U.S. Citizen and Immigration Services (USCIS) recently has issued some Advance Paroles with errors. The Advance Parole is a travel authorization document that permits certain applicants for adjustment of status (green card) or refugee/asylee status to return to the United States. It must be approved prior to travel outside the United States. 

Recently, USCIS has issued some Advance Parole documents indicating Temporary Protected Status (TPS), instead of the correct adjustment of status or refugee/asylee process designation. The TPS parole is only granted to an individual who is recognized in temporary protected status.

The Advance Parole document that is received should be carefully reviewed and checked to ensure it is issued pursuant to the correct classification. Adjustment of status or refugee/asylee Advance Parole documents should not include a TPS parole designation.

The registration period for the fiscal year (FY) 2025 H-1B cap petitions opened at noon ET March 6, 2024, and will continue to run through noon ET March 22, 2024. Employers seeking to file an H-1B cap-subject petition must electronically register during this period using a U.S. Citizenship and Immigration Services (USCIS) online account. The registration process includes basic information about the prospective petitioner and each beneficiary along with a $10 registration fee for each beneficiary. The registration process for FY 2025 is governed by the final rule published Feb. 2, 2024, which took effect March 4, 2024.

The final rule includes a new beneficiary-centric selection process to ensure all beneficiaries have an equal chance of selection. Under the new process, registrations will be selected by unique beneficiary rather than by registration. As part of the registration process this year, each beneficiary must provide a valid passport that matches the registration details. See our February 2024 blog post for additional information on the new passport expiration requirements.

As with prior years, it is expected that USCIS will receive enough registrations during the registration period to meet the 65,000 H-1B cap, with an additional 20,000 visas available for those who possess a U.S. master’s degree or higher from an accredited U.S. institution. If the cap is reached, USCIS will conduct a random lottery of the registrations it receives following the close of the registration period. Petitioners will receive an electronic notification if their registration has been selected and can move forward with filing the H-1B petition for only those beneficiaries named on the selection notice. 

H-1B cap-subject petitions for those registrations that are selected in the initial drawing can be filed between April 1, 2024, and June 30, 2024. USCIS clarifies in the final rule that requesting an H-1B cap employment start date after Oct. 1 of the relevant fiscal year is permissible. Petitioners that have received H-1B selections will be able to use their USCIS organizational account to electronically file any H-1B petitions that were selected in the process, or they can file a traditional paper filing of the H-1B petition that is sent to USCIS by mail or courier.

On March 8, 2024, the U.S. Department of State (DOS) published the April 2024 Visa Bulletin. This is the first bulletin in the second quarter, and it reflects advances in most employment-based categories, as follows:

  • EB-1
    • EB-1 China: advances six weeks to Sept. 1, 2022;
    • EB-1 India: advances five months to March 1, 2021; and
    • EB-1 All Other Countries: remains current.
  • EB-2
    • EB-2 China: advances one month to Feb. 1, 2020;
    • EB-2 India: advances six weeks to April 15, 2012; and
    • EB-2 All Other Countries: advances seven weeks to Jan. 15, 2023.
  • EB-3
    • EB-3 China: remains the same at Sept. 1, 2020.
    • EB-3 India: advances six weeks to Aug. 15, 2012; and
    • EB-3 All Other Countries: advances 2.5 months to Nov. 22, 2022.

The DOS Visa Bulletin summarizes the availability of immigrant numbers and releases Dates for Filing Applications and Final Action Dates charts monthly for both employment-based and family-based immigrant visas. U.S. Citizenship and Immigration Services (USCIS) then confirms which chart applicants must use to file their Adjustment of Status Application. For April 2024, USCIS confirmed applicants in all family-sponsored preference categories must use the Dates for Filing chart while all employment-based preference categories must use the Final Action Dates chart.

Accordingly, an employment-based foreign national must have a priority date that is earlier than the date listed in the Final Action Date chart for their preference category and country of chargeability in order to be eligible to file an Adjustment of Status application or have the permanent residence application granted. Please see below for the April 2024 Employment-Based Visa Applications Final Action Dates Chart:

Employment-
based
All Chargeability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIAMEXICOPHILIPPINES
1stC01SEP2201MAR21CC
2nd15JAN2301FEB2015APR1215JAN2315JAN23
3rd22NOV2201SEP2015AUG1222NOV2222NOV22
Other Workers08OCT2001JAN1715AUG1208OCT2001MAY20
4th01NOV2001NOV2001NOV2001NOV2001NOV20
Certain Religious WorkersUUUUU
5th Unreserved
(including C5, T5, I5, R5)
C15DEC1501DEC20CC
5th Set Aside:
Rural (20%)
CCCCC
5th Set Aside:
High Unemployment (10%)
CCCCC
5th Set Aside:
Infrastructure (2%)
CCCCC

DOS projects little to no movement in the priority dates for employment-based categories through the remainder of the fiscal year, which ends Sept. 30, 2024.

Please join Greenberg Traurig Shareholder Kate Kalmykov, James Sozomenou, Metropolitan Commercial Bank, and Connor IrishPRXY CO, for the next lunch-and-learn. The program will discuss:

  • What is the role of an Escrow Bank in EB-5
  • Understanding the duties of an EB-5 Fund Administrator under the RIA
  • Positive effects on a project’s capital raise
  • How to get set up

Location:

The lunch-and-learn program will take place in-person at Greenberg Traurig’s NYC office in One Vanderbilt on Thursday, April 11 from 12 – 2:00 p.m. ET.

RSVP:

To RSVP for the April 11 program, please click here.

This event is part of a series on emerging trends impacting investors and employers. To RSVP to future scheduled Lunch-and-Learn programs, please click here.

As of Feb. 29, 2024, most Mexican citizens who wish to visit Canada will need to obtain a Temporary Resident Visa (TRV). Since December 2016, Mexican citizens have only had to obtain the Electronic Travel Authorization (eTA) to travel to Canada.

Mexican citizens who possess a valid U.S. nonimmigrant visa, a Canadian work or study permit, or who have held a Canadian TRV within the last 10 years and are traveling by air to Canada may use eTA. Mexican citizens traveling to Canada by land will typically need a TRV.

The Canadian government announced it was reinstituting the visa requirement for Mexican citizens because of an increase in asylum claims by Mexican citizens that are refused, withdrawn, or abandoned. The application process for Mexican citizens applying to work or study in Canada remains unchanged.

Earlier in 2024, the Department of Homeland Security introduced a regulation to reform the H-1B lottery process, shifting from an employer-centric to a beneficiary-centric selection. While this change may improve overall selection rates, high demand for H-1B visas is projected to continue to exceed the available annual 65,000 numeric limit (cap). Employers should therefore be prepared to discuss alternative options for employees who are not selected in this year’s H-1B registration process.

I. H-1B Cap Exemption

To obtain H-1B visa status for an employee, an employer’s H-1B registration must either “win” the H-1B lottery or the employer must qualify for an exemption to the H-1B cap to avoid the lottery. Certain employers are considered exempt from the H-1B cap, including institutions of higher education, non-profit entities related to or affiliated with such educational institutions, and certain non-profit or government research organizations.

An employer subject to the cap may be able to file a cap-exempt H-1B petition if the prospective employee concurrently holds a position with a cap-exempt employer. The cap exemption initially attaches to the H-1B petition filed with the cap-exempt employer, followed by the submission of an H-1B petition by a cap-subject employer that would then be cap-exempt through the noncitizen’s employment by the cap-exempt entity. Regulations limit the validity of the “concurrent” cap-subject petition to the end date indicated on the approved cap-exempt petition and provide for potential revocation of the cap-exempt petition if the employee’s cap-exempt employment ceases before the end date on the concurrent cap-subject petition. There is no minimum weekly number of hours the individual must be employed by the cap-exempt employer in order to qualify for cap exemption based on concurrent employment with that employer; however, the use of “concurrent” employment works best when the intended length of the cap-exempt and cap-subject employment are expected to be about the same.

However, concurrent employment requires careful timing and cooperation between the two employers because cap-exempt employment must continue for the cap-subject employer’s H-1B petition to remain valid.

II. Going Back to School or Receiving More Training

Certain employees whose H-1B registration was not selected in the lottery may opt to continue their academic program or return to school. F-1 student status can provide sufficient U.S. work authorization until the following year’s H-1B lottery, when the employee may have an additional chance for selection.

Optional practical training (OPT) allows students up to one year of post-graduate practical training through employment related to their field of study. Students with a degree in certain STEM fields may be eligible to obtain a two-year STEM OPT extension of work authorization, for a maximum of up to three years of post-graduate work authorization. This employment authorization offers employers a chance to plan a permanent solution or explore other options to retain the employee in the United States. If the employee has exhausted any available OPT or STEM OPT-based work authorization, they may be able to enroll in a new academic program that permits practical training. Curricular Practical Training (CPT) is training related directly to the student’s major area of study and provides work authorization as authorized by the school. However, certain CPT programs may carry significant risks related to maintaining valid immigration status, so the employee should assess this option carefully.

An H-3 trainee visa may be an option for employers with formal structured training programs. Key H-3 requirements include that the training is not available in the person’s home country and the training benefits the H-3 trainee’s career outside of the United States, the H-3 position is not in the normal operation of the business, and the H-3 trainee will not engage in productive employment unless incidental and necessary to the training.

A J-1 trainee visa could be an option if a prospective hire has a degree or professional certificate from a foreign university and has at least one year of prior related work experience, or five years of work experience abroad in their field. Trainees must participate in a structured and guided work-based training program in the field with limited productive employment. However, a J-1 visa may make the visa holder subject to a two-year home residence requirement so it is critical to determine at the outset if this requirement will apply.

III. Country-Specific Visa Options

The United States has created other special work visas for certain foreign nationals through specific trade treaties with individual countries.

The E-3 classification is limited to Australian nationals and while its criteria are similar to those of an H-1B visa, notable distinctions include dual intent, validity period, and application procedures. Present regulations restrict the annual issuance of E-3 visas to 10,500 qualifying foreign workers. The H-1B1 classification closely mirrors the H-1B and E-3 classifications, but it is limited to workers from Chile and Singapore. Compared to an H-1B, it differs significantly in terms of dual intent, validity period, and application procedures. Present regulations cap the annual issuance of H-1B1 visas at 6,800, with 1,400 allocated for Chile and 5,400 for Singapore. The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to temporarily enter the United States for professional business activities. The list of eligible TN visa professions includes accountants, engineers, lawyers, pharmacists, scientists, teachers, and others.

E-1 Treaty Trader and E-2 Treaty Investor visas permit individuals from countries that have specific treaties with the United States to conduct business or invest in a commercial enterprise in the United States. If the employer entity’s ownership shares the same nationality as the employee and their country has a qualifying treaty, an E-1 or E-2 visa may be an option. If an employer is already qualified as a treaty trader or investor, the process primarily involves demonstrating that the offered position requires essential skills or is supervisory/managerial and ensuring the prospective E-1 or E-2 visa holder holds the necessary qualifications. If the employer has not previously qualified, it will also need to demonstrate substantial investment (E-2) or trade principally between the United States and the home country (E-1).

IV. L-1 Intracompany Transferee

An L-1 visa allows companies with an international presence to transfer managers, executives, and specialized knowledge workers from a foreign branch or affiliate to the United States, if the transferring employee worked for the related entity abroad for at least one year in the last three years. If a qualifying corporate relationship exists between the U.S. and foreign companies, among other factors, the company is then also required to demonstrate the specialized knowledge, managerial, or executive positions of the transferring employee both in and outside the United States.

Multinational companies may have the option to develop and implement international rotation programs, allowing talent intended for U.S. roles to gain experience with the company abroad before returning stateside. Hiring a foreign national to work for an affiliated company abroad if they are not selected in the H-1B registration would allow them to build up time toward becoming eligible to return to the United States to work in L-1 status. However, transferring an employee to work for the company abroad triggers additional considerations for the employer to address such as issues related to obtaining foreign residency and work authorization.

V. O-1 Extraordinary Ability Visa

Individuals demonstrating extraordinary ability in business, science, education, art, or athletics may qualify for an O-1A visa. To meet this standard, they must be among the top echelon in their respective fields, demonstrating exceptional achievements. This requires evidence of notable accomplishments such as publications, awards, high salaries, or critical roles in prestigious organizations. In fields such as motion pictures and television (O-1B), a “high level of achievement” is required, demonstrating a degree of skill and recognition significantly above the norm. O-1B could be an option for employees with a background as a graphic designer, video game designer, fashion designer, creative director, or visual effects artist, among others.

In O-1A/B petitions, the individual’s accomplishments must be “recognized in the field through extensive documentation” and hence applying for an O-1 visa is often a long and evidence-intensive process. For students, particularly those pursuing a Ph.D. in the sciences, an O-1 visa can be a viable option if they have a record of original research, publications, awards, and presentations.

VI. Spousal Work Authorization and Other Family-Based Options

In some cases, a foreign national employee may be eligible for U.S. work authorization through their spouse. Derivative spouse status as an L-2S, E-1S, E-2S, J-2, or, in some cases, H-4 could provide employment authorization. E-1S, E-2S, and L-2S status provide work authorization incident to status, while J-2 and eligible H-4 spouses must apply for an EAD before they may start working. If an EAD is required, employers should consider processing times as they can be lengthy.

VII. Immediate Permanent (Green Card) Sponsorship Options

Foreign nationals meeting the criteria for a green card based on EB-1-1 Extraordinary Ability, EB-1-2 Outstanding Professor or Researcher, EB-2 National Interest Waiver, or EB-2 Schedule A I-140 classification, with an available immigrant visa number, may consider filing an I-485 Application to Adjust Status with a concurrent application for employment authorization along with the employer’s immigrant petition. However, most H-1B cap-subject individuals are recent graduates or early in their careers and may not yet meet the eligibility criteria for these classifications. A green card through PERM Labor Certification was previously a feasible alternative to the H-1B cap especially for students eligible for three years of OPT and STEM OPT-based post graduate work authorization, but timing has become challenging due to lengthy Department of Labor processing times and potential visa number shortages.

VIII. A Creative Option: Look Nearshore

If there is no other viable option, the U.S. company could consider partnering with a Canadian firm to retain talent nearshore. Essentially, after the employee’s U.S. work authorization ends, the Canadian company would hire the employee and contract them back to the U.S. company, allowing the employee to work from Canada on a long-term basis.

As U.S. employers prepare to submit their H-1B registrations for USCIS’s FY 2025 H-1B lottery, selection will be by no means guaranteed and contingency planning will continue to remain key to retain foreign talent.

This week, Kate Kalmykov and Nataliya Rymer attended a series of meetings in Amsterdam with colleagues and industry professionals on global migration, as well as with the GT Amsterdam office

Key takeaways for 2024 include: 

  • Companies will continue to focus on cost-saving measures in 2024
  • Many global migration teams have set cost savings targets—either headcount, spend, or both
  • Assignments & Business travel is expected to remain at 2023 levels and has not yet bounced back to pre-pandemic levels 
  • International hiring will continue, and we may see an increase in shorter overseas assignments
  • Government tracking is getting smarter and better 
  • Clients are focused on ensuring compliance amid a changing international regulatory environment in the areas of immigration, tax, and others
  • Companies likely will adopt generative Al in many products and tools, focusing on the deployment of AI to enrich the employee immigration and relocation experience
  • Technology-enabled self-service systems will become more valuable to clients over traditional case management, and app usage will become more prevalent
  • Data-driven decision-making will continue to increase
  • Clients are highly focused on data security amid heightened cyber threats
  • Elections worldwide will occur in many countries and regions including the United States, European Union, and Asia, which may impact global mobility
  • Tax schemes in the EU may be subject to change due to upcoming elections, potentially altering the levels of popularity of various European locations for relocation purposes. For instance, a recent ruling in the Netherlands amended the extraterritorial cost reimbursement system for long-term transfers
  • Sustainability will increasingly affect global mobility functions 
  • Companies are seeking ways to increase sustainability without increasing costs

The global mobility landscape continues to be complex, requiring lasting relationships with trusted partners. Monitoring trends and potential issues, along with important upcoming legal changes, will contribute to commercial success, as well as an engaged and invested work force. 

Kate Kalmykov and Nataliya Rymer a global migration event in Amsterdam.

The Department of Homeland Security (DHS) and Department of Justice (DOJ) recently issued a fact sheet to guide employers on electronically completing, modifying, or retaining Form I-9. The joint guidance applies to employers using private sector commercial or proprietary I-9 software programs to complete Form I-9 or participate in E-Verify.

Requirements for Employers Using Electronic Form I-9 Software Programs

DHS permits completing Form I-9 electronically provided that the I-9 software complies with I-9 and E-Verify requirements. The DHS/DOJ fact sheet confirms that employers, rather than the software vendor, are responsible for ensuring compliance with these requirements. It provides the following key requirements and states that an I-9 software must:

  • Provide employees with access to the current acceptable version of Form I-9, I-9 instructions, and list of acceptable documents.
  • Allow employees to leave optional fields blank and accommodate employees with only one name.
  • Meet integrity, accuracy, security, and reliability requirements designed to prevent and detect unauthorized or accidental creation, alteration, or deletion of stored I-9s.
  • Comply with standards for electronic I-9 signatures.
  • Comply with general requirements applicable to I-9 documentation, retention, and audit trail requirements.
  • Ensure the electronic generation or storage of Form I-9 is inspected and monitored periodically.
  • Ensure the I-9 forms and all information fields on electronically retained I-9s are fully and readily accessible in the event of a government audit.

Specifically related to modifying and retaining Forms I-9 electronically, the fact sheet states that I-9 software must provide employees, employers, and preparers/ translators the option to make and record corrections to a previously completed I-9 form. Further, the software must uniquely identify each person who accesses, corrects, or changes an I-9 form. Modifications to stored I-9 forms must be properly annotated to include the date of access, the identity of the person making the change, and the nature of the change. Commercial or proprietary I-9 software may lack the functionality to comply with these guidelines regarding providing an audit trail and permitting corrections to completed I-9 records, so these are specific considerations employers should be aware of when assessing potential I-9 software for compliance.

Requirements for Employers Using Electronic Form I-9 Software Programs to Create E-Verify Cases

The DHS/DOJ fact sheet notes that employers who participate in E-Verify and access E-Verify through a software must: 

  • Confirm that the software’s functionality allows employers to follow the requirements detailed in the E-Verify Memorandum of Understanding and DHS’s E-Verify guidance.
  • Refrain from creating new E-Verify cases due to corrections made to the previously completed I-9 if the employee received a prior “employment authorized” result. Depending on functionality, commercial or proprietary I-9 software may require completing a new I-9 instead of allowing a correction to the previously completed form.
  • Be able to delay creating E-Verify cases as instructed by E-Verify rules. For example, E-Verify instructs employers to postpone creating E-Verify cases for employees who have not yet received their Social Security numbers and for employees who show certain acceptable receipts for the Form I-9. The software’s functionality should permit employers to delay creating the E-Verify case in these scenarios.

Training for Employer Personnel Administering I-9 Software on Behalf of the Employer

The DHS/DOJ fact sheet also reminds employers to properly train personnel completing electronic Forms I-9 on the employer’s behalf. Key points include the following:

  • Employer personnel should be familiar with the employer’s procedures to complete Form I-9 or create an E-Verify case outside of the Form I-9 software program if, for example, the person completing the I-9 cannot use the I-9 software program or there is a software outage.
  • Employers should not pre-populate fields on electronic I-9 forms with employee information. An I-9 software may be part of the employer’s other HR-related systems and the system may initiate the I-9 verification process through impermissibility pre-populating the employee’s information on the electronic I-9.
  • The employer must not use auto-correct, use predictive text, or post-date an I-9 when completing an I-9 with an I-9 software.
  • The employer should not complete the I-9 on an employee’s behalf and must not change or update the employee’s citizenship or immigration status attestation. For corrections to Section 1, the process is the same as when completing a paper I-9 and changes or corrections to Section 1 must be made by the employee. The I-9 software must have the functionality to allow the employee to make corrections to a previously completed I-9 form.
  • The employer must not remove or add fields to Form I-9. An I-9 software that adds additional questions seeking information that is not requested by the I-9 form may violate this guidance.
  • Employers must permit preparers or translators to assist an employee in completing an electronic I-9.
  • Employers must permit employees to present any valid and acceptable documentation to establish identity and employment authorization, including acceptable receipts, and should not suggest specific documents for this purpose. Thus, an I-9 software should not notify the employer to, for example, request documentation to reverify an employee’s identity document or reverify a permanent resident card.
  • The fact sheet reminds employers to not impose unnecessary obstacles that make it more challenging for employees to start work or get paid, such as by requiring a Social Security number to onboard or by not paying an employee who can complete the Form I-9 but is still waiting for a Social Security number.

Given the significant penalties for non-compliance, employers should exercise thorough due diligence when evaluating I-9 software, considering compliance with DHS regulations alongside factors like cost, functionality, and interoperability with its other systems. Although government guidance has been minimal, the fact sheet provides some insight into the government’s stance on regulatory requirements for electronic I-9s and may be helpful to employers when selecting an I-9 software.

Greenberg Traurig Immigration & Compliance Practice attorneys Kate KalmykovJennifer HermanskyNataliya Rymer, and Luna Ma will be visiting 11 cities across the globe from February to May 2024. Please refer to the below graphic for date and location details and click here to schedule an appointment with a GT attorney.

Click on the image to view larger.

With the 2024 Summer Olympics approaching, visa applicants may see longer wait times for appointments at U.S. embassies and consulates in Paris and across Europe. The Summer Olympics are set to take place in Paris, France from July 26 to Aug. 11, 2024. The Paralympics will take place from Aug. 28 to Sept. 8. Drawing more than 15,000 athletes and upwards of 300,000 spectators, these events may result in significantly longer wait times for visa appointments at the U.S. embassy in Paris, as well as at other nearby embassies and consulates.

The U.S. State Department provides up-to-date information about visa appointment wait times on its website. Currently, the wait time at the U.S. embassy in Paris for a temporary U.S. work visa is 50 calendar days. The wait time for student and exchange visitors traveling to the United States is four calendar days, and the wait time for a U.S. visitor visa is 365 days. Please note these wait times are subject to change and are expected to increase due to the Olympics.

In anticipation of these longer wait times for a visa interview, applicants should begin the visa application process as soon as possible. Moreover, applicants may want to consider applying for their visa before the Olympics begin or after they have concluded.