USCIS Updates Guidance on Flexibilities Available in Emergencies or Unforeseen Circumstances
USCIS updated its Policy Manual to clarify flexibilities that may be available to applicants requesting immigration benefits while facing an emergency or unforeseen circumstance. The update explains that during certain emergencies the Agency may exercise its discretion to implement flexibilities relating to requests for extension of stay and change of status; applications for employment authorization; requests for document replacement; abandonment or failure to respond to requests for evidence; fee waivers; expedited processing; and satisfactory departure.
Emergencies and unforeseen circumstances may include:
Natural disasters (for example, hurricanes, wildfires, or other severe weather);
National emergencies (for example, public health emergencies);
Conflicts abroad; or
Other unforeseen circumstances (for example, terrorist attacks, mass shootings, or cyber-attacks) that may present unanticipated challenges.
For example, the Agency may exercise its discretion for certain students and:
Suspend limitations on employment, authorize off-campus work, or a reduced course load;
Permit students who fail to maintain their F-1 or M-1 nonimmigrant status to apply for reinstatement to student status if otherwise eligible;
Allow exchange visitors who fail to maintain their J-1 nonimmigrant status to request reinstatement under U.S. Department of State regulations; and
If otherwise eligible, qualify F-1 students experiencing severe economic hardship for off-campus employment authorization or other relief.
Link: Chapter 2 - Emergencies or Unforeseen Circumstances-Related Flexibilities | USCIS
Report on Federal and State Tax Contributions by Undocumented Immigrants
The Institute on Taxation and Economic Policy, a non-profit, non-partisan tax policy organization, analyzed data on federal, state, and local tax payments made by undocumented immigrants nationwide. The resulting report contains estimates of the overall tax contributions of the approximately 10.9 million undocumented immigrants living in the U.S. as of 2022, as well as state-by-state estimates for those immigrants’ payments of state and local taxes. The report also forecasts the growth in tax contributions that would occur under a scenario in which these taxpayers were granted work authorization.
Report Highlights
Undocumented immigrants paid $96.7 billion in federal, state, and local taxes in 2022. Of that, $59.4 billion went to the federal government and $37.3 billion was paid to state and local governments.
Undocumented immigrants paid federal, state, and local taxes of $8,889 per person in 2022. In other words, for every 1 million undocumented immigrants who reside in the country, public services receive $8.9 billion in additional tax revenue.
More than a third of the tax dollars paid by undocumented immigrants go toward payroll taxes dedicated to funding programs that these workers are barred from accessing. Undocumented immigrants paid $25.7 billion in Social Security taxes, $6.4 billion in Medicare taxes, and $1.8 billion in unemployment insurance taxes in 2022.
At the state and local levels, slightly less than half (46 percent, or $15.1 billion) of the tax payments made by undocumented immigrants are through sales and excise taxes levied on their purchases. Most other payments are made through property taxes, such as those levied on homeowners and renters (31 percent, or $10.4 billion), or through personal and business income taxes (21 percent, or $7.0 billion).
Six states raised more than $1 billion each in tax revenue from undocumented immigrants living within their borders: California ($8.5 billion), Texas ($4.9 billion), New York ($3.1 billion), Florida ($1.8 billion), Illinois ($1.5 billion), and New Jersey ($1.3 billion).
In a large majority of states (40), undocumented immigrants pay higher state and local tax rates than the top 1 percent of households living within their borders.
Income tax payments by undocumented immigrants are affected by laws that require them to pay more than otherwise similarly situated U.S. citizens. Undocumented immigrants are often barred from receiving meaningful tax credits and sometimes do not claim refunds they are owed due to lack of awareness, concern about their immigration status, or insufficient access to tax preparation assistance.
Providing access to work authorization for undocumented immigrants would increase their tax contributions both because their wages would rise and because their rates of tax compliance would increase. Where work authorization provided to all current undocumented immigrants, their tax contributions would rise by $40.2 billion per year to $136.9 billion. Most of the new revenue raised ($33.1 billion) would flow to the federal government while the remainder ($7.1 billion) would flow to states and localities.
The U.S. stands to lose $8.9 billion in tax revenue for every 1 million undocumented immigrants who are sent out of this country under a program of mass deportation.
Department of State Updates Countries on J-1 Skills List for First Time Since 2009
On December 9, 2024, the Department of State (DOS) updated the J-1 Exchange Visitors Skills List by removing more than 30 countries. The list determines whether a J-1 visa visitor is subject to the foreign residence requirement that requires them to return to their home country for two years after completion of their J-1 program. J nonimmigrant exchange visitors from countries who were subject to the foreign residence requirement based on the skills list in the past no longer need to return to their countries for two years after their studies in the United States. DOS is not updating the skills on the list, just those countries that are subject. The revision applies retroactively to individuals who were admitted in J status or obtained J status before December 9, 2024.
Individuals with pending waiver applications who are nationals of countries removed from the skills list should no longer need a 212(e) waiver and should be able to proceed with adjustment of status / visa processing without the waiver. DOS has been notifying impacted applicants of the termination of the 212(e) waiver application.
Importantly, a J-1 visitor may still be subject to the two-year home residency requirement if they received funding from the U.S. government or their home country government, or if they have received graduate medical education or training in the United States.
Countries Removed from Skills List
Albania, Algeria, Argentina, Armenia, Bahrain, Bangladesh, Bolivia, Brazil, Chile, China, Colombia, Congo, Costa Rica, Dominican Republic, Gabon, Georgia, Guyana, India, Indonesia, Kazakhstan, Laos, Malaysia, Mauritius, Montenegro, Namibia, Oman, Paraguay, Peru, Romania, Saudi Arabia, South Africa, South Korea, Sri Lanka, Eswatini (Swaziland), Thailand, Trinidad and Tobago, Turkey, United Arab Emirates, and Uruguay.
Link: Federal Register: Public Notice of Revised Exchange Visitor Skills List
DHS Issues New Rule: “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers”
The Department of Homeland Security announced a final rule on December 17, 2024, implementing significant changes to the H-1B program which allows U.S. employers to temporarily employ foreign workers in specialty occupations. While most of the changes affect H-1B workers, there are also provisions that impact other nonimmigrant classifications. Highlights of the final rule which becomes effective on January 17, 2025, are:
New I-129 Form, Petition for Nonimmigrant Worker
A new Form I-129 will be required as of 1/17/2025. There will not be a grace period allowing for submission of prior editions of the form.
H-1B Specialty Occupation Definition
The definition and criteria for specialty occupation positions was modified to emphasize the importance of considering the “beneficiary’s actual course of study” rather than just the title of their degree. A position can only be classified as an H-1B “specialty occupation” if it requires the theoretical and practical application of a body of highly specialized knowledge and requires at least a bachelor’s degree in a “directly related” specific specialty, or its equivalent. A generalized degree is insufficient; however, employers may accept a range of qualifying fields so long as the fields are related to the job duties. The rule clarifies that an occupation “normally” requiring a bachelor’s degree doesn’t mean that it must “always” require a bachelor’s degree but there must be a “logical connection” between the degree and position offered.
H-1B Cap Exemptions
DHS clarified and simplified eligibility for exemption from the annual cap on H-1Bs visas. Non-profits or governmental research organizations no longer need to be “primarily engaged” in research to be cap exempt.
Definition of Employment and Third-Party Worksites
The new rule replaces the existing regulation’s focus on the employer-employee relationship with a requirement to establish the existence of a bona fide job offer in a specialty occupation as of the requested start date. The definition of U.S. employer has been expanded enabling owner-beneficiaries to petition for themselves. The itinerary requirement has been eliminated. Petitioners are no longer required to submit specific day-to-day assignments for the full validity period but must demonstrate that the position will exist by the start date. USCIS has formalized the requirement for contracts, statements of work, and client letters to confirm bona fide job offers in third-party work locations.
Site Visits
USCIS’ authority to conduct inspections and impose penalties for failure to comply has been codified. The Rule expands authority and compliance requirements for H-1B site inspections. USCIS is authorized to conduct site visits at the petitioner’s worksite, neutral locations, and other places where H-1B work will be performed, including third-party customer locations (including, according to the Supplementary Information accompanying the Rule, at the private residence of the H-1B beneficiary, if H-1B work is remotely performed in the home).
Deference to Prior Decisions on All Nonimmigrant Classifications using Form I-129
The Rule codifies the existing USCIS deference policy, stating that USCIS will generally defer to prior determinations involving the same parties and underlying facts unless there is a material error, material change in circumstances or eligibility requirements, or new material information adversely impacting eligibility. The deference regulation applies to all petitions, not just extensions of status, and to all nonimmigrant classifications using Form I-129.
H-1B Cap-Gap Extensions
F-1 students with cap-gap are eligible for automatic work authorization extensions of up to one year. If the H-1B is not approved by 10/1 of the fiscal year, the F-1 student can continue working for up to one year with this new rule (extending the cap gap period from October 1 to potentially as late as April 1 of the following calendar year). The prior regulation had H-1B Cap Gap extensions run until September 30, the day before the fiscal year for which the petition was filed.
Link: DHS Announces H-1B Modernization Final Rule to Improve Program Integrity and Efficiency | USCIS
New Advocacy Section of Iandoli, Desai & Cronin Website
We are adding a new section to our website where we will share immigration advocacy resources like Know Your Rights flyers, information about volunteer opportunities to assist immigrants in Massachusetts and New England, links to nonprofit entities and immigrants’ rights advocacy groups, as well as information about state-level legislative efforts that would create positive immigrant-friendly policies in Massachusetts and New England. It will be updated on a monthly basis.
December 2024 Visa Bulletin
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.
For the December Visa Bulletin, the EB-1 preference category on the Final Action Chart was published as being current for all countries other than China and India.
U.S. Citizenship and Immigration Services (USCIS) determined that Chart B (Dates for Filing Chart, Employment-Based Visa Applications) could be used by employment-based applicants in December, and Chart B (Dates for Filing Chart, Family-Based Visa Applicants) could also be used by family-based applicants in December. 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 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).
OFLC Releases Data and Program Statistics From Employers for Fourth Quarter of Fiscal Year 2024
The Department of Labor’s Office of Foreign Labor Certification (OFLC) has released data and selected program statistics for the fourth quarter of fiscal year 2024, along with the foreign labor recruiters list for the H-2B program. The releases include:
A comprehensive set of public disclosure data drawn from employer applications requesting prevailing wage determinations and labor certifications for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.
Selected program statistics for the fourth quarter of fiscal year 2024 for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.
Department of Justice Reaches Settlement Agreement Regarding Discrimination Against Worker Due to Immigration Status
On November 15, 2024, the Department of Justice (DOJ) announced that it reached a settlement agreement with Key Fortune, Inc., doing business as Express Employment Professionals (Express), a staffing company in Rancho Cucamonga, California. The agreement resolves DOJ’s determination that Express “discriminated against a worker because of her immigration status by refusing to continue to honor her valid document that showed her permission to work in the United States.” DOJ said the agreement also resolves the agency’s determination “that Express refused to place her on an assignment until she presented a specific document showing her future permission to work.”
Under the terms of the settlement, Express will pay a civil penalty of $2,200 to the United States and pay the worker backpay of $1,748.45 plus interest, less any tax withholding required by law. The agreement also requires the company to train its personnel on anti-discrimination requirements, review its employment policies, and be subject to departmental monitoring.
USCIS Reaches Fiscal Year 2025 H-1B Cap
USCIS announced on December 2, 2024, that it has received enough petitions to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2025.
USCIS will send non-selection notices to registrants through their online accounts over the next few days. When USCIS finishes sending these non-selection notifications, the status for properly submitted registrations that we did not select for the FY 2025 H-1B numerical allocations will show:
Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2025 H-1B cap. USCIS will continue to accept and process petitions filed to:
Extend the amount of time a current H-1B worker may remain in the United States;
Change the terms of employment for current H-1B workers;
Allow current H-1B workers to change employers; and
Allow current H-1B workers to work concurrently in additional H-1B positions.
USCIS Updates Guidance on Advance Parole in Extensive FAQ for DACA Recipients
U.S. Citizenship and Immigration Services (USCIS) has updated its extensive list of frequently asked questions and answers (FAQ) about Deferred Action for Childhood Arrivals (DACA) and the use of advance parole. Generally, USCIS said, it will issue an advance parole document if the DACA recipient wants to travel outside the United States for:
Humanitarian purposes, including to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative;
Educational purposes, such as semester abroad programs and academic research. Travel for educational purposes means travel affiliated with an institution that provides education as its primary purpose. A DACA recipient does not need to be enrolled in the institution with which the program is affiliated but must be enrolled in the program they will be traveling with; or
Employment purposes, such as overseas assignments, interviews, conferences, trainings, consular appointments for an employer-sponsored nonimmigrant visa, or meetings with clients overseas.
Travel for vacation is not a valid basis for advance parole, USCIS said.
The FAQ also includes a summary of DACA-related court decisions, and examples of documents to submit to demonstrate that the applicant meets the threshold criteria for DACA.