Recent changes in US immigration
The immigration authorities in the United States have recently released a series of updates and revisions which may impact some applicants and employers.
Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2025
US Citizenship and Immigration Services (USCIS) has received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year 2025 with start dates on or before 31 March 2025, under the H-2B supplemental cap temporary final rule (FY 2025 TFR). 7 January 2025 was the final receipt date for petitions requesting supplemental H-2B visas under the FY 2025 first half returning worker allocation.
USCIS is still accepting petitions for H-2B nonimmigrant workers with start dates on or before 31 March 2025, for the additional 20,000 visas allotted for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras (country-specific allocation), as well as those who are exempt from the congressionally mandated cap.
The FY 2025 TFR was published on 2 December 2024, with an immediate effective date. USCIS immediately began accepting H-2B petitions with start dates on or before 31 March 2025, for the 20,716 returning worker allocation for the first half of FY 2025, and the 20,000 allocation for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras who are exempt from the returning worker requirement.
Petitioners with start dates on or before 31 March 2025, whose workers were not accepted for the 20,716 returning worker allocation are encouraged to file under the country-specific allocation while visas remain available. As of 7 January 2025, USCIS has received petitions requesting 3,678 workers under the 20,000 visas set aside for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras.
H-1B Final Rule, H-2 Final Rule, and Revised Form I-129 Effective 17 January 2025
The Department of Homeland Security’s H-1B final rule and H-2 final rule take effect on 17 January 2025, modernizing and improving requirements for the H-1B nonimmigrant and H-2 nonimmigrant visa programs.
USCIS will also publish a revised Form I-129, Petition for a Nonimmigrant Worker (edition date 01/17/25) on 17 January 2025 reflecting combined changes associated with the two final rules. As previously announced, the 01/17/25 edition of Form I-129 goes into effect on 17 January with no grace period, because the revised edition is necessary to apply the final rules.
The H-1B final rule modernizes the H-1B program by streamlining the approval process, increasing its flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program. The H-2 final rule significantly strengthens worker protections by, among other things, imposing new consequences on companies that charge prohibited fees or violate our labour laws, and provides greater flexibility for H-2A and H-2B workers. Both rules were published in the Federal Register on 18 December 2024.
Effective 17 January 2025, USCIS will reject Form I-129 petitions received using the 04/01/24 edition of Form I-129. Those who file Form I-129 on paper by mail, please note that:
- USCIS will accept the 04/01/24 edition of Form I-129 if it was received before 17 January 2025;
- USCIS will reject the 04/01/24 edition of Form I-129 if it is received on or after 17 January 2025; and
- USCIS will only accept the 01/17/25 edition of Form I-129 if it is received on or after 17 January 2025.
USCIS Updates Filing Procedures for Form I-140
US Citizenship and Immigration Services (USCIS) today announced a Federal Register notice (FRN) providing updated procedures for submitting a Form I-140, Immigrant Petition for Alien Workers, accompanied by a permanent labour certification, application for Schedule A designation, or national interest waiver (NIW) request.
On 1 June 2023, the US Department of Labor (DOL) implemented a new system for permanent labour certifications, called the Foreign Labour Application Gateway (FLAG), and revised the Application for Permanent Employment Certification (Form ETA-9089) for use within the FLAG system. The revised Form ETA-9089 collects more detailed information about the job opportunity, including specific worksite locations, telecommuting options, and the foreign worker’s qualifications. Employers who file Form ETA-9089 through the FLAG system and who receive a labour certification approval generally receive a two-page Final Determination from DOL electronically.
The instructions to Form ETA-9089 state that only a signed Final Determination must be submitted with the Form I-140 petition as evidence of a permanent labour certification approval. This limited requirement is because, as a part of this process change, USCIS receives most of the information about the permanent labour certification directly from DOL under a data sharing agreement (PDF).
USCIS is announcing through this FRN that employers whose labour certifications were processed in the FLAG system must include a printed copy of the electronic Final Determination with their Form I-140, and that USCIS will consider this printed copy as an original, approved labour certification. The Final Determination must be completed and electronically signed by DOL, and must be signed by the foreign worker, employer, and the employer’s attorney or agent, if applicable. In addition, the FRN states that Form I-140 petitions for Schedule A occupations must contain a completed, uncertified Form ETA-9089, including all applicable appendices, a signed Final Determination, and a valid prevailing wage determination tracking number in Section E, Item 1 of the Form ETA-9089. Finally, the FRN states that a Form I-140 petition with an NIW request must contain a copy of the Form ETA-9089, Appendix A, and a signed Final Determination.
Since 1 June 2023, USCIS has been adjudicating Form I-140 petitions filed with permanent labour certification Final Determinations, Schedule A applications, and NIW requests using the edition of the Form ETA-9089 and applicable appendices, developed for the FLAG system, so this FRN does not change any operations or processes. Instead, this FRN is meant to make the public aware of the new documentary requirements for permanent labour certification approvals, Schedule A applications, and NIW requests submitted with Form I-140 petitions following the implementation of the FLAG system.
USCIS Updates Guidance on EB-2 National Interest Waiver Petitions
US Citizenship and Immigration Services (USCIS) is updating its policy guidance to clarify how we evaluate eligibility for the second preference employment-based (EB-2) classification for immigrant petitions filed with a request for a national interest waiver (NIW).
In general, an employer files an EB-2 petition using Form I-140, Immigrant Petition for Alien Workers, after obtaining a labour certification from the Department of Labor. USCIS, however, can waive the requirement of a job offer, and thus, the labour certification if it is in the interest of the United States. In addition, individuals seeking an NIW may file a petition on their own behalf.
A petitioner seeking an NIW must first demonstrate that they qualify for the underlying EB-2 classification as either a member of the professions holding an advanced degree or an individual of exceptional ability in the sciences, arts, or business.
The new guidance explains how, for advanced degree professionals seeking an NIW, USICS considers whether the occupation in which the petitioner proposes to advance an endeavour is a profession and, if applicable, whether the five years of post-bachelor’s experience is in the specialty. The guidance also addresses how, for persons of exceptional ability seeking an NIW, that exceptional ability must relate to the endeavour proposed as part of the NIW request. USCIS determines the relationship of exceptional ability to the proposed endeavour on a case-by-case basis, considering any shared skillsets, knowledge, or expertise.
In addition, this new guidance provides information about how USCIS evaluates whether a proposed endeavour has national importance and explains how USCIS evaluates evidence, such as letters of support and business plans, when determining whether a person is well positioned to advance an endeavour.
This new guidance builds on a previous Policy Manual update that discussed the unique considerations for persons with advanced degrees in science, technology, engineering, and math (STEM) fields and entrepreneurs.
This guidance, contained in Volume 6, Part F, Chapter 5 of the Policy Manual, is effective immediately and applies to requests pending or filed on or after the publication date. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance. For more information and filing tips, see Employment-Based Immigration: Second Preference EB-2.
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