June 14, 2024 - Weekly Immigration News Update

Dear Clients and Colleagues,

We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:

Reminder – FY 2025 H-1B CAP Petition Filing Period Closes June 30, 2024

• Employers have just two more weeks to file petitions for foreign nationals selected in the FY 2025 H-1B CAP lottery before the end of the filing period on June 30, 2024.
• It is not yet known whether USCIS will conduct a second lottery for CAP employment in FY 2025. The agency is unlikely to announce a second lottery before July at the earliest, after it determines whether a sufficient number of H-1B CAP petitions were filed by June 30, 2024 to meet the annual limit of 85,000.

As a reminder, USCIS holds in reserve registrations that are not selected in the initial H-1B CAP registration lottery selection for the applicable fiscal year. During the FY 2021 and 2022 CAP seasons, USCIS conducted multiple lottery selections to reach the H-1B CAP, but it did not do so during the FY 2023 season. During the FY 2024 CAP season, USCIS conducted a total of two lottery selections.

The filing period for the Fiscal Year (FY) 2025 H-1B CAP season closes on June 30, 2024. Employers should continue working closely with their Law Offices of Keshab Raj Seadie, P.C. team to prepare and submit a full H-1B CAP petition and supporting evidence to the U.S. Citizenship and Immigration Services (USCIS) before the filing window closes. Lottery selections are only valid through June 30, which typically means that USCIS must receive all H-1B CAP petitions by that date.

Alternatives to the H-1B Visa if You Were Not Selected in the Lottery

If you were not selected in the H-1B visa lottery, there are several alternative visa options available, depending on your qualifications and circumstances.

O-1A and O-1B Visas

For individuals with extraordinary abilities, the O-1 visa is a viable option. The O-1A visa is for those with exceptional expertise in sciences, education, business, or athletics. The O-1B visa is designed for individuals with extraordinary abilities in the arts or achievements in the motion picture or television industry. These visas are available year-round and do not have a CAP, making them a flexible alternative for highly qualified professionals.

National Interest Waiver (NIW) and EB-1A?Green Cards

Professionals with advanced degrees, significant publications, patents, or awards may be eligible for the National Interest Waiver (NIW) or the EB-1A green card. The NIW allows for a green card application without a job offer if the applicant's work is of substantial intrinsic merit to the U.S. The EB-1A category is for individuals with extraordinary abilities in their field and requires demonstrating that their contributions have garnered sustained national or international acclaim.

J-1 and H-3 Trainee Visas

For those seeking to gain training or experience in the U.S., the J-1 exchange visitor visa and the H-3 trainee visa are excellent alternatives. The J-1 visa allows for participation in various exchange programs, including research and training. The H-3 visa is specifically for individuals coming to the U.S. to receive training in fields such as agriculture, commerce, communications, finance, and government.

E-3 and TN Visas

Nationals of certain countries may qualify for the E-3 or TN visas. The E-3 visa is available to Australian nationals in specialty occupations, similar to the H-1B. The TN visa, part of the United States-Mexico-Canada Agreement (USMCA), allows Canadian and Mexican professionals to work in the U.S. in designated professions.

Derivative Visas

If your spouse holds a work visa, you may be eligible for a derivative visa. These include H-4 (for H-1B holders), L-2 (for L-1 holders), E-2 (for E-1 or E-2 holders), E-3D (for E-3 holders), and TD (for TN holders). These visas allow you to accompany your spouse and, in some cases, obtain work authorization.

While the H-1B visa is a popular route for working in the U.S., there are numerous alternatives based on your qualifications and circumstances. Whether through demonstrating extraordinary abilities, seeking training, or leveraging family connections, various pathways exist to achieve your goal of working in the U.S. Exploring these options can provide a feasible alternative if you were not selected in the H-1B lottery.

DOL Retracts Certain PERM Labor Certification Approvals

The Office of Foreign Labor Certification (OFLC), which is responsible for adjudicating PERM labor certification applications for the U.S. Department of Labor (DOL), has retracted the approvals issued on an unknown number of labor certifications. The OFLC claims these approvals were issued in error.

Background on Adjudication Process

The latest scandal that is slowly leaking out to the public stems from a series of approvals issued by the OFLC that subsequently were taken back. Under normal circumstances, after an employer files a labor certification application with the DOL using an ETA form 9089, the employer is notified via email once the application is approved. In a still-unknown number of cases, however, an email was sent out to employers telling them that their approved labor certification was issued by mistake. The notifications from the DOL read as follows:

“The Atlanta National Processing Center (ANPC) is sending this email concerning your application filed under the Permanent Labor Certification Program. The certification letter and certified ETA Form 9089 was sent in error, which was emailed on [DATE] to the employer's contact and authorized attorney/agent (if applicable) listed on case A-#####-#####. You will be informed when a final determination is issued or if there is a request for information. Thank you.”

OFLC Known for Having No-Modification Policy

Ironically, the OFLC is notorious among immigration practitioners for being inflexible when it comes to applying regulations, and for implementing a no-modification policy. Even a small error or minor typo on a PERM labor certification can result in the denial of a case, and the OFLC generally prohibits any changes from being made to an application once it has been submitted. This can result in the loss of time and money, plus the potential of serious immigration problems for the beneficiary, all due to a very minor error by the employer.

USCIS Clarifies Guidance on Adopting a Child Through the Hague Adoption Convention Process

On June 14, 2024, U.S. Citizenship and Immigration Services updated the USCIS Policy Manual to clarify how prospective adoptive parents (PAPs) can adopt a child through the Hague Adoption Convention process. This policy manual update affirms the agency's commitment to the standards and principles of the Hague Adoption Convention, including safeguards to protect the best interests of children.

What You Need to Know

This update consolidates and clarifies existing guidance to provide clear requirements for the Hague process. The update:

• Explains how a foreign-born child may be eligible to be adopted through the Hague process.
• Describes the required order of immigration and adoption steps, including that a PAP should not adopt a child or obtain legal custody of a child for purposes of emigration and adoption before they complete certain required steps in the Hague process.
• Clarifies requirements for using adoption service providers, including the use of an accredited or approved primary provider and requirements following a loss of accreditation.

Background

The Convention of May 29, 1993, on Protection of Children and Co-operation in Respect of Intercountry Adoption, known as the Hague Adoption Convention, is an international treaty that provides safeguards to protect children, birth parents, and PAPs in intercountry adoptions. The convention ensures the appropriate authorities in a child's country of origin deem a child eligible for adoption before placing the child with a PAP for intercountry adoption. The convention entered into force for the United States on April 1, 2008. Since then, U.S. citizens who are habitually resident in the United States must generally follow the Hague process if they seek to adopt a child who is habitually resident in another country that is a party to the convention. For the Hague process, a PAP must file both an application for USCIS to determine their suitability and eligibility as an adoptive parent and a petition to determine the child's eligibility as a convention adoptee.

We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.

Sincerely,

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.