OFLC Announces Upcoming Final Decommission of Permanent Online System

• On August 7, 2024, the Department of Labor’s Office of Foreign Labor Certification (OFLC) alerted employers and other interested stakeholders that the legacy Permanent (PERM) Online System, which provides public access to permanent labor certification applications and final determinations, will be fully decommissioned on December 1, 2024. The Foreign Labor Application Gateway (FLAG) System replaces the legacy Permanent Online System.

• OFLC indicated that on December 1, 2024, the legacy Permanent Online System will no longer be accessible to account holders and the general public will be redirected to the FLAG System. Stakeholders who require documents from their Permanent Online System accounts are strongly encouraged to access and download those documents well in advance of December 1, 2024. Permanent Online System account holders who need to upload documents or request a specific case action on an application submitted in the Permanent Online System (e.g., request reconsideration, withdraw applications, etc.) should complete action in the system by November 30, 2024, at 7 PM EST.

• Additionally, applications still pending in the Permanent Online System after November 30, 2024, will continue to be processed by OFLC. Starting December 1, 2024, stakeholders who need to submit a response to the Department, upload documents, or request a specific case action on an application that was submitted in the Permanent Online System must do so by email, sent to the PLC Help Desk at PLC.Help@dol.gov. Documents should be submitted as PDF attachments and named with the case number assigned and title of the attachment. After November 30, 2024, stakeholders with applications pending in the Permanent Online System will not be able to upload documents directly. Employers and their attorney/agents should continue to check their email for correspondence and notifications related to these pending applications.

DC Circuit Court Upholds H-4 Spousal Work Authorization

A D.C. Circuit Court ruling in Save Jobs USA v. DHS upheld the authority of the Department of Homeland Security (DHS) to grant work authorization to H-4 spouses of certain H-1B workers. Save Jobs USA had challenged DHS’s authority to issue a rule that allows certain visa holders to work in the United States. The court said it had already interpreted the relevant provisions of the immigration statute to answer a similar question in favor of DHS in Washington Alliance of Technology Workers v. DHS, 50 F.4th 164 (D.C. Cir. 2022) (“Washtech”). “Because Save Jobs USA has not meaningfully distinguished this case from that binding precedent, we affirm the district court’s grant of summary judgment,” the court said.

Institute of International Education – Key Takeaways from IIE’s Spring 2024 Snapshot

• The Institute of International Education (IIE) released its Spring 2024 Snapshot on International Educational Exchange, and it revealed some promising data points on the continuing growth of international education initiatives at U.S. universities. The report is based on a survey of 662 participants (higher education institutions in the U.S.), explores data and trends related to current and prospective international students at U.S. institutions and U.S. study abroad participation and program development.

• Some of the key findings were:

  • 53% of the respondents reported that international applications were up compared to 2023, while 30% stated that the numbers had stayed the same.

  • 61% of the respondents from associate’s colleges and 58% of master’s colleges and universities reported an increased in international student applications.

  • The top markets being prioritized for international undergraduate student recruitment are currently Canada, China, India, South Korea, and Vietnam.

  • With respect to education abroad, 94% of the participants anticipate increase or stable participation numbers in the coming academic year.

USCIS Updates Guidance for F/M Nonimmigrant Student Classification

On August 27, 2024, US Citizenship and Immigration Services (USCIS) announced that they were updating guidance in the USCIS Policy Manual regarding when students may be eligible for optional practical training (OPT) extensions for Science, Technology, Engineering, and Mathematics (STEM) fields. This guidance, found in Volume 2, Part F, of the Policy Manual, also provides clarifying guidance for F/M nonimmigrant students concerning online study, school transfers, the grace period, and study abroad. The Policy Manual Update:

• Clarifies that students may count one class or three credits (or the equivalent) per academic session (or the equivalent) toward a full course of study if they take the class online or through distance learning not requiring physical attendance for any purpose integral to completion of the class.

• Explains that students may transfer between U.S. Immigration and Customs Enforcement (ICE), Student and Exchange Visitor Program (SEVP)-certified, schools at the same educational level, or move between educational levels.

• Explains that, during the 60-day grace period following an authorized period of post-completion of OPT, students may change their education level, transfer to another SEVP-certified school, or file an application or petition with USCIS to change to another nonimmigrant or immigrant status.

• Clarifies that students may be eligible for post-completion OPT after completion of an associate’s, bachelor’s, master’s, or doctoral degree program.

• Corrects the period during which students may apply for STEM OPT extensions and makes other technical corrections.

• Clarifies that a student enrolled in a SEVP-certified school during a study abroad program may remain active in the Student and Exchange Visitor Information System if the study abroad program lasts less than five months, but that the student will need a new Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, if the program lasts longer than five months.

This guidance became effective immediately and applies to requests pending or filed on or after the publication date.

Department of State Issues Final Rule on Effect of Certain Pardons on Criminal-Related Grounds of Ineligibility

The Department of State (DOS) has amended a regulation relating to the effect of certain pardons on criminal-related grounds of visa ineligibility. The amended rule went into effect on August 22, 2024, and changes the existing regulation “to implement the plain meaning of statutory authorities and the President’s constitutional authority regarding the effect of pardons on inadmissibility under INA sections 212(a)(2)(A)(i) and 212(a)(2)(B).” The rule “conveys [DOS’s] interpretation of Congress having expressly not provided an exception to inadmissibility based on a pardon, reflecting a plain reading of the inadmissibility ground in INA section 212(a)(2)(A)(i) that multiple courts have shared.” DOS found that the rule is “interpretative” and amends visa policy as a “foreign affairs function of the United States” and is therefore not subject to notice-and-comment requirements.

Department of State Releases FY 2025 Diversity Visa Results

In the September Visa Bulletin, the US State Department included results from the diversity visa (DV) lottery for fiscal year (FY) 2025 (October 1, 2024, to September 30, 2025). The Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the approximately 131,060 selectees who are eligible to participate. The bulletin notes that those selected “will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letter and must fully complete all required steps.” Many more were selected than can receive visas (55,000) to account for factors such as some selectees not completing their cases or being found ineligible for a visa.

Parole Process for certain nationals of Cuba, Haiti, Nicaragua, and Venezuela (CHNV) Paused and then Resumed with more Rigorous Vetting Procedures for Supporting Sponsor

The Department of Homeland Security (DHS) temporarily paused the issuance of advance travel authorizations (ATAs) for new Cuban, Haitian, Nicaraguan, and Venezuelan beneficiaries while it reviewed the supporter application process. The review has since been completed and DHS has resumed processing of ATAs. As part of an internal review, DHS has implemented updated safeguards to the CHNV processes, incorporating rigorous enhanced vetting in the supporter application process. Potential CHNV beneficiaries should continue to monitor their myUSCIS account for updated information regarding their ATAs. Individuals with a valid, unexpired ATA are permitted to travel.

Keeping Families Together Program Has Begun as of August 19, 2024, and a Lawsuit Has Been Filed Against the Program as of August 23, 2024

On August 19, 2024 the Department of Homeland Security (DHS) published a Federal Register notice to implement Keeping Families Together Parole-in-Place program, a process for certain noncitizen spouses and stepchildren of U.S. citizens to obtain “parole,” a temporary three year status that would provide the recipient with the ability to remain in the U.S., apply for work authorization, as well as creating a pathway to obtain a green card from within the U.S. USCIS has begun accepting applications for this program. However, on August 23, 2024, Texas and other states filed a lawsuit challenging the program in the U.S. District Court for the Eastern District of Texas (Texas v. Department of Homeland Security, Case No. 24-cv-306). On August 26, 2024, the court issued an administrative stay that orders USCIS to halt approvals for 14 days but allows USCIS to continue to receive applications and conduct biometrics appointments.

IDC was mentioned in Steven Wasserman's Forbes article!

Click the link below to read more!

Link: https://www.forbes.com/sites/stevenwasserman/2024/08/15/hidden-talent-case-for-hiring-international-masters-stem-graduates/?

Visa Bulletin - August 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, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.

In August, 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 August 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) could be used in August. 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 August Visa Bulletin noted that demand and number use has remained high in the EB-3 visa category.  Although retrogression has not been necessary for August, it will likely be necessary to either retrogress the final action date or make the category “Unavailable” in September. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

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).