 2025.
Supreme Court Denies Cert to WashTech Case
The Supreme Court recently denied certiorari in the WashTech case, upholding the District Court decision on Optional Practical Training (OPT) regulations. This is a significant victory for Students or F-1 visa holders.
New Filing Address for Form I-129
USCIS has changed the service center filing locations for several visa categories. Ensure that you file your Form I-129 petitions at the correct location to avoid issues. The change is effective as of October 1, 2023, with a 60-day grace period for filings mailed to the previous service centers.
USCIS Updates Guidance on Evidence for EB1 Filings
USCIS has released updated guidance on evidence for EB1 immigrant petitions, specifically for individuals with extraordinary ability (EB1(b)). This guidance provides clarity on evidence types and their significance in the application process.
Eligibility for EB1(a) or EB1(b) immigrant categories requires a foreign national to satisfy a high evidentiary burden and prove he or she meets 3 out of 10 set criteria but also meets the intrinsic merit test. In the absence of clear guidance regarding what evidence would be sufficient, a petitioner would often be uncertain of the relative strength of a filing. By adding detailed instructions to its Policy Manual, the USCIS provides a better roadmap for presenting stronger EB1 petition filings.
Highlights of the New Guidance
The updated policy guidance details the evidence that may satisfy the required evidentiary criteria for EB1(A) or EB1(B) petitions, respectively, and includes examples of specific evidence and qualifying comparable evidence. The guidance also explains how a USCIS officer will evaluate certain evidence, particularly for the science, technology, engineering, or mathematics (STEM) fields. The Biden administration has recognized the importance of such STEM professionals for U.S. leadership in this field and their impact on the U.S. economy.
The updated guidance goes through each of the ten basic criteria used to determine eligibility for EB1(a) and six basic criteria used to determine eligibility for EB1(b), and discusses how that criterion will be evaluated by the USCIS. The updated guidance further provides examples for each and discusses how officers are to evaluate the criterion. Moreover, the update includes a discussion of possible comparable evidence to establish eligibility.
Understanding H-1B Revocation and Amended Petitions
We provide an in-depth explanation of H-1B revocation and when to file an amended H-1B petition. Compliance with H-1B requirements is crucial to avoid potential legal consequences.
What is an H-1B Revocation and when to file an amended H-1B Petition?
As you may know from our last Webinar, U.S. immigration policies regarding H-1B visas required employers to file an amended H-1B petition when there was a significant change in the employee's work location. Failure to do so could potentially lead to H-1B revocation or other legal consequences.
USCIS may revoke an H-1B petition at any time, even after the expiration of the petition, subject to the conditions set forth in Title 8, Code of Federal Regulations (8 CFR) section 214.2(h)(11) (iii)(A). 8 CFR 214.2(h)(11)(iii)(A), indicates that:
Grounds for revocation: The director shall send to the petitioner a notice of intent to revoke the petition in relevant part if he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the beneficiary is no longer receiving training as specified in the petition; or
(2) The statement of facts contained in the petition or on the application for a temporary labor certification was not true and correct, inaccurate, fraudulent, or misrepresented a material fact; or
(3) The petitioner violated terms and conditions of the approved petition; or
(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act or paragraph (h) of this section; or
(5) The approval of the petition violated paragraph (h) of this section or involved gross error.
8 CFR 214.2(h)(11)(i)(A) provides for the following regarding your obligation to notify USCIS of changes in the terms and conditions of employment:
The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form 1-129 should be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition. However, H-2A and H-2B petitioners must send notification to DHS pursuant to paragraphs (h)(5)(vi) and (h)(6)(i)(F) of this section respectively.
8 CFR 214.2(h)(2)(i)(E) states the following regarding amended petitions:
Amended or new petition. The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien's eligibility as specified in the original approved petition. An amended or new H-1C, H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application.
20 CFR, section 655.730(c)(4)(v) states that each LCA shall state the place(s) of intended employment. 20 CFR 655.715 defines an area of intended employment as:
Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of employment is within a Metropolitan Statistical Area (MA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment; however, all locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distance. The borders of MSAs and PMSAs are not controlling with regard to the identification of the normal commuting area; a location outside of an MSA or PMSA (or a CMSA) may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA or PMSA (or CMSA).
Diversity Visa Program (DV-2025) or Green Card Lottery
The DV-2025 program is now open for online registration until November 7, 2023. Learn about eligibility criteria and the application process for a chance to secure a Diversity Visa.
Instructions for the 2025 Diversity Visa Program (DV-2025)
What is the Diversity Visa Lottery?
The U.S. Department of State runs the Diversity Immigrant Visa Program every year. This program, established by law, is designed to offer visas to immigrants from countries that historically have low immigration rates to the United States. For the year 2025, there are up to 55,000 Diversity Visas (DVs) available. It's important to note that there is no fee to enter the DV program.
For the 2025 cycle, the following countries are not eligible to apply due to high rates of immigration to the United States in the last five years:
Bangladesh, Brazil, Canada, China*(including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), United Kingdom (except Northern Ireland) and its dependent territories, Venezuela, and Vietnam. (*Natives of Macau SAR and Taiwan are eligible)
Am I Eligible?
To qualify for a DV, applicants, also known as selectees, must meet straightforward but strict eligibility criteria. The Department of State selects these selectees through a random computer drawing. They ensure that the available diversity visas are spread across six different geographic regions, and no single country can receive more than seven percent of the available DVs in a single year.
Requirement #1: Where You're From:
To be eligible for this program, you should be from a country that has not sent many immigrants to the United States historically. If you're not from such a country, there are two other ways you might qualify: If your spouse is from a low-immigration country, you can claim their country of birth, but you both must be eligible, receive diversity visas, and enter the U.S. together. If neither of your parents was born or legally residing in your birth country, and that country is eligible, you can claim your parent's country.
Requirement #2: Education or Work Experience:
Every DV applicant must meet the education or work experience criteria: You need at least a high school education or an equivalent of 12 years of school. OR You should have two years of work experience in the past five years in a job that requires at least two years of training or experience. The U.S. Department of State will check this using the U.S. Department of Labor's O*Net Online database.
How to Complete Your DV-2025?
Entry Submit Your Entry Form: Go to dvprogram.state.gov and complete the Electronic Diversity Visa Entry Form (E-DV Entry Form or DS-5501) online. Only entries submitted through this official website are accepted, and it's free to do so. Make sure to use an updated web browser for the best experience.
Once you've submitted a complete entry, save the confirmation screen with your name and unique confirmation number. Starting May 6, 2023, visit dvprogram.state.gov and go to "Entrant Status Check" to check your entry's status. This is how you'll know if you're selected for DV-2025 and receive instructions. Remember, the U.S. government won't contact you directly; "Entrant Status Check" is your only source for guidance. If you're selected and submit a visa application, use it to check your immigrant visa interview date.
- Do It Yourself: The Department of State recommends completing the entry form yourself without assistance from a "visa consultant" or anyone else. If you do receive help, be present during the process to provide accurate answers and safeguard your unique confirmation number and confirmation screen printout.
- Protect Your Confirmation Information: Keep a printout of your confirmation page and unique confirmation number. Some dishonest individuals have taken entrants' confirmation printouts and demanded more money for the confirmation number, which is crucial for checking your entry status.
- Use a Valid Email: Ensure the email address you provide is one you have access to and will continue to have access to through May of the following year. This is important for receiving updates if you are selected for the DV program.
- Provide Accurate Information: Include all required information accurately; failure to do so will make you ineligible for a DV. This includes details such as your name (as it appears on your passport), gender, birthdate, birthplace, current country of residence, phone number (optional), education level, and marital status.
- Include Your Family: List all living, unmarried children under 21 years old, even if they don't live with you or plan to immigrate with you. Submit individual photographs of each child that meet the technical specifications.
- Check Your Entry Status: After submitting a complete entry, you'll receive a confirmation screen with your name and a unique confirmation number. Print this screen for your records. Starting May 6, 2023, you can check your entry status at dvprogram.state.gov using your confirmation number and personal information.
- Follow Entrant Status Check: Entrant Status Check is the only source for instructions on how to proceed with your DV application. The U.S. government won't inform you directly. Remember, accuracy and honesty are crucial when completing your entry to the DV-2024 Program.
Thank you for entrusting us with your immigration matters. We are here to assist you with any questions or concerns you may have. Stay informed, stay compliant, and stay on track toward achieving your immigration goals.
Keshab Raj Seadie,
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.