U.S. Citizenship & Immigration Services (USCIS)

Updated USCIS Guidance on O-1 Extraordinary Ability Visa Category

Effective January 8, 2025, U.S. Citizenship and Immigration Services (USCIS) published an update to its Policy Manual, providing clarity and consolidation of existing policy on how USCIS evaluates evidence for O-1 eligibility. These Policy Manual updates provide helpful clarity for founders and/or entrepreneurs to potentially demonstrate that they meet various O-1 criteria. 

Highlights of the updated guidance include the following items:

  • Clarifies that although O beneficiaries may not petition for themselves, a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file a petition on behalf of the beneficiary.

  • Provides examples of acceptable evidence to prove an individual works in a critical or emerging technology area (including AI).

  • Provides guidance on occupational transitions, such as a STEM professor transitioning to a researcher position for a private company, or an engineer transitioning to a leadership position for a tech startup. These types of transitions can result in tricky cases, as it must be shown that the prospective work is within the beneficiary’s “area of extraordinary ability.” USCIS interprets the phrase “area of extraordinary ability” broadly, such that it can include multiple occupations involving shared skillsets, knowledge, and/or expertise, to the extend they are considered within the same “area of extraordinary ability.” The guidance provides a list of relevant factors to consider, including, but not limited to the following items:

    • whether the past and prospective occupations are in the same industry or are otherwise related based on shared duties or expertise;

    • whether the prospective occupation is a supervisory, management, or other leadership position that oversees the beneficiary’s previous position, or otherwise requires shared knowledge, skills, or expertise; and

    • whether it is common for persons in one occupation to transition to the other occupation based on their experience and knowledge. 

  • Clarifies the circumstances under which USCIS limits an extension of stay to one year and when USCIS may grant a longer extension, up to three years. When evidence shows the beneficiary will engage in a new event or activity, USCIS may grant an extension of stay for a period determined to be necessary to accomplish the new event/activity, but not to exceed three years. The guidance provides an example in which a researcher’s work involves a different phase or trial for the same research project. Such work would count as a new project and the employer could request a three-year extension.

  • Provides guidance on the types of supporting documentation acceptable to meet the regulatory criteria.  Some of the most noteworthy points for entrepreneurs and startups under the O-1A guidance confirm the following:

    • To meet the “command-a-high salary” criterion, a startup founder or entrepreneur may present evidence that the business has received significant funding. Such evidence can be used to evaluate the credibility of submitted contracts, job offer letters, or other evidence of prospective salary or renumeration for services.

    • Meeting the “critical or essential role” criterion requires a showing that the beneficiary works for a “distinguished” company or organization. The guidance lists several factors that can be helpful for evaluating the reputation of startups, including the scale of its customer base, media base, and longevity. Also, USCIS will consider the amount of funding received from government entities, venture capitalists, and other funding sources.

    • For a beneficiary in the early stage of their career, it can be proven that they meet the “critical or essential role” criterion by proving they are a contributor of intellectual property to a startup business that has a distinguished reputation. Also, for a beneficiary in a supporting role rather than a leadership role, USCIS considers factors such as whether the beneficiary’s performance is integral or important to the organization’s goals or activities, especially in relation to others in similar positions within the organization.

    • Also relevant to meeting the “critical or essential role” criterion:  A letter, or other documentation from an interested government agency (including a quasi-governmental entity) can serve as valuable evidence if it demonstrates the agency funds the beneficiary or the work in which the beneficiary plays a critical or essential role.

  • Lastly, the Policy Manual update added a new item to the list of documents that could serve as relevant evidence for meeting the “totality of evidence” requirement, in which it is determined whether the beneficiary is among the small percentage at the top of the field and that the beneficiary has sustained national or international acclaim. The new item entails a letter or other documentation from an interested government agency, including a quasi-governmental entity, that attests in detail to the beneficiary’s sustained national or international acclaim.

© Jewell Stewart Pratt Beckerson & Carr PC 2025

 

USCIS temporarily increases automatic extension period for certain EADs

On Monday, April 8, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Temporary Final Rule (TFR) in the Federal Register (89 FR 24628) that provides a temporary increase in the automatic extension period of employment authorization for certain Employment Authorization Document (EAD) applicants who apply for 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 from the date of publication until September 30, 2025. In the TFR, USCIS finds that the current 180-day automatic extension under 8 CFR 274a.13(d) is inadequate to prevent approximately 800,000 EAD renewal applicants from losing employment authorization due to USCIS processing delays. USCIS notes that “Such widescale lapses in employment authorization and EAD validity would result in substantial and unnecessary harm.”

USCIS has therefore temporarily amended existing regulations to increase the automatic extension period to up to 540 days from the EAD expiration date. The increase will apply to any eligible renewal EAD applicant (1) with an application filed on or after October 27, 2023, and pending on or after April 8, 2024; or (2) who files a renewal EAD application during the 540-day period starting April 8, 2024 and ending September 30, 2025.

USCIS’ announcement of the TFR 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 TFR and will post updates here as they occur.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

USCIS issues Final Rule on H-1B cap registration process

On Friday, February 2, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Final Rule in the Federal Register that will bring significant changes to the annual H-1B cap selection process (89 FR 7456). 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).  Although the NPRM included several H-1B modernization measures, the Final Rule is solely about H-1B cap selection.  The other proposals in the NPRM are expected to be the subject of a separate Final Rule at a later date.

The Final Rule on H-1B cap selection changes will take effect on March 4, 2024, just prior to the opening of the upcoming H-1B cap registration window on March 6. The Final Rule will make the upcoming and future H-1B cap selection processes “beneficiary-centric.”  Details follow.

Making H-1B cap selection lottery “beneficiary-centric”

The Final Rule bases the H-1B cap selection process on unique beneficiaries rather than unique registrations. It is hoped that this will reduce the incentive for employers and individuals to pursue registrations without the existence of a bona fide job offer. Multiple employers may register the same beneficiary, assuming each has a bona fide job for them.  If a beneficiary registered by multiple employers is selected in the H-1B cap lottery, each employer will receive a selection notice and may file an H-1B petition based on their bona fide job offer that the beneficiary intends to accept -- for example, two employers each offering part-time work to the beneficiary. The Final Rule does not bar related entities from registering the same beneficiary, so long as there is a legitimate business need for those related entities to file multiple H-1B petitions for the same beneficiary.

The key principles in the Final Rule are that a beneficiary will be entered only once in the lottery regardless of the number of employers registering the beneficiary, and that a bona fide job offer must underlie each registration.

To enforce the limit of one H-1B cap selection per beneficiary, beneficiaries will be identified not only by the same information used currently, but also by their passport data (or travel document data if the beneficiary is a refugee or stateless and therefore cannot obtain a passport). Passport or travel document data will be required in all cases. In addition, with limited exceptions, the beneficiary must use the same passport or travel document in the registration that they will use to enter the United States on their future H-1B visa. If an individual has more than one passport or travel document, only one may be used for H-1B cap registration.

Jewell Stewart & Pratt will watch for developments related to the other H-1B modernization proposals that are not yet final and will post updates here as they occur.

© Jewell Stewart & Pratt PC 2024

Government visits to H-1B and L-1 workplaces continue in the hybrid/remote work era

In prior blog posts we have drawn attention to U.S. Citizenship & Immigration Services (USCIS) making unannounced site visits to workplaces where H-1B or L-1 workers are employed and other measures the agency uses to detect H-1B fraud. Officers make such visits to gather information about employers’ compliance with the H-1B and L-1 programs. Employers agree to site visits when signing Form I-129, “Petition for Nonimmigrant Worker,” which states that “supporting evidence submitted may be verified by USCIS through any means determined appropriate… including but not limited to, on-site compliance reviews.” That said, site visits are voluntary, and it is a best practice for clients to discuss with their immigration attorney whether they should participate in such visits.

USCIS information about site visits can be found on its website. It is important to note that, in this era of remote and hybrid work, government officers do not consider themselves limited to visiting employer premises (or the office of their client if the beneficiary is assigned to one): they may also visit H-1B or L-1 workers at their home offices. Indeed, immigration attorneys and their clients have reported such visits taking place.

Site visits are usually conducted without notice, complete in less than an hour, and consist of up to three stages: a meeting with a staff member of the employer, a look at the premises, and a meeting with the employee beneficiary of the visa petition. The purpose of the visit is to verify the employer’s existence, the validity of the information in the visa petition, and whether the foreign national is complying with the terms of the petition. The inspector may ask for documentation to compare with the information in the visa petition and may wish to address any inconsistencies discovered.

A visit to a home office may necessarily differ from a visit to the employer’s premises, but the following response is suggested as a best practice in all cases. First, in the event of a site visit, employers and/or employees should request the name, title, and contact information of the site investigator, and contact their immigration attorney immediately. Though most visits are unannounced and USCIS will not reschedule a visit to accommodate counsel, counsel is allowed to be present during a site visit and might be permitted to participate via phone. If counsel cannot attend, the employer should write a detailed description of what happened to be shared with counsel afterwards. It is advised that employers and employees not speak with government agents or contractors without a witness present.

Employers should also be aware of state requirements related to immigration worksite enforcement. A place to start, and for past information on California state requirements, is our blog post here.

© Jewell Stewart & Pratt PC 2024

USCIS adopts new fee schedule effective April 1, 2024

Updated March 28, 2024

On January 30, 2024, U.S. Citizenship & Immigration Services (USCIS) announced that it had published a final rule to adopt a new filing fee schedule. This is the first new fee schedule issued by USCIS since 2016. In its Frequently Asked Questions page USCIS has posted a New Fee Schedule Table that lists the old and new fees side by side. Changes of interest include:

  • A new “asylum program fee” of $600 per I-129 petition and I-140 petition. (Nonprofits and universities are exempt from this fee.)

  • An attempt to mitigate higher fees for employers by offering special discounts for small employers; for example, a reduced “asylum program fee” of $300. “Small employer” means those with 25 or fewer full-time equivalent employees.

  • A $50 discount for those who choose online filing over paper filing, when online filing is offered. 

  • Premium Processing Service timeframes will be counted in business days, not calendar days as before.

  • Separate fees are established for Form I-129, Petition for a Nonimmigrant Worker, depending on the nonimmigrant classification sought (i.e. H-1B, TN, E-3, etc.).

  • Separate filing fees will be required for Form I-131 (travel document) and Form I-765 (employment authorization) when filed with Form I-485 (adjustment of status), whether or not they are filed together.

The new fees and rules will become effective on April 1, 2024. There are increases in all application and petition types typically filed in employment-related cases, including Form I-129, petition for nonimmigrant worker; Form I-539, application for change or extension of status; Form I-140, petition for immigrant worker; Form I-485, application to register permanent resident status or to adjust status; and Form I-765, application for employment authorization document.

USCIS warns that applications and petitions postmarked or filed on or after April 1, 2024 must include these new fees. If the new fees are not included with such a submission, it will be rejected.

In addition, revised forms will also become effective on April 1, 2024, along with the new fees. USCIS says it will accept prior editions of most forms during a grace period from April 1, 2024, through June 3, 2024, as long as they are accompanied by the new fee. However, there will be no grace period for some forms, including Form I-129 and Form I-140, because they must be revised with a new fee calculation. Filers must be careful to use the correct forms in each case, as well as to include the correct filing fee.

Government processing of immigration applications and petitions is funded by these user fees and not by taxpayer dollars. These filing fee increases, which in some cases are significant, reflect USCIS's calculation of increases in the work associated with case adjudications and avoiding backlogs.

© Jewell Stewart & Pratt PC 2024

H-1B "cap" reached for FY 2024

U.S. Citizenship and Immigration Services (USCIS) announced on December 13, 2023 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2024. 

The USCIS announcement states:

USCIS has received a sufficient number of petitions needed 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) 2024.

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 2024 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 2024 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 2024, and the next registration period for FY 2025 will take place sometime in Q1 2024.

© Jewell Stewart & Pratt PC 2023

USCIS runs second lottery on 2023 (FY 2024) H-1B registrations

On July 31, 2023, USCIS announced that it ran a second H-1B lottery on 2023 (FY 2024) registrations. The USCIS announcement states:

We now have randomly selected, from the remaining FY 2024 registrations properly submitted, a sufficient number of registrations projected as needed to reach the cap, and have notified all prospective petitioners with selected registrations from this round of selection that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2024, and only for the beneficiary named in the applicable selected registration notice.

An H-1B cap-subject petition must be filed within the period indicated on the registration selection notice; for this round of selectees, that period is August 2 to October 31, 2023.

As we noted before, in 2021 (FY 2022) a second and third selection process took place in August and November, respectively, to make unused H-1B visas available. No additional selections took place in 2022 (FY 2023). USCIS has not yet announced whether and when a third selection might take place later in 2023 (FY 2024).

© Jewell Stewart & Pratt PC 2023

H-1B "cap" registration dates announced for 2023 (FY 2024)

On January 27, 2023, USCIS announced the dates for the upcoming H-1B cap registration window and selection process. Selection will be via random lottery, as in prior years.

In its announcement USCIS stated that the registration period will open at 9:00am PT / 12:00pm ET on March 1, 2023 and will close at 9:00am PT / 12:00pm ET on March 17, 2023. The random lottery will be conducted following the close of the registration period, and account holders will be notified of selected registrations by March 31, 2023.

USCIS also stated that registrants will be able to create new accounts beginning at 9:00am PT / 12:00pm ET on February 21. Employers MUST NOT create an account before this date because it will lack H-1B registration functionality.

© Jewell Stewart & Pratt PC 2023

USCIS Returns to Concurrently Processing H-4 and L-2 Dependent Applications

Pursuant to a recent settlement agreement, USCIS has agreed to resume its earlier practice of adjudicating I-539 status extensions and I-765 work permit applications at the same time that the principal’s I-129 is adjudicated - a.k.a. “bundling.” In recent years, dependents’ status extension and work permit applications would be adjudicated several months or even years later than the principal’s status extension filing. “Bundling” is only available for concurrently filed applications and will be applied to matters filed under regular or Premium Processing. The practice should be in effect for at least two years.

© Jewell Stewart & Pratt PC 2023

H-1B "cap" registration dates announced for 2022 (FY 2023)

On January 28, 2022, USCIS announced the dates for the upcoming H-1B cap registration window and selection process. Selection will be via random lottery, as in prior years. (USCIS has abandoned its plans for a wage-based selection process.)

In its announcement USCIS stated that registrants will be able to create new accounts beginning at 9AM PT / 12 PM ET on February 21. Employers MUST NOT create an account before this date because it will lack H-1B registration functionality.

USCIS also stated that the registration period will open at 9AM PT / 12 PM ET on March 1 and close at 9AM PT / 12 PM ET on March 18. The random lottery will be conducted following the close of the registration period, and account holders will be notified of selected registrations by March 31, 2022.

© Jewell Stewart & Pratt PC 2022