U.S. Immigration & Travel Updates - January 2025

Last updated: January 30, 2025

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case.

Following is a list of recent immigration and/or travel updates:

• Review initial Executive Orders issued by the new administration on this post.

• As of January 22, 2024, the COVID-19 vaccine is no longer required for medical exams filed with USCIS.

• On January 26, 2025, the U.S. issued a visa issuance ban against select members of the Colombian government officials and their family members and the Embassy has cancelled existing visa appointments and prevented scheduling of new ones. Watch the Embassy website for the latest updates.

• On January 27, 2025, USCIS “paused” the Uniting for Ukraine Program.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart Pratt Beckerson & Carr PC 2025

Trump Administration’s Initial Executive Orders on Immigration

Updated January 24, 2025

Several Executive Orders (“EOs”) from the Trump administration issued on January 20, 2025 introduce changes that may affect employers and their foreign national employees. This post offers a brief overview of some select EOs’ main points and their potential implications for employment-based immigration. As of this writing, few implementation details are known. As we gain clarity on the implementation of specific policies, we will provide more detailed insights.

 America First Policy Directive to the Secretary of State:  Similar to the “Buy American Hire American” directive of the previous Trump administration, the Secretary of State is directed to put the U.S. and U.S. citizens first in all foreign policy. This will affect visa issuance decisions at consular posts. Applicants should be prepared to explain how their proposed work will benefit the U.S. Similar to the “National Interest Exception” requests required during the COVID travel bans, it may be helpful to reference the critical infrastructure list, as well as describe jobs created for American workers and investments made in the U.S. Additional policies and procedures will be forthcoming on this point.        

America First Trade Policy: “The United States Trade Representative shall commence the public consultation process set out in section 4611(b) of title 19, United States Code, with respect to the United States-Mexico-Canada Agreement (USMCA) in preparation for the July 2026 review of the USMCA.  Additionally, the United States Trade Representative, in consultation with the heads of other relevant executive departments and agencies, shall assess the impact of the USMCA on American workers, farmers, ranchers, service providers, and other businesses and make recommendations regarding the United States’ participation in the agreement.” This review may have an effect on TN occupational categories and visa issuances. 

Protecting the United States from Foreign Terrorists and other National Security and Public Safety Threats:  The Secretary of State, Attorney General, the Secretary of Homeland Security (includes USCIS, CBP), and the Director of National Intelligence, are ordered to identify resources and determine information needed to confirm a foreign national’s identity and that the foreign national is not a national security or public-safety threat. Screening and vetting procedures are to be at a “maximum” level and the agencies are ordered to “re-establish baseline” for visa issuances and “immigration benefits” which likely includes petitions and applications filed not only with the State Department but with USCIS. These procedures may also include additional vetting at application for admission at U.S. ports of entry. A 60-day review of information-sharing from other countries is ordered, setting the groundwork for possible travel bans for nationals of countries that don’t share enough information. There is also a potential look-back at foreign nationals who have been admitted to the U.S. since Jan. 20, 2021, when President Biden took office. Finally, the EO orders a review of Foreign Affairs Manual, which is the set of regulations governing how the posts issue visas, among other things, and in particular the inadmissibility (criminal and related) grounds in the manual.   

Initial Recissions of Harmful Executive Orders and Actions:  This EO rescinds many of President Biden’s EOs, and may affect prior directives related to streamlining visa processing, including doing away with visa interview waivers and potentially scrapping a long-planned and already successfully piloted stateside visa renewal program as well as potentially stopping the re-use of biometrics, among other things. On January 23, the Trump administration issued another EO revoking a Biden EO related to AI, which contained several policies related to O-1, EB-1, EB-2, and entrepreneur parole visa options for foreign nationals with AI expertise.

Protecting the Meaning and Value of American Citizenship:  “It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.” Note that this could affect children born to nonimmigrant visa holders. An ACLU lawsuit has already been filed to challenge this policy. On January 23, 2025, a federal judge blocked this policy.

Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government:  “The Secretaries of State and Homeland Security . . . shall implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.” 

Two final EOs that potentially implicate case processing times and visa interview and adjustment or status or naturalization appointment availability include the Return to In-Person Work and Hiring Freeze EOs.   

© Jewell Stewart Pratt Beckerson & Carr PC 2025 

Romania Becomes the 43rd Member of the Visa Waiver Program

On January 10, 2025, the Department of Homeland Security designated Romania as the 43rd member of the Visa Waiver Program (VWP). Starting on or around March 31, 2025, citizens and nationals of Romania will be able to apply through the Electronic System for Travel Authorization (ESTA) to travel to the United States for tourism or business purposes for up to 90 days without first obtaining a U.S. visa.

Citizens of countries participating in the Visa Waiver Program (VWP) may travel to the U.S. as visitors for business or pleasure without first obtaining a visitor’s (B-1 or B-2) visa from a U.S. Consulate. In return, U.S. citizens may enter member countries under the same conditions.  

Eligible travelers must apply online for authorization to travel to the United States through the Electronic System for Travel Authorization (ESTA). VWP travelers are not permitted to board a carrier to travel to the U.S. by air or sea unless they have ESTA clearance (these authorizations are generally valid for two years).  VWP admittees may enter for periods of up to 90 days, provided that they are eligible for admission under applicable law.

There are now 43 VWP countries:

Andorra, Australia, Austria, Belgium, Brunei, Chile, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, the Republic of Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Poland, Portugal, Qatar, Romania, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Taiwan, United Kingdom.

U.S. Customs and Border Protection anticipates the ESTA online application will be updated on or around March 31, 2025.  Once launched, eligible Romanian passport holders with ESTA clearance will be able to visit the United States without visas.

© Jewell Stewart Pratt Beckerson & Carr PC 2025

USCIS issues final rule on H-1B eligibility definitions, H-1B cap-exempt employment, F-1 “cap-gap” flexibility, and modernization provisions for H-1Bs and other nonimmigrant workers

Summary: On December 18, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Final Rule in the Federal Register (89 FR 103054, 12/18/24) that will bring changes to H-1B eligibility requirements and definitions (including the definition of “specialty occupation”); clarify and expand the criteria for H-1B cap-exempt employment; increase the duration of F-1 cap-gap work authorization; and clarify, update, and codify USCIS policies on H-1B amended petitions, deference to prior H-1B approvals, and H-1B investigations and site visits. The new rule also codifies a requirement for maintenance-of-status evidence for all employment-based nonimmigrant classifications that use Form I-129 for status extensions or amendments.

Effective date: The Final Rule takes effect on January 17, 2025. To implement the Final Rule, USCIS must publish a new version of Form I-129. USCIS announced on December 18 that it will publish a preview version of the new form shortly.

Background: The Final Rule is based on a Notice of Proposed Rule Making (NPRM) for H-1B modernization published on October 23, 2023 (88 FR 72870, 10/23/23). On February 2, 2024, USCIS finalized portions of the NPRM relating to the annual H-1B cap registration process in a separate final rule (89 FR 7456), which has governed H-1B cap registration since then (covered in our 2/2/2024 blog post). The other proposals in the NPRM are part of the new Final Rule.

Highlights of the new Final Rule follow.

1.       Revision to the regulatory definition and criteria for a “specialty occupation”; requirement of “bona fide” position

The make-or-break issue in every H-1B petition is whether the job in question is in a “specialty occupation,” i.e., whether it normally requires a bachelor’s or higher degree in a specific field. The Final Rule states that “normally” does not mean “always,” and changes the existing regulatory definition of “specialty occupation” to make it clear that any field of study stated as required for the job in the H-1B petition must be directly related to the job duties. The Final Rule clarifies that “directly related” means there is a logical connection between the degree and the duties of the position. The regulatory definition also clarifies that, although the position may allow for a range of academic fields that satisfy the employer’s degree requirement, each such field must be directly related to the duties of the position. The Final Rule’s definition of “specialty occupation” reads:

Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a directly related specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. A position is not a specialty occupation if attainment of a general degree, without further specialization, is sufficient to qualify for the position. A position may allow for a range of qualifying degree fields, provided that each of those fields is directly related to the duties of the position. Directly related means there is a logical connection between the required degree, or its equivalent, and the duties of the position.

The Final Rule addresses “specialty occupation” in relation to H-1B beneficiaries placed at third-party worksites. If a beneficiary will be contracted to fill a position in a third party’s organization and becomes part of that third party’s organizational hierarchy (as opposed to merely providing services to the third party), the requirements of the third party, and not the H-1B petitioner/employer, will be the most relevant in determining “specialty occupation.”

In all H-1B petitions, the position offered must be “bona fide.”  The Final Rule allows USCIS to request contracts or similar evidence to show the bona fide, i.e., non-speculative, nature of the position. 

2.       Revision to the regulatory definition of “U.S. employer,” allowing H-1B sponsorship by an entity majority-owned by the H-1B beneficiary

In a potential boon for early-stage startups, the Final Rule says that a “U.S. employer” for H-1B sponsorship purposes may be an entity in which the sponsored H-1B beneficiary has a “controlling interest,” provided that the majority of the beneficiary’s time (over 50%) is spent on “specialty occupation” duties. “Controlling interest” is defined as either having more than 50% ownership or having majority voting rights in the entity.  The initial H-1B petition validity for a beneficiary-owner will be limited to 18 months, and the first extension (including an amended petition with a request for an extension of stay) would also be limited to 18 months. Any subsequent extension may be approved for up to three years, assuming the petition satisfies all other H-1B requirements.

3.       To allow more H-1B petitions to qualify as “cap exempt,” a broadening of key definitions

H-1B petitions sponsored by certain types of organizations are exempt from the lottery for new H-1B visas each year. An H-1B beneficiary’s work for nonprofit research organizations, governmental research organizations, and nonprofit organizations affiliated with institutions of higher education is considered cap-exempt, but proving cap-exemption has been a challenge due to USCIS’ strict interpretation of the criteria, and the difficulty of proving the degree of closeness of the H-1B beneficiary’s work to the cap-exempt organization’s mission or purpose. Key liberalizing changes in the Final Rule include:

• “Nonprofit research organization”: The H-1B sponsoring entity will need an IRS determination letter confirming tax-exempt status, but the IRS letter need not necessarily specify that the organization’s purpose is “research.” “Research” may be shown in other documentation.

• “Research”: Research (basic or applied) need not necessarily be the organization’s main purpose; it may be just one part of what the organization does.

• A nonprofit research organization’s affiliation with an institution of higher education: The nonprofit research organization’s main purpose need not necessarily be to contribute to the research or education mission of the institution of higher education; doing so may merely be a purpose, or a fundamental activity, of the nonprofit research organization.

• An H-1B petition may be cap-exempt if beneficiary’s job duties support or advance a (not necessarily the) fundamental purpose, function, mission, or objective of the cap-exempt entity.

• In an H-1B petition that is cap-exempt for a beneficiary not directly employed by the exempt entity but working “at” the exempt entity, the word “at” can mean working remotely within the U.S. as versus physically onsite, and work for the exempt entity may be as little as 50% of the beneficiary’s time.

The Final Rule’s liberalizations in the cap-exempt area should increase the number of H-1B petitions exempt from the cap, thus taking pressure off the annual demand for cap-subject H-1Bs.

4.       Extended cap-gap for F-1 students and flexibility in H-1B cap employment start dates

According to the Final Rule, an F-1 student with OPT or STEM OPT work authorization who is the beneficiary of a change-of-status H-1B cap petition will automatically, upon timely filing of the petition, have an automatic extension of their F-1 status and work authorization (“cap gap”) to April 1 of the fiscal year for which the H-1B is being sought. Until now, “cap gap” work authorization has ended on September 30 of the fiscal year prior to the year for which H-1B status was sought and the individual’s F-1 status ended 60 days later.

Also, according to the Final Rule, an H-1B cap-subject petition need not state a start date of October 1 of the fiscal year for which H-1B status is sought; a start date later than October 1 may be requested, provided it is not more than 6 months later than the date of petition filing. (And, as always, the entire period of requested employment must be covered by a valid Labor Condition Application.)   

These provisions in the Final Rule will minimize F-1 work authorization gaps while awaiting H-1B status and will allow optimization of F-1 OPT work authorization.

5.       Codifying the Simeio memo for H-1B petitions; expanding forgiveness of timely filing requirement for amendments and extensions

According to the USCIS Administrative Appeals Office’s decision in Matter of Simeio Solutions, LLC (2015), and the 2015 USCIS Policy Memo to implement the decision, a new or amended H-1B petition involving material changes to an H-1B beneficiary’s job must be filed with USCIS before the changes take effect. In cases where H-1B portability rules apply, the changes may take effect upon filing of the new/amended petition instead of waiting for petition approval. Any change to a beneficiary’s job that requires a new Labor Condition Application from the U.S. Department of Labor is, by definition, a material change and requires an amended H-1B petition.

The Final Rule codifies the Policy Memo, giving it the force of federal regulation, and gives it teeth by adding a new ground for H-1B petition revocation to the existing revocation grounds. The Final Rule states that an H-1B petition is automatically revoked if the H-1B petitioner (employer) fails to timely file an amended petition notifying USCIS of a material change.

Potentially softening the effect of the “automatic revocation” in the Final Rule is an expansion of the circumstances in which USCIS may and accept a late-filed petition: it would not only cover filings after I-94 expiration, as has been the case under existing regulations, but would also cover late-filed amended petitions, i.e., where the I-94 is not expired but circumstances requiring an amended filing took effect before the amendment was filed.

6.       Maintenance-of-status evidence required for amendments and extensions of employment-based nonimmigrant status

The Final Rule codifies a requirement for maintenance-of-status evidence for all employment-based nonimmigrant classifications that use Form I-129 for status extensions or amendments (E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, R-1, TN). To establish that the beneficiary maintained the previously accorded nonimmigrant status prior to the filing of the extension or amendment, evidence may include, but is not limited to paystubs, W-2 forms, tax returns, contracts, work orders, and the employer’s quarterly employment tax filings.

7.       Clarifying and codifying USCIS policy on deference to prior petition approvals

The Final Rule clarifies and codifies USCIS’s policy on deferring to prior H-1B petition approvals.  Specifically, if a petition involves the same parties and the same underlying facts as a prior approved petition, USCIS will give deference to the prior approval unless it involved a material error, or there is new, material information or changed circumstances affecting H-1B eligibility.

8.       Codifying policy on USCIS H-1B site visits

The Final Rule codifies current USCIS policy and practice regarding employer site visits to investigate the validity of H-1B and other nonimmigrant petitions. Per the Final Rule, USCIS at any time after filing of the petition, including after petition approval, may conduct unannounced site visits, hold interviews of petitioners or beneficiaries without the presence of counsel, and perform investigations to verify that the information in the petition is/was true. Failure or refusal of the petitioner to cooperate in a site visit may result in denial or revocation of the H-1B petitions of any H-1B workers at the work site in question.

9.       Other miscellaneous provisions

The Final Rule codifies or revises existing policies on diverse subjects including: agents as petitioners; USCIS process for when adjudication occurs after the end of the requested petition period; use and tracking of multiple-beneficiary Labor Condition Applications; protection of working beneficiaries of a suspended Labor Condition Application; and extension requirements for certain L-1 and O-1 petitions.

Finally, it is worth noting that a proposal to bar “related entities” from submitting H-1B registrations for the same individual, that was included in the October 23, 2023 NPRM, was not included in this Final Rule. In its preamble, USCIS noted that the recent implementation of the “beneficiary-centric” H-1B cap registration process has already significantly decreased the number of registrations submitted on behalf of beneficiaries with multiple registrations, and further measures are not needed at this time.

Jewell Stewart Pratt Beckerson & Carr will watch developments related to the implementation of this Final Rule and will post updates as needed.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

USCIS Permanently Increases Automatic Extension Period for Certain EADs

On Friday, December 13, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Final Rule (FR) in the Federal Register (89 FR 101208) that will permanently increase the automatic extension period of employment authorization for certain Employment Authorization Document (EAD) applicants who apply for an EAD renewal on a timely basis. The rule affects several EAD applicant classes, including H-4 spouses of certain H-1B nonimmigrants.

The rule is effective on January 10, 2025, 30 days after the date of publication in the Federal Register. In the FR, USCIS determined that after two Temporary Final Rules (TFRs) the current 180-day automatic extension under 8 CFR 274a.13(d) does not provide USCIS enough time to address large spikes in EAD filings, other circumstances that may occur in the future, and increase renewal EAD application processing times. Making the increase permanent helps prevent eligible renewal EAD applicants from losing employment authorization due to USCIS processing delays. USCIS notes that “lapses in employment authorization and EAD validity can result in substantial harm to noncitizens, their families, their employers, and the public at large.”

USCIS has therefore permanently amended existing regulations to increase the automatic extension period to up to 540 days starting the day after the EAD expiration date. The increase will apply to any eligible renewal EAD applicant with an application filed on or after May 4, 2022, and pending on or after May 4, 2022.

USCIS’ announcement of the FR is available on the Newsroom page of its website. A list of affected EAD applicant classes is available on the Automatic EAD Extension page of its website. Jewell Stewart Pratt Beckerson & Carr will watch for developments related to this FR and will post updates here as they occur.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

Department of State Publishes Significant J-1 Skills List Revision

Effective today, December 9, 2024, the Department of State (DOS) published an update to the J-1 Exchange Visitors Skills List, a list of countries that require the services of individuals engaged in specific fields of specialized knowledge or skills. The list determines whether a J-1 visa visitor is subject to the two-year foreign residence requirement, that requires certain J-1 exchange visitors to return to their home country for two years after their J-1 program, under Section 212(e) of the amended Immigration and Nationality Act. 

The update has the following takeaways:

• J-1 visitors who were admitted in J status or obtained J status before December 9, 2024, are no longer subject to the requirement if their country is not designated in this revised Skills list. 

• The list removes several countries, notably China and India, subject to the two-year foreign residence requirement. The list removes 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.

• DOS did not update skills in this update. For countries on this revised 2024 Skills List, the skills are the same as in the 2009 Skills List.

• However, a J-1 visitor may be subject to the requirement based on funding from the U.S. government or home country government, or from receiving graduate medical education or training in the United States. This update only affects former J-1 visa holders who were subject to the two-year foreign residence requirement based on the Skills List.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

Change of Address Filing Requirements for Foreign Nationals

U.S. immigration law requires that all foreign nationals, including lawful permanent residents (green card holders), report any change of address to USCIS within ten days of moving by submitting Form AR-11, the Alien's Change of Address Card. Note that changing your address with the U.S. Postal Service (USPS) does not update your address with USCIS, and USPS will not forward mail from USCIS. As USCIS increasingly adopts online systems, the following are the two current methods for reporting address changes:

• Online filing via myUSCIS:

• Create a myUSCIS account online at https://my.uscis.gov/

• Use the self-service “Change-of-Address” tool found in your USCIS Online Account under the My Account dropdown menu.

• Paper Form Submission: Complete and mail a paper Form AR-11 to update your address.

Timely compliance with this reporting requirement is essential, as failure to update your address could jeopardize your immigration status or ability to remain in the United States.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

H-1B “Cap” reached for FY 2025

On December 2, 2024, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2025.

The USCIS announcement states:

“We will send non-selection notices to registrants through their online accounts over the next few days. When we finish 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.

We 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. We 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.”

No further selections for new H-1B petition filings will take place for FY 2025, and the next registration period for FY 2026 will take place sometime in Q1 2025.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

USCIS now requires Form I-693 medical report to be submitted with Form I-485

As of today, December 2, 2024, U.S. Citizenship & Immigration Services (USCIS) is requiring Form I-693, Report of Immigration Medical Examination and Vaccination Record to be submitted with Form I-485, Application to Register Permanent Residence or Adjust Status. If Form I-693 is not submitted with the Form I-485, USCIS can reject the entire filing. USCIS has updated the Form I-485 instructions to reflect this change.

This is a departure from USCIS’ previous practice of allowing the I-485 to be filed without the medical exam, and either issuing a Request for Evidence (RFE) for the medical, or allowing the applicant to bring the medical to a USCIS interview.

Form I-693 is required to demonstrate to the government that the applicant is free from health conditions that would make them inadmissible based on health-related grounds.

The full announcement can be found here.

© Jewell Stewart Pratt Beckerson & Carr PC 2024