WR Immigration News Digest | 1/10/2025

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DHS Final Rule Revamps H-1B Program

The Department of Homeland Security (DHS) announced a final rule, effective January 17, 2025, modernizing the H-1B program by streamlining approvals, increasing flexibility to help employers to retain talent, and improving program integrity and oversight.

Key updates in the final rule include:

• Revising the definition and criteria for specialty occupation positions and exemptions for nonprofit and governmental research organizations from the H-1B visa cap.
• Extending flexibility for F-1 students transitioning to H-1B status to prevent disruptions in lawful status and employment.
• Allowing faster processing for individuals previously approved for H-1B visas.
• Permitting H-1B beneficiaries with a controlling interest in the petitioning organization to qualify for H-1B status under specific conditions.
• Codifying USCIS authority for inspections and penalties for noncompliance.
• Requiring employers to prove a bona fide specialty occupation position exists as of the requested start date.
• Ensuring the Labor Condition Application aligns with the H-1B petition.
• Mandating that petitioners have a legal presence and be subject to U.S. legal processes.

Impact: Employers should prepare for the DHS final rule, effective January 17, 2025, which modernizes the H-1B program to streamline approvals, enhance compliance, and improve talent retention. These changes aim to help employers address workforce needs while ensuring adherence to updated regulations, making it critical to align hiring and petition strategies accordingly.

DHS Final Rule Updates H-2A, H-2B Programs

The Department of Homeland Security (DHS) has finalized a rule, effective January 17, 2025, introducing significant updates to the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) worker programs. The changes aim to enhance worker protections, strengthen program integrity, improve flexibility for H-2 workers, and boost efficiency.

Key updates include:

• Strengthened Fee Prohibitions: Expands rules prohibiting certain fees charged to H-2A and H-2B workers, introducing new grounds for petition denial.
• Denial Criteria: Establishes mandatory and discretionary grounds for denying H-2 petitions.
• Whistleblower Protections: Extends protections similar to those available for H-1B workers.
• Compliance and Inspections: Clarifies petitioners’ and employers’ obligations to cooperate with USCIS compliance reviews and inspections.
• Petition Denial and Revocation: Reinforces USCIS authority to deny or revoke petitions if petitioners fail to provide necessary information or cooperate during reviews.
• Grace Period Adjustments: Modifies admission grace periods:Up to 10 days before a petition’s validity period.Up to 30 days after a petition’s expiration.Up to 60 days after revocation to seek new employment or prepare for departure without accruing unlawful presence.
• Employment Flexibility: Allows a 60-day grace period for H-2 workers to stop working for a petitioner without losing H-2 status.
• Portability: Permits H-2 workers to begin new employment upon filing an extension of stay petition, without waiting for approval.
• Return Costs: Requires H-2A employers to cover return transportation costs in cases of petition revocation, aligning with H-2B employer requirements.
• Eligibility Expansion: Removes the restriction limiting H-2 petitions to nationals of DHS- designated eligible countries.
• Streamlined Departure Rules: Standardizes the process for resetting the three-year maximum stay period following a departure from the U.S.

These changes aim to make the H-2 programs more equitable, flexible, and efficient while maintaining oversight and protecting workers’ rights.

Impact: The new DHS rule, effective January 17, 2025, introduces significant updates to the H- 2A and H-2B programs, enhancing compliance, flexibility, and worker protections. Employers face stricter rules on fees, inspections, and petition reviews, with new denial criteria for noncompliance. Adjusted grace periods and employment portability improve workforce stability and portability, while expanded eligibility and streamlined processes simplify administration. These changes require employers to strengthen compliance and adapt to ensure effective use of the H-2 programs.

Nonimmigrants are Urged to Return to the U.S. Prior to January 20, 2025

According to reports, various colleges and universities are warning foreign students to return to campus before President-elect Trump’s inauguration on January 20, 2025, due to concerns about travel bans imposed during his previous administration and his more recent comments on restricting entry into the United States when he returns to the White House. Upon the January 20, 2017 inauguration, the first Executive Order implementing a Travel Ban was announced on January 27, 2017.

Impact: Employers should consider the risks of employee international travel after January 20th.

DHS Permanently Extends Certain Work Authorization Renewal Periods

On December 10, 2024, the Department of Homeland Security (DHS) announced a final rule extending the automatic work authorization renewal period for eligible noncitizens from up to 180 days to up to 540 days. This change, effective January 13, 2025, applies to applicants with timely filed Employment Authorization Document (EAD) renewal requests pending or submitted on or after May 4, 2022.

The extended period aims to minimize lapses in employment authorization for eligible noncitizens.

Impact: The new DHS rule reduces the risk of employment authorization lapses during processing. By addressing employer concerns, the rule provides greater certainty and helps maintain operational continuity.

USCIS Reduces EAD Processing Times and Streamlines Adjudications

On December 10, 2024, U.S. Citizenship and Immigration Services (USCIS) announced a number of steps it has taken to reduce Employment Authorization Document (EAD) processing times overall and streamline adjudication processing. Key updates include cutting median processing times for adjustment of status applicants by half, reducing processing times for asylum applicants and certain parolees to 30 days, extending EAD validity for certain categories from two to five years, and expanding online filing options.

Impact: USCIS announced steps to reduce EAD processing times and streamline adjudications, providing significant benefits for employers and work-eligible individuals. These changes aim to improve efficiency and minimize disruptions for employers.

DOS Removes China, India, and Others from Exchange Visitor Skills List

The Department of State (DOS) announced an updated Exchange Visitors Skills List, effective December 9, 2024, replacing the previous version from 2009. Notably, China, India, Saudi Arabia, South Korea, and the United Arab Emirates, among other countries, have been removed from the list.

This change means J-visa exchange visitors from these countries are no longer subject to the two-year foreign residence requirement based on the prior Skills List.

Impact: The updated Exchange Visitors Skills List, benefits employers by removing the two-year foreign residence requirement retroactively from countries like China, India, Saudi Arabia, South Korea, and the UAE. This change allows employers to more easily retain talent from these countries sponsoring non-immigrant visas and green cards without delays tied to the prior requirement.

DOJ Reaches Agreement with Healthcare Facilities Service Provider to Resolve Immigration-Related Discrimination Claims

On December 6, 2024, the Department of Justice announced that it secured an agreement with Healthcare Services Group Inc. (HCSG), a nationwide provider of housekeeping, laundry, and food services for healthcare and nursing facilities. DOJ’s Employee Rights Section (IER) concluded that HCSG discriminated against a worker by refusing to honor her valid document showing her permission to work because of her citizenship status. IER’s investigation also determined that HCSG had a policy of unlawfully refusing to hire certain workers who had permission to work but were not U.S. citizens or lawful permanent residents at its Siler City location from at least February 2022 to at least December 2022.

Impact: Employers should ensure anti-discrimination measures are taken during the onboarding and I-9 form completion process or face stiff penalties.