Easing the Nonimmigrant Visa Process for U.S. College Graduates
On July 15, 2024, the Department of State has clarified guidance regarding waivers of inadmissibility given to consular officers based on actions announced by the Biden-Harris Administration to more efficiently process employment-based nonimmigrant visas for those who have graduated from college in the United States and have a job offer.
The purpose of these clarifications is to explain when consular officers should consider recommending waivers of inadmissibility under INA section 212(d)(3) for these applicants on an expedited basis, in conjunction with visa applications overseas. All other processing steps remain the same, and waiver requests are adjudicated by the Department of Homeland Security, U.S. Customs and Border Protection’s Admissibility Review Office.
Individuals will still need to apply for a nonimmigrant visa after USCIS has approved the underlying immigrant visa petition (such as H-1B or other temporary work visas). There are several steps in the visa application process. The order of these steps and how applicants complete them may vary at the U.S. embassy or consulate where they apply. Applicants who are denied a visa will be notified by the consular officer of the relevant ground of ineligibility and whether they are eligible for a waiver of that ineligibility. Waivers are available for certain grounds of inadmissibility under Section 212(a) of the Immigration and Nationality Act.
USCIS Issues Policy Guidance on Children’s Acquisition of Citizenship
On July 18, 2024, USCIS announced updated guidance in the USCIS Policy Manual regarding provisions for children’s acquisition of citizenship in response to public feedback as well as the U.S. Supreme Court decision in Sessions v. Morales-Santana, 582 U.S. 47 (2017), as well as clarifying other provisions related to acquisition of citizenship.
The updated guidance is as follows:
Affirms that applicants who already filed an application for a Certificate of Citizenship and were denied but later become eligible for a Certificate following a change in USCIS policy, may file a motion to reopen the prior USCIS denial of their application.
Clarifies that a U.S. citizen parent may meet the requirement of physical presence in the United States (or outlying possession) before the child’s birth while in any immigration status, or no status.
Clarifies that in cases where a child is born out of wedlock to two U.S. citizen parents and cannot acquire U.S. citizenship from the father, the mother meets the requirement by demonstrating 1 year of continuous physical presence in the United States or one of its outlying possessions before the child’s birth.
Affirms that, for purposes of acquiring citizenship at birth, USCIS requires that a parent must be recognized as a legal parent of the child by the relevant jurisdiction at the time of the child’s birth.
Clarifies that a child acquires citizenship under statutes requiring all conditions to be met while the child is under 18 years of age if the last condition was satisfied on the day of the child’s 18th birthday. Similarly, a child is eligible to obtain citizenship under INA 322 if USCIS approves the application and the child takes the oath (if required) on the day of the child’s 18th birthday.
Confirms that USCIS accepts a valid and unexpired U.S. passport or a Consular Report of Birth Abroad (CRBA) as evidence of U.S. citizenship. However, USCIS also determines whether the applicant properly acquired U.S. citizenship and if necessary, may request that the Department of State revoke the U.S. passport or cancel the CRBA before USCIS adjudicates an application for a Certificate of Citizenship.
Clarifies processes when USCIS, in addition to an applicant’s claim of U.S. citizenship, adjudicates claims to U.S. citizenship for an applicant’s parents or grandparents (sometimes called “nested claims of U.S. citizenship”). When adjudicating applications for a Certificate of Citizenship, if an applicant’s parent or parents’ U.S. citizenship is unknown or unclear, the officer must determine the applicant’s parents’ (and, if necessary, grandparents’) U.S. citizenship status before adjudicating the applicant’s citizenship claim.
Clarifies that for purposes of an application for naturalization filed under the provision for children of a U.S. citizen who subjected them to battery or extreme cruelty, a stepchild’s relationship with the U.S. citizen stepparent does not need to continue to exist at the time of the application for naturalization.
The update also includes various changes to nationality charts in the Policy Manual. This guidance is effective immediately.
Extension and Redesignation of Yemen and Somalia for TPS
On July 8, 2024, the Department of Homeland Security announced the extension and redesignation of Yemen for Temporary Protected Status for 18 months, from September 4, 2024, to March 3, 2026. On July 19, 2024, DHS announced the extension and redesignation of Somalia for Temporary Protected Status for 18 months, from September 18, 2024, to March 17, 2026.
This extension allows current Yemeni TPS beneficiaries to retain TPS through March 3, 2026 and allows Somalian TPS beneficiaries to retain TPS through March 17, 2026, if they continue to meet TPS eligibility requirements. Current TPS beneficiaries who wish to extend their status through March 3, 2026 for Yemen and March 17, 2026 for Somalia, must re-register during the 60-day re-registration period from July 10, 2024 through September 9, 2024 for Yemen and from July 22, 2024 through September 20, 2024 for Somalia, to ensure they keep their TPS and employment authorization.
The Federal Register notices for Yemen and Somalia for these announcements provide information about registering for TPS as a new or current beneficiary under these extensions and redesignations. The Federal Register notice explains eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register and renew EADs, and for new applicants to submit an initial application under the redesignation and apply for an EAD.
This announcement also included a notice of Special Student Relief for F-1 nonimmigrant students whose country of citizenship is Yemen or Somalia, or individuals having no nationality who last habitually resided in Yemen or Somalia. Eligible students may request employment authorization, authorization to work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 status through the TPS designation period.
Individuals with a pending Form I-821, Application for Temporary Protected Status, or a related Form I-765, Application for Employment Authorization, as of the dates of these announcements do not need to file either application again. If USCIS approves a pending Form I-821 or Form I-765 filed under the previous designation of TPS for Yemen or Somalia, USCIS will grant the individual TPS through March 3, 2026 (Yemen) or March 17, 2026 (Somalia), and issue an EAD valid through the same date.
Under the redesignation of Somalia, eligible individuals who do not have TPS may submit an initial Form I-821, Application for Temporary Protected Status, during the initial registration period that runs from July 22, 2024 through March 17, 2026. Applicants also may apply for TPS-related EADs and for travel authorization. Applicants can request an EAD by submitting a completed Form I-765 with their Form I-821, or separately at a later date.
USCIS Will Conduct Second Random Selection for Regular Cap from Previously Submitted FY 2025 H-1B Cap Registrations
On July 30, 2024, USCIS announced that they would need to select additional registrations for unique beneficiaries to reach the FY 2025 regular cap numerical allocation. USCIS announced that this second selection was completed on August 5, 2024. According to this announcement, USCIS has selected additional registrations for unique beneficiaries from previously submitted electronic registrations using a random selection process and has notified prospective petitioners with selected registrations from this second round of selection that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.
The initial random selection of those registered in the FY2025 H-1B lottery took place in March, including for beneficiaries eligible for the advanced degree exemption. Only those petitioners with selected registrations for FY 2025 are eligible to file H-1B cap-subject petitions during the filing period on their registration selection notice. Previously selected registrants for FY 2025 were required to file their petitions between April 1 and June 30, 2024. Those selected in the second round will be required to file their petitions between August 8, 2024 and November 7, 2024.
USCIS has confirmed that there will not be a second selection for the advanced degree exemption (the master’s cap), as enough master’s cap registrations were already selected, and sufficient petitions were received based on those registrations as projected to meet the FY 2025 masters cap numerical allocation. The second round of selection for the regular cap only includes previously submitted registrations that indicated eligibility for the master’s cap along with those that indicated only eligibility for the regular cap.
Those with selected registrations should receive updates via their USCIS online accounts updated to include a selection notice, which includes details of when and where to file
Visa Bulletin - July 2024
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all “preference” categories and states whether a backlog exists for each one. In addition, categories are folded into two charts: a “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
In July, the EB-1 preference category on the Final Action Chart remains current for all countries other than China and India. The EB-1 priority dates for China and India for July are November 1, 2022, and February 1, 2022, respectively.
U.S. Citizenship and Immigration Services (USCIS) determined that Chart A (Final Action Dates Employment-Based Visa Applications) must be used. Both the EB-2 and EB-3 preference categories remain backlogged for all countries, which means that individuals in these categories may not file Form I-485 applications until their priority dates become “current.”
The complete Visa Bulletin, including priority dates for family-based immigrant applications, can be found on the Department of State website.
If you have questions about planning, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
NOTE: The DOS just released the August Visa Bulletin in which they indicate that it is likely that EB3 preference category will either retrogress or become unavailable in September.
Redesignation Allows Additional Newly Eligible Yemeni Nationals to Apply for TPS and Employment Authorization Documents
DHS announced the extension and redesignation of Yemen for TPS for 18 months, from September 4, 2024, to March 3, 2026, due to country conditions in Yemen that prevent individuals from safely returning. The redesignation allows an estimated 1,700 Yemeni nationals (and individuals having no nationality who last habitually resided in Yemen) who have been continuously residing in the U.S. since July 2, 2024, to file initial applications for TPS, if they are otherwise eligible. The extension and redesignation do not apply to anyone who was not already in the U.S. on July 2, 2024.
Individuals who already have TPS and want to extend their status through March 3, 2026, must re-register during the 60-day re-registration period from July 10, 2024, through September 9, 2024, to ensure they keep their TPS and employment authorization. Eligible individuals who do not have TPS may submit an application during the initial registration period that runs from July 10, 2024, through March 3, 2026.
USCIS Extends Certain TPS Work Permits Through March 9, 2025
The work authorization of Temporary Protected Status (TPS) beneficiaries under the designations of El Salvador, Honduras, Nepal, Nicaragua, and Sudan are being extended through March 9, 2025. USCIS will issue Form I-797, Notice of Action, to TPS beneficiaries who are eligible to re-register for TPS or have a pending application to renew their Form I-766, Employment Authorization Document (EAD). The notice further extends the validity of their EAD through March 9, 2025. Employees may show their Form I-797, along with their TPS-based EAD (EAD with an A12 or C19 code), to any U.S. employer as proof of continued work authorization through March 9, 2025. After a new employee has completed Form I-9, Employment Eligibility Verification, employers must create a case in E-Verify for the employee. Employers should enter the EAD document number that was entered on Form I-9, as well as the automatically extended date of March 9, 2025. Employers must reverify these employees on Form I-9 before they start work on March 10, 2025.
Recent Developments with the Adjudication of Certain TN Applications in Mexico
Since October 2023, stakeholders have reported an increase in TN denials (both initial applications and renewals) at all three TN processing posts in Mexico which includes Mexico City, Guadalajara, and Ciudad Juarez. Certain occupational categories appear to be impacted namely agriculture, food safety, and some fields of engineering including auto. Some practitioners have theorized that the change in adjudication patterns is due to a 2023 “harmonization” process for TN adjudications that took place across all three posts. Though the DOS has not issued a definitive explanation for the reported denials, employers are reminded to send their employees to the Consulate with a well-documented application. Applications should be accompanied by evidence that the employee is fully qualified for the professional role and that the job duties align with the TN occupational category requested.
Key Takeaways:
The TN is only available for a narrow list of approved professional occupations. Before sending an employee to one of the Mexican Consulates for a TN, ensure that the job offered is a professional one that fits within one of the approved TN occupational categories and remind the employee that they should familiarize themselves with the requirements of the TN occupation they are applying for.
Link: For a full list of TN approved occupations and their respective requirements: CFR-2012-title8-vol1-sec214-6.pdf (govinfo.gov)
DOJ Reaches Settlement with Staffing Agency for Discrimination Against Noncitizens
The Department of Justice (DOJ) announced a settlement agreement with Selective Personnel Inc. (SPI), a California staffing agency. The DOJ had determined that SPI’s predecessor business entity, South Bay Safety (SBS), violated the Immigration and Nationality Act (INA) by regularly discriminating against non-U.S. citizens when checking their permission to work in the U.S. SBS was found to have required non-U.S. citizens to present specific types of documentation reflecting their immigration status to prove their permission to work while U.S. citizens were permitted to present any acceptable document as itemized on the list of acceptable documents. SPI was determined to be a successor in interest to SBS and liable for the violations. Per the settlement agreement, SPI will pay civil penalties, train employees on the INA’s requirements, revise its employment policies, and be subject to departmental monitoring.
Increased Login Security for E-Verify and SAVE
DHS announced on June 17, 2024, that login security will be enhanced for E-Verify and Systematic Alien Verification for Entitlements later this year. E-Verify browser users will begin using Login.gov to log into E-Verify. A multi-factor authentication process will be implemented and required, rather than the system just requiring a password for access. For example, along with the password, users may be asked to enter a code sent to their email or phone. The Agency states that these enhancements are being rolled out to reduce the risk of unauthorized account access due to human error, misplaced passwords, and lost devices.
Link: E-Verify is Enhancing Security for Account Login | E-Verify