Category: Articles

As published in the Immigration Daily on April 25, 2025

International travel remains in the bull’s-eye of the Trump Administration’s crackdown on opposing views and nonimmigrants have less rights on entry than permanent residents, although even some of the latter are also being targeted for removal. Generally, entering nonimmigrants can be removed by Customs and Border Protection (CBP) without immigration court proceedings unless they request political asylum under which they could be relegated to expedited removal proceedings. Permanent residents who contest admissibility are entitled to a hearing before the immigration court in most situations.

This comes about through President Trump’s national security campaign promise and his Executive Order 14161 for enhanced screening and vetting across government agencies to “identify all resources that may be used to ensure that all aliens seeking admission to the United States, or who are already in the United States, are vetted and screened to the maximum degree possible….” DCPD-202500128.pdf

Applicants for visas at US embassies and consulates face enhanced vetting there and also by Customs and Border Protection at the borders when they enter the US. Nonimmigrants in the US with visas who do not have to visit consular posts or are visa exempt, e.g. Canadians, are experiencing more frequent and more intrusive inspections and questioning than in the past. The crackdown has even moved inland with over 300 nonimmigrants in the country having their visas revoked with some being detained in a major escalation of enforcement with Secretary of State Marco Rubio saying that visa holders charged with a crime while in the United States should automatically lose their visa. https://www.nytimes.com/2025/03/28/us/politics/rubio-immigration-students-ozturk-chung-khalil.html (In the past, nonimmigrants having their visas revoked by the State Department were usually allowed to remain in the US with the revocations taking effect upon their leaving).

Especially targeted now are individuals requesting initial or renewal visas in the student and exchange visitor categories. A number of recent articles have covered Secretary of State Marco Rubio’s unpublished 1700 word cable on March 25, 2025 titled “Action Requests: Enhanced Screening and Social Media Vetting for Visa Applicants” describing the process consular officers must follow when reviewing M, F, and J student and exchange visitor visas. Consular officers are to refer certain student and exchange visitor visa applicants to the fraud prevention unit for a mandatory social media check. Those to be scrutinized are:

• Someone suspected of having terrorist ties or sympathies.
• Who had a student or exchange visa between 10/7/23 and 8/31/24.
• Who has had a visa terminated since that October date.

It appears that criticism of President Trump or Israel might be sufficient grounds for visa denial. Consular officers are to deny where applicants demonstrate “a degree of public approval or public advocacy for terrorist activity or a terrorist organization,” which could be evident in “conduct that bears a hostile attitude toward US citizens or US culture”.

This also appears part and parcel of an Administration policy of making encounters with CBP and ICE more volatile, escalatory and humiliating than in the past in detaining and removing visitors from abroad upon entry under visas other than student and exchange visitors https://www.rsn.org/001/im-the-canadian-who-was-detained-by-ice-for-two-weeks-it-felt-like-i-had-been-kidnapped.html; https://www.cnn.com/2025/03/18/us/rasha-alawieh-brown-university-wwk/index.html ; revoking visas and attempting to remove those with legal status for even a DUI in the past https://thehill.com/homenews/education/5225218-university-of-minnesota-ice-arrest-visa-revoked/; and even scrutinizing the backgrounds of green card holders and detaining them for political activities and past minor infractions of law. https://www.nytimes.com/2025/03/28/us/politics/rubio-immigration-students-ozturk-chung-khalil.html ; https://www.cbsnews.com/news/yunseo-chung-columbia-student-south-korea-ice-deportation/; https://www.wbur.org/news/2025/03/19/new-hampshire-fabian-schmidt-ice-detention  

In a letter to the editor of the Washington Post on April 5, 2025, titled “not what I voted for,” the writer indignantly states that “A German friend of my son recently flew to Boston and was put in a room for two hours by immigration officials. She told my son that they searched her belongings, unlocked her phone and looked at all of her messages and photos trying to find any negative comments about Trump so they could send her back to Europe. Some of my own friends have also heard such stories. Some of these people have green cards. News like this is spreading in Europe, and people are canceling trips.” https://www.washingtonpost.com/opinions/2025/04/03/tufts-university-ice-arrests-letters/?utm_source=chatgpt.com

Also to watch out for is the looming travel ban of which final details are not known, but a draft of which includes 43 countries deemed red with a complete travel ban, orange for sharply restricted travel in which people traveling on immigrant or tourist visas might not be able to enter and be subject to mandatory in-person interviews to receive a visa, and yellow in which the countries have 60 days to address concerns including providing insufficient information on incoming travelers, inadequate security in issuing passports, and selling citizenship to persons from banned countries. https://www.newsweek.com/trump-travel-ban-list-2045321 It is not been established whether the ban will apply to persons already holding permanent resident cards.

Further, the Department of State under Mr. Rubio is now using the visa revocation authority as being against US interests capriciously with the latest target being South Sudan. Last Saturday, in revoking all visas for nationals of that country, he said,  “effective immediately, the United States Department of State is taking actions to revoke all visas held by South Sudanese passport holders and prevent further issuance to prevent entry into the United States by South Sudanese passport holders.” The reason: that country refused to accept a deportee from the US – and the reason that it refused was that the deportee was not South Sudanese, but a national of the Democratic Republic of Congo. https://www.upi.com/Top_News/US/2025/04/08/South-Sudan-deport-visa-revoke/8401744112006/

Given all of the above showing crackdowns on nonimmigrants on all levels whether outside or inside the country, that nonimmigrants entering the country have almost no rights and can be easily detained and removed at ports of entry, the looming travel ban, and capricious use of power in immigration matters by this Administration, visa holders in the US may wish to consider the dangers of nonessential travel before booking passage to visit family, get away on holidays, go home during school breaks, or any myriad number of reasons. Those who have changed status to longer-term nonimmigrant statuses in the US may think twice before booking visa appointments at US consulates abroad to have visas stamped in their passports as visas are only for travel and USCIS change of status approvals are sufficient to allow individuals to remain legally in the US. To be caught outside the US when the travel ban comes down (if subject to it) could be a life altering disaster to some. It appears clear that this Administration is willing to sacrifice US travel, tourism and foreign student revenues, and international goodwill to achieve its political aims.

As published in the Immigration Daily on March 17, 2025

With a blizzard of immigration actions going far beyond a crackdown on criminal aliens, President Trump is exploding the hopes of those who voted for him thinking that he would only expel the criminal element of the immigrant population. If he obtains the $175 billion in budget funding for his immigration program included in the passed Senate resolution in February, he would have the monies required for mass deportation.

Not only are the undocumented at risk of removal, but also those who do not have permanent resident or US citizenship status as seen in the present actions of the administration. A small look at some recent actions of the administration shows that even those with forms of legal status have risk of being ensnared in Mr. Trump’s recent actions:

1. Social media screening is coming back in a big way in a Federal Register (March 5, 2025, Vol. 90, No. 42, pg. 11324) https://www.federalregister.gov/documents/2025/03/05/2025-03492/agency-information-collectio 60 day notice for comment promoting tighter vetting of applications by USCIS in fulfillment of Executive Order 14161, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” directing implementation of uniform vetting standards collection of information for rigorous vetting and screening of all grounds of inadmissibility or bases for the denial of immigration-related benefits. Social Media Identifier(s) on immigration forms and/or information collection systems are to be collected from certain populations of individuals on applications for immigration-related benefits for enhanced identity verification, vetting and national security screening and inspection.

This will delay the time for adjudications as USCIS officers and/or administrative staff will spend countless hours poring over applicants’ social media accounts. An idea of the immensity of such screening is USCIS’ estimate of the size of the populations to be screened in each application category – I-485 Application to Register Permanent Residence or Adjust Status, 1,060,585; I-131 Application for Travel Document, 1,073,059; N-400 Application for Naturalization 909,700; I-589 Application for Asylum and Withholding of Removal 203,379; I-751 Petition to Remove Conditions on Residence, 140,000; I-590 Registration for Classification As Refugee, 106,200; I-730 Refugee/Asylee Relative Petition 13,000; and I-829 Petition by Entrepreneur to Remove Conditions, 1010.

2. Enhanced vetting not only affects those requesting immigration benefits of USCIS in the US, but also nonimmigrant visa holders entering the country by US Customs and Border Protection inspectors. A recent article, “Extreme Consistency: How Attorneys Can Prepare for Extreme Vetting at the Border,” by Dan Berger, Brian Halliday and Stephen Yale-Loehr Extreme Consistency: How Attorneys Can Prepare for Extreme Vetting at the Border pointed to two recent refusals of entry into the US – one a H-1B computer scientist in which CBP called the employer contact on the H-1B petition who could not remember the details or knew that the person was flying that day with the result that the scientist received expedited removal; and the second a PhD engineering student from China who received a F-1 visa, and upon CBP finding that the resume submitted at the consulate was shortened from the longer version she had on her laptop, had her withdraw the request for admission and return to China to apply for a new F-1 visa stamp. The authors upon speaking with three levels of CBP officers learned that CBP has new instructions to vigorously scrutinize applicants for admission to the US.

So it appears that travel in and out of the US for nonimmigrant visa holders will be tinged with danger and nonimmigrants in the US may wish to take less frequent trips and, if on working statuses, coordinate international trips with their employers to ensure that the employer’s signatory on the petition refreshes himself or herself with the nonimmigrant’s responsibilities.

3. The new NTA policy announced by USCIS on February 28, 2025 in Policy Memorandum PM-602-0187, “Subject: Issuance of Notices to Appear (NTAs) in Cases Involving “Inadmissible and Deportable Aliens” Policy Memo_Template is a step back to the past in which unfavorable decisions by the agency to applicants who had no legal status to fall back on were usually accompanied by a notice to appear in the immigration court for removal proceedings. Other than for denied cases involving criminal offenses, fraud or misrepresentation, the memo says that “USCIS will issue a new NTA where, upon issuance of an unfavorable decision on a benefit request, the alien is not lawfully present in the United States.” For employment-based petitions, NTA’s will be issued to beneficiaries where the decision on the petition is unfavorable, the beneficiaries are not lawfully present in the US or otherwise removable; and the beneficiary is a signer on an I-129 petition for nonimmigrant worker such as E-1/E-2 treaty traders and treaty investors, H-1B beneficiary owners, and O-1 beneficiary owners.

Prosecutorial discretion to withhold issuing NTA’s is limited and “should only be exercised in very limited and compelling instances and on a case-by-case basis after considering all USCIS and DHS guidance, DHS’s enforcement priorities, the individual facts presented, and any DHS interests implicated…”

So this will seemingly make maintaining nonimmigrant status a better alternative than simply forgoing extensions of such in favor of applying for and receiving EAD’s (employment authorization documents) which by themselves do not confer status.

We are returning to a time in which interviews in the field offices of USCIS may turn out to be harrowing experiences once again. Questions on whether interviewees may be detained in their visits to the field offices may once again be prominent. Many legacy INS and USCIS officers have not wanted to make on the spot unfavorable decisions in the past for sake of their own safety and fear that physical confrontations might result. On the other hand, the new policy may bring back another past method of handling such situations with the involved officer asking the applicant to wait and calling for officers attached to ICE to come before stating the decision and having them detain the applicant – an enhanced the risk to the applicant if the field office also contained an ICE section.

4. Expedited removal for parole program participants and those under regular removal proceedings. The Trump directive on expedited removal as announced by Caleb Vitello, Acting Dir., ICE, 1/23/25, https://www.dhs.gov/sites/default/files/2025-01/25_0123_er-and-parole-guidance.pdf, is fairly sneaky in directing ICE officers to review and consider in exercising enforcement discretion whether to initiate expedited removal against those who would be subject to it (not in the US for two years) by terminating all regular removal proceedings and/or any active parole status, and look for those whose paroles were automatically ended under Trump’s memorandum [terminating the Cuban Haitian Nicaraguan Venezuelan parole program]. Even for those who have applied for asylum or plan to do so in a timely manner, the directive says that the expedited removal process includes asylum screening, which it says is sufficient to protect the reliance interest of these parties.

5. In an unrelased fast track removal memo circulated at ICE on February 18, the Trump administration is directing ICE officers to identify immigrants who can be rapidly removed from the US without a court hearing through expedited removal. The memo that has been reported by various sources including AILA, targets low hanging fruit, some categories of whom hold some form of status and others (arriving aliens) who may under certain circumstances be eligible for adjustment of status to permanent residence https://www.washingtonpost.com/immigration/2025/02/28/ice-expedited-removal-mass-deportation/; https://english.gijotina.com/ice-memo-details-how-officials-will-try-to-deport-more-than-1-million-migrants-migrants/; Reuters Releases Updated Guidance From ICE on Expedited Removal:

• Persons previously released by CBP and have not applied for asylum who include paroled arriving aliens, aliens issued a CBP “notice to report” (NTR), and aliens processed for parole with alternative to detention (ATD) or parole with conditions (PWC).
• Arriving aliens who showed up at a port of entry that CBP determined to be inadmissible and previously released as long as they were inadmissible because of fraud or willful misrepresentation or lack of valid immigration documents. To this category, the memo says that there is no time limit on the ability to process under expedited removal.
• The memo further states that persons who won withholding of removal (proving fear of persecution or past persecution by satisfying a standard of probable rather than merely well-founded fear of persecution) should be considered for expulsion to another country.
• Also that immigration officers should rearrest immigrants that they have had to release in the past because they could not deport them since their homelands refused to take them back with the memo saying that the administration has made significant gains in having those countries take them back and also taking into account the potential for third country removals.

Expedited removal as expanded under Mr. Trump targets people who have been here for two years or less in any part of the US. Previous rollback under the Biden administration allowed its use for individuals caught within 100 miles of the border and within two weeks of entry. For those arriving legally through ports of entry lacking immigration documents or having misrepresented themselves/arriving aliens, expedited removal has generally only been used at a time proximate to entry in the author’s understanding and experience although it has been more used against people coming in under visa waiver programs who legally give up their rights to a hearing in writing by entering under a 90 day visa waiver program instead of through visa.

This is just the beginning of President Trump’s four years in office, and the immigrant communities – even those with some form of legal status at present – can expect many more shocks in the future. Everyone other than permanent residents and US citizens should be careful about their immigration statuses, not take unnecessary travel risks, and consult legal counsel before taking any steps that could jeopardize their statuses.

 

 

As published in Lexisnexis.com on January 16, 2025

As published in the Immigration Daily on January 22, 2025

USCIS’s second part of the H-1B proposed regulations, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers”, finalized on December 18, 2025, https://www.federalregister.gov/documents/2024/12/18/2024-29354/modernizing-h-1b-requirements-providing-flexibility-in-the-f-1-program-and-program-improvements goes into effect on January 17, 2025, three days before President-elect Donald Trump’s inauguration. The following are most of the changes with numbers in parentheses referring to the specific pages of the 400+ page rule:

1. Deference to prior adjudications is in and the rule accords deference to any Form I-129 petition – not just extension requests as DHS agreed with the benefits of applying it to all nonimmigrants using form I-129 involving the same parties and the same underlying facts, not just to those seeking extension of stay – “Those seeking a change of status, amendment or extension of stay, or consular notification of approval warrant the same deference unless there is a material error involved with the prior approval, material change in circumstances or eligibility requirements, or new, material information adversely impacting the petitioner’s, applicant’s, or beneficiary’s eligibility.” (122). However, when there has been a material change in eligibility requirements, USCIS adjudicators do not need to give deference. (123-124). Also, the deference policy will not be grandfathered in when changes in eligibility of the specialty occupation occur including the revised definition of and criteria for “specialty occupation” promulgated in this rule. (128). Further for amendments, DHS declined to give deference saying that if the change in client location requires a new LCA, the new location would constitute a material change. (129).
2. For “nonprofit research organizations”, the regulation recognizes that qualifying organizations may have more than one fundamental purpose and the final rule expands the definition of “nonprofit research organizations” to include entities with research as a fundamental activity, even if it is not their primary mission by replacing “primarily engaged” and “primary mission” with “a fundamental activity”. It would still have to be an important and substantial activity, although it need not be the organization’s principal or foremost activity. DHS declined to state that later stages of research, such as technology development and transfer, qualify for the exemption which is for basic and applied research (166). Documentation to prove nonprofit or tax-exempt status are tax returns, tax exemption certificates, references to the organization’s listing in the IRS most recent list of tax-exempt organizations, articles of incorporation, bylaws, or other similar documentation. It can of course be in the form of an IRS letter. (167). Use of a Professional Employer Organization (PEO) will not, standing alone, negate an employer’s cap-exempt qualification as USCIS will consider all relevant factors and review the totality of the evidence for each petition using the preponderance of the evidence standard to determine cap-exempt status (169).

USCIS also recognized in this context that beneficiaries may qualify for an exemption when not directly employed by a qualifying organization but still spending at least half of their time providing essential work supporting or advancing a fundamental purpose, mission, objective, or function of the qualifying organization (171-172).

3. Clarification that “normally” does not mean “always” in deciding specialty occupation degree is in. DHS backed away from reliance on the Occupational Outlook Handbook (OOH) and declined to define the word to mean “more often than not” saying the such a change would essentially require the petitioner to demonstrate a specific percentage of positions that require a bachelors degree and could potentially make it more difficult for petitioners to demonstrate eligibility if the evidence that they submitted such as the OOH does not specify a percentage. It also said that it declined to be wholly reliant on O*Net data to demonstrate a degree requirement as there are gaps in the data, particularly as the data does not provide information on whether the degrees required must be in a specific specialty directly related to the occupation and may also be lacking for new and emerging fields of technology or occupations not covered in detail. It emphasized that no one factor alone, including O*Net, is determinative on whether a particular position qualifies as a specialty occupation (91).
4. Range of qualifying degrees may have to be explained. However, also in is that although petitioners may accept a range of qualifying degree fields as qualifying, the required fields must be directly related to the job duties. It reiterated that “each of the fields must be directly related to the duties of the position.” “To only require the petitioner to justify that the degree of the beneficiary relates to the occupation conflates these two requirements. DHS does not agree that it is overly burdensome for the petitioner to establish how each field of study is in a specific specialty providing ‘a body of highly specialized knowledge’ that directly relates to the duties and responsibilities of the particular position….” (87-88).
5. Cap-gap extension is extended until April 1 of the next year.
6. A petitioner must establish that it has a bona fide position in the specialty occupation available as of the requested start date – this shocked many in the IT consulting industry and other staffing company advocates as seen in the rule’s comments and responses. To the concern that employers should assume the risk of finding sufficient productive work for an employee to perform and that USCIS has repeatedly confused speculative employment with a speculative project, and that the provisions are “individually and collectively incompatible with the entire practice of contracting specialized IT services”, USCIS did not agree that codifying the requirement of bona fide employment would eliminate IT staffing companies and countered that the position must be there at the time of filing the I-129 and without having the job there, there was no way to see if it is a specialized occupation (201-206). USCIS continued that it has long held that the H-1B classification is not intended as a vehicle for person to engage in a job search within the United States, or for employers to bring in temporary foreign workers to meet possible workforce needs arising from potential business expansions with the expectation of potential new customers or contracts (208). It further added that it was not proposing to require non-speculative projects for the entire validity period requested, but as noted in the proposed rule, the petitioner must demonstrate that at the time of filing, it has a nonspeculative position in a specialty occupation available to the beneficiary as of the start date of the validity period as requested on the petition (221).
7. Where the beneficiary is being staffed to a third party, the work to be performed by the beneficiary for the third-party must be in a specialty occupation and it is the requirements of the third party and not the petitioner that are the most relevant. A commenter complained that the provision for staffing companies to prove job requirements would place the staffing company in an impossible position if the end customer is unwilling to provide the necessary information; that there may be difficulty in obtaining necessary documents where there are second and third level staffing companies in between the petitioner and the end customer; and that customers may want no involvement with attesting to the requirements of the positions stating that these noncustomers have concerns over joint employment liability – to which DHS said that it remains the petitioner’s burden to establish eligibility for the benefit sought and stated the type of evidence that the petitioner could produce, e.g. master services agreement or statement of work, or documents reasonably obtainable from the third-party, e.g. letter from the client. (282).
8. Beneficiary-owners will be allowed to file, but USCIS will limit the validity of the initial H-1B petition and first extension to 18 months each. The final rule removes the reference to an employer-employee relationship requirement since it is now allowing beneficiary owners with more than 50% or with majority voting rights to qualify with 18 months on initial and extension petitions and further extensions in three year increments as long as they are performing specialty occupation duties the majority of the time although they may perform duties that are directly related to owning and directing the business. Commenters had concerns about the wage to be paid. For beneficiary owners, this would be a combination of occupations, and DHS said that the higher prevailing wage determination must be used, even when the beneficiary owner is performing nonspecialty occupation duties as authorized by USCIS in accordance with the final rule. (245). On commenters requesting flexibility on prevailing wage requirements reasoning that many startups may not see positive cash flow for a long period of time making it challenging for owners to both adhere to wage requirements and make investments to grow their business, and that LCA wage requirements force many entrepreneurs to take on entry level roles, as startups have limited cash reserves to pay market rate salaries for CEO and other C suite roles, DHS emphasized that it does not have the authority to alter statutory requirements or DOL regulations related to LCA’s and cannot provide any exceptions. (254).
9. Specialty occupation is changed from requiring a degree “in the specific specialty” to a degree “in a directly related specific specialty” and the definition of “directly related” is “a logical connection between the required degree, or its equivalent, and the duties of the position.” On a trade association suggestion that USCIS issued guidance that any engineering degree would support any engineering position in meeting the definition of specialty occupation, the response was that USCIS regularly approves H-1B petitions for qualified beneficiaries who are to be employed as engineers. (83) DHS further emphasized on software developers that the petitioner would have the burden to establish how the fields of study within any engineering degree provide a body of highly specialized knowledge directly relating to the duties and responsibilities of the software developer position (83).
10. The regulation revamps the language of the one in four criteria that a petitioner must meet to prove specialty occupation–

• The degree or equivalent is normally the minimum requirement to enter the occupation with USCIS now defining normally as characterized by that which is considered usual, typical, common, or routine – and that normally does not mean always.
• Clarifies that parallel positions among similar organizations is in the employer’s industry in the United States.
• The occupation normally requires a bachelors degree to perform the job duties of the position instead of the old definition “for the position”. Also if placing the H-1B by contract at a third party, the “normally” required refers to the third-party.
• The knowledge required for filling the specific duties of the proffered position are so specialized, complex, or unique that the knowledge required to perform is normally associated with the now revised degree or equivalent requirements.

11. The regulation also requires that the LCA “supports and properly corresponds to” the H-1B petition and comments and responses strongly indicate that DHS will be exercising its expanded codified authority in this area. To a commenter inquiry whether USCIS would now assert that a position should be wage level II or wage level III when the petitioner has followed DOL guidance in determining a wage level I position, or if USCIS would now assert the SOC code is not correct on the LCA after the petitioner has reviewed the SOC codes and selected the one that they feel is best aligned with the position, USCIS gave an example that “if the petitioner and other supporting documentation indicates that the beneficiary’s position and associated job duties requires a wage level 2 or wage level 3 per DOL guidance, but the LCA is certified for a wage level 1 position, that may call into question whether the petition is supported by an LCA that properly corresponds to the petition or whether the offered position was accurately described in the petition. Similarly, USCIS may find a material discrepancy in cases where the SOC code on the LCA is inconsistent with the job duties as described in the H-1B petition” (227).
12. The rule codifies USCIS authority to conduct site inspections and impose penalties for failure to comply with unannounced worksite visits, enter businesses and homes without a warrant to question, obtain information and use it against the applicant. Comments were raised concerning the authority or desirability of FDNS to enter employees’ homes and third-party companies. DHS said that it declined to restrict USCIS officers from going to homes as to do otherwise would create a loophole wherein any petitioner may exempt themselves from their evidentiary burden simply by locating workers at the residences (265-266). FDNS can also inspect third-party locations, DHS saying that there is no requirement that a petitioner place a beneficiary at a third party location – but if a petitioner chooses to petition for a beneficiary that is placed at a third party location, it remains the petitioner’s burden to demonstrate eligibility, meet all requirements of the H-1B petition, and employ the H-1B worker consistent with the terms of the approved petition. (268). It cited the same loophole strategy for not exempting beneficiaries at third-party locations.

The regulation was finalized in the last weeks of the Biden Administration, and it is difficult to predict whether it will stand or be rescinded by the incoming Trump team. It cannot be undone by Executive Order but could be under the Congressional Review Act which allows a joint resolution of Congress by majority vote to nullify regulations finalized in the last 60 days of the legislative session if such is done in the first 60 legislative days of the new Congress. On the plus side for not canceling it are that the changes are mostly conservative and that the President-elect in the recent war of words in the Republican camp over the H-1B program supported Elon Musk and Vivek Ramaswamy, his nominees for heading up The Department of Government Efficiency (DOGE), both supporters of the H-1B program, saying in a phone interview that “I have many H-1B visas on my properties. I’ve been a believer in H-1B. I have used it many times. It’s a great program.” https://www.cnn.com/2024/12/28/politics/trump-musk-foreign-worker-visas-backlash/index.html On the negative side are that it is a Biden regulation and Mr. Trump is loath to give credit to him for anything, and it does not go nearly as far as his proposals in his previous term to change the H-1B program.

So we will see.

(For further information on the regulation when first proposed, see the author’s articles Proposed Changes to the Evidence Required for Establishment of H-1B “Specialty Occupation” Continued Reliance on OOH Expanded Authority of DHS To Compare LCA Position With H-1B Petition Etc Mean Tightened Adjudication Standards https://discuss.ilw.com/articles/articles/498435-article-proposed-changes-to-the-evidence-required-for-establishment-of-h1b-specialty-occupation-continued-reliance-on-ooh-expanded-authority-of-dhs-to-compare-lca-position-with-h1b-petition-etc-mean-tightened-adjudication-standards-by-alan-lee-esq and Clear Beneficial Changes to the H-1B Program in the Proposal https://discuss.ilw.com/articles/articles/498821-article-clear-beneficial-changes-to-the-h-1b-program-in-the-proposal-by-alan-lee-esq

As published in Lexisnexis.com on December 9, 2024

As published in the Immigration Daily on December 17, 2024

This topic came up in the New York AILA/District Director Meeting of November 19, 2024. New York City and a number of other USCIS field offices in the past and even now have generally provided interpreters for adjustment of status and naturalization interviews. New York was unique in rejecting interpreters brought in by applicants in the past because of perceived fraud in interpreters not correctly translating the words so as to favor the applicant. However, there has been a big move towards having applicants once again bring in their interpreters, and in the meeting, the New York office reiterated that applicants are required to bring their own – that while the New York District may be able to provide interpreters, Language Services is a shared resource throughout the New York District; and that they are therefore not able to guarantee interpreters; and the District pointed out that the appointment notice says to bring your own interpreter.

Despite the above, anecdotal evidence informs us that the District continues to provide interpreters in most cases upon request. In an AILA New York lawyers’ group chat in October 2024, one commenter observed that each field office is its own little kingdom; that if the language is one that is common, interpreters are provided, that if a less in demand language is involved, then you may run into problems if you did not bring one. The commenter also said to make sure to let them know that an interpreter is present, or is requested, when you check in, and be prepared to be told, “We will provide one!” if you have brought your own, and “You need to provide one!” if you have not brought your own. Our law firm asked the question at the New York District Office last week at both the Manhattan and Brooklyn field offices and we were informed that telephonic translators are still offered; that most applicants request one when they come in for their interviews; that you can bring your own interpreter; and it is recommended that you bring your own translator if you have an uncommon language such as Urdu.

What if you cannot or do not want to go to the expense and trouble of bringing an interpreter who may not be used? The recommendation of the District was to request an interpreter through the Contact Center. What are the consequences of not bringing your own interpreter when the New York District office or any other office that usually provides interpreters will not or cannot provide the interpreter? There appear to be a number of options available to an officer. 1.)  Going forward with the interview if it appears that the applicant can understand some English and the officer believes that the nature of the interview can allow the case to proceed without fluency on the part of the applicant.  2.) Going forward with the interview where the officer is fluent in the applicant’s language – such as provided for in the USCIS Policy Manual Chapter 5 – Interview Guidelines | USCIS.  3.) Explaining to the applicant that no interpreters are currently available so that the applicant would not be able to be seen on time and the officer would call the applicant’s name again when the telephonic interpreter (or one from a different floor of the district office) becomes available.4.)Turning away the applicant at the interview and saying that the applicant would again be scheduled, leaving the applicant in limbo as to when he or she will receive a rescheduled appointment notice unless the officer arranges a new date before the applicant leaves. 5.) Denying the application on the basis that the notice of interview clearly indicated that the applicant needed to bring an interpreter if one was necessary. However, that is an unlikely scenario given the uncertainty surrounding the availability of Service interpreters coupled with past practice of the USCIS office, and that lacking an interpreter does not go to the merits of the application such as a missing criminal disposition. We do note the  USCIS September 11, 2023, affirmative asylum interview notice that as of September 13, 2023, applicants must bring interpreters when needed, and that “If you need an interpreter and do not bring one, or if your interpreter is not fluent in English and a language you speak, and you do not establish good cause, we may consider this a failure to appear for your interview and we may dismiss your asylum application or refer your asylum application to an immigration judge.” Affirmative Asylum Applicants Must Provide Interpreters Starting Sept. 13 | USCIS. We do not, however, believe the stricture applicable to other USCIS interviews as no such warning appears in the USCIS Policy Manual.

So it would appear that there is a risk in not bringing an interpreter to USCIS offices that usually provide one, and that the degree of inconvenience or punishment could largely be within the discretion of the District office. If the interview involves an uncommon language, the risk is greater that the field office will not be able to timely obtain the services of its own interpreter, and so it is highly recommended that, at least in those cases if not others, applicants should bring their own interpreters or make arrangements with the USCIS Contact Center prior to interview.

As published in Lexisnexis.com on October 16, 2024

As Published in the Immigration Daily on October 28, 2024

Part 1 of this two-part article discussed the situation in which the ability to keep a child’s “frozen” age [1]. under the Child Status Protection Act (CSPA) can be impacted by the parent’s failure to “seek to acquire status” during the one year period of visa availability following approval of the petition or even a shorter period of time within the one year if there is interruption of visa availability. This can have dire consequences in disallowing a previously eligible child to immigrate with the parent, forcing the parent to enter the US first as a permanent resident and then petitioning for the aged out child under the F-2B category for unmarried sons or daughters of permanent residents – a process taking approximately 8 years (for the month of November 2024, visa availability under the final action date chart of the visa bulletin is only open for those who filed F-2B petitions prior to 5/1/16 for children born in all countries except Mexico and the Philippines (which have longer wait times).

For the child to retain the original “frozen” date where the parent did not “seek to acquire status” within the time of visa availability including periods of less than a year, USCIS requires a showing of extraordinary circumstances as outlined in part 1 of this article. The Policy Manual Chapter 7 – Child Status Protection Act | USCIS explains that USCIS does not consider commonplace circumstances such as financial difficulty, minor medical conditions, and circumstances within  the applicant’s control (such as when to seek counsel or begin preparing the application package) to be extraordinary.

If attempting to explain extraordinary circumstances through a lawyer’s inaction –that there was ineffective assistance of counsel, USCIS requires the applicant to submit an affidavit explaining in detail the agreement that was entered into with the lawyer regarding the actions to be taken and what information, if any, the lawyer provided to the applicant regarding such actions; demonstrate that the applicant made a good-faith effort to inform the lawyer of the allegations brought against him or her and if the lawyer has been given an opportunity to respond; and that the applicant indicate whether a complaint was filed with the appropriate disciplinary authorities concerning any violations of the lawyer’s legal or ethical responsibilities, or explain why the complaint was not filed.

Assuming that extraordinary circumstances are established, the question becomes what period of time is covered by the circumstances, and whether such would be enough to allow the child’s CSPA age to fall under 21. USCIS gives three examples in the Policy Manual:

1. There is a break in visa availability of three months and the visa becomes available again seven months later at which time the application to seek to acquire is made immediately. Here the Policy Manual says that the applicant must include an explanation and evidence demonstrating extraordinary circumstance for not applying for the adjustment of status during the first visa availability period, and where USCIS determines as a matter of discretion that extraordinary circumstances are established, it calculates the child’s CSPA age using the date the visa first became available during the three months.
2. There is a break in visa availability of three months, and becomes available again seven months later, but in this example, the applicant does not seek to acquire when visa availability comes about, and the period of availability stretches from that point for over a year before the applicant acts. The Policy Manual states that the applicant must demonstrate extraordinary circumstances for not seeking to acquire during the first time that the immigrant visa was available in the three months and the second time that the visa was available for an entire year, with USCIS then calculating the applicant’s CSPA age when the visa first became available.
3. The third example almost mirrors the second (an extra break in visa availability added either intentionally or not) except that the applicant demonstrates extraordinary circumstances for not seeking to acquire during the second period of time of over a year when the visa was available, but does not provide any evidence demonstrating extraordinary circumstances for failing to seek to acquire when the visa first became available during the three months. The Policy Manual states that USCIS would excuse the second period of time to acquire requirement in its discretion and assign the child a CSPA age using the age on the second date that the visa became available since there was no demonstration of extraordinary circumstances for not applying for adjustment of status within the three months.

What can parents do to protect their child for whom a refrozen date may prove catastrophic for the child’s immigration?

If they are not familiar with the monthly visa bulletin of the State Department, they should become adept at reading and following it and not merely rely upon the advice of others. Reading the visa bulletin now requires perusing four charts instead of the two charts of the not so distant past. If in the US and applying for adjustment of status, parents must also be aware of the monthly adjustment charts of USCIS which determine whether the agency is using the “Final Action Dates” or “Dates for Filing” chart – because if it is using the “Dates for Filing” chart, and the immigrant visa is available under the chart for that month, that is the date upon which the seek to acquire duty begins for persons planning to adjust status in the US. It should also be noted that employment-based cases are most prone to USCIS using either chart at different times during the government fiscal year. Family-based cases in recent years have mainly seen use of the “Dates for Filing” chart.

Is there a strategy that can possibly take advantage of the current difference in view of immigrant visa availability between USCIS and the Department of State? This may be possible in limited circumstances.

Prior to the USCIS change in February 2023, both agencies were in lockstep that a visa was available only when the priority date was reached on the “Final Action Dates” chart. Now the State Department still considers an immigrant visa to only be available under that chart (9 FAM 502.1-1 (D) (a) (3) https://fam.state.gov/fam/09FAM/09FAM050201.html despite continual calls by many for the Department to adopt the USCIS interpretation since that would benefit more children to have their priority dates frozen on an earlier date. The dichotomy between USCIS and the State Department views can possibly be explored if the difference in time of the “Dates for Filing” and “Final Action Dates” charts is narrow enough so that the child’s CSPA age remains  under 21 when the “Final Action Dates” chart opens to the priority date. The family could consular process their immigrant visas instead of going through the adjustment of status process in the States. At the time of interview, the consulate or embassy would only look at the “Final Action Dates” chart to determine eligibility of the child on the issue of “sought to acquire”.

So, for example, the child is in the US with a CSPA age of 20 when age is frozen under the “Dates for Filing” chart, but the family does nothing for close to a year when the immigrant visa is available. The “Final Action Dates” chart opens to the priority date the month that the child turns 21. If the family becomes aware of or is already cognizant of CSPA rules, the family then has a choice of a rushed I-485 filing or taking advantage of the fact that for consular processing, the priority date just became current for the first time and that they have one whole year to take action to “seek to acquire” immigrant status. So this family may decide to switch from I-485 to consular processing, have their approved petition sent to the National Visa Center (NVC), and take one of the steps required to satisfy the “sought to acquire” requirement within one year of the priority date becoming current.

Although this is a option that may have risk, especially associated with the time that it may take an approved petition designated for adjustment of status to be sent to the NVC and with the possibility of the “Final Action Dates” chart backlogging and its attendant consequences, this may be a route that parent and child are willing to look at.

It should be noted that, barring an explanation of extraordinary circumstances, this may be the only route for the family in the above situation that fails to file the rushed I-485 and allows one year to expire under the “Dates for Filing” chart.

Summary:

With the USCIS policy alert and Policy Manual now emphasizing the need to prove extraordinary circumstances where the priority date became current and no action was taken during any length of time that the date was open, parents should be aware of how the opening and backlogging of visa categories,  and use of the different visa and adjustment charts of the Department of State and USCIS may adversely affect the ability of the child to immigrate with them and perhaps even become proactive on their child’s behalf.

[1] Age is frozen for a child under the CSPA on the date that an immigrant visa petition is filed in the immediate relative category, or when an I-589 asylum application is filed by the parent, or on the date of the parent’s I-590 refugee interview with a USCIS officer, or when a backlogged immigrant visa petition for a parent is approved and the immigrant visa becomes subsequently available.

As published in Lexisnexis.com on October 16, 2024

As published in the Immigration Daily on October 25, 2024

There are two stages to a child turning 21 being entitled to immigrate with the parents under the Child Status Protection Act (CSPA) – being below the age of 21 at the time of final immigration taking into account the addition of time credited while a petition is pending in visa categories having backlogs, and seeking to acquire immigrant status within one year of immigrant visa availability.

In USCIS’s policy alert of September 25, 2024, “Age Calculation under the Child Status Protection Act”, PA-2024-23, 20240925-CSPAAgeCalculation.pdf (uscis.gov) the agency addressed the situation in which a child may have made it age-wise to have his or her age “frozen” before 21 under the CSPA, but possibly losing the “frozen” date where the visa category temporarily becomes unavailable before the child seeks to acquire, and then becomes available again during the one year of visa availability at which time the child takes proper steps to seek to acquire status before the year is out.

USCIS had previously ruled that where an applicant had not sought to acquire status within one full year of immigrant visa availability, the applicant would not be entitled to the first frozen date and only allowed the age on the date on which he or she sought to acquire unless there was a showing of extraordinary circumstances.

The policy alert cites the USCIS Policy Manual Volume 7, Chapter 7, Child Status Protection Act, Chapter 7 – Child Status Protection Act | USCIS which gives in greater detail the significance of seeking to acquire where age is at issue. An example that we can quite readily think of is a child whose parent is immigrating through the EB-3 category for employment-based professionals, and whose child is already 22 years of age, but is able to immigrate with the parent because his or her CSPA age is only 20 years 8 months at the time of visa availability because of the time that it took USCIS to adjudicate the petition. In this case, the parent should take further steps to ensure that the “seek to acquire” requirement is met.

How does one “seek to acquire”? The Policy Manual outlines the different ways:

• Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);
• Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the DOS;
• Paying the immigrant visa fee to DOS;
• Paying the Affidavit of Support Under Section 213A of the INA (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);or
• Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicant’s behalf.

In our example, because of personal or business reasons or slowness of the legal professional handling the case, the parent does not take the further step of seeking to acquire status within 4 months and the EB-3 category unfortunately becomes unavailable and does not become available again until six months later when the child’s CSPA age is 21 and 6 months (if refrozen).

Is the child still able to immigrate? The law allows an applicant to seek to acquire within one full year of visa availability and here the visa was only available for four months. So the child is still allowed time to seek to acquire. But the question is whether the child is still entitled to the first frozen date or whether that date is no longer valid and he or she can only have age frozen again with the date when the parent takes the necessary step to seek to acquire status.

In the policy alert and in the Policy Manual, the applicant must prove extraordinary circumstances to be able to retain the first frozen date. That means being able to prove the reason for which he or she did not apply during the first period of availability, even though it was less than one year.

In looking at the factors of extraordinary circumstances, the Policy Manual lists such factors as showing that:

• The circumstances were not created by the applicant’s action or inaction;
• The circumstances directly affected the applicant’s failure to seek to acquire within the 1-year period; and
• The delay was reasonable under the circumstances.

In giving examples, the manual cites the following:

• Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period;
• Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter;
• Death or serious illness or incapacity of the applicant’s attorney or legal representative or a member of the applicant’s immediate family; and
• Ineffective assistance of counsel, when certain requirements are met.

The Policy Manual did not limit the reasons to the above.

Thus it appears that a child’s age once frozen under the CSPA is not necessarily permanently frozen, and can become unfrozen and perhaps refrozen with a later date even if the child seeks to acquire within the one-year limit, which may certainly be undesirable to the family if the child’s CSPA age would then exceed 21.

(We will next discuss specific examples as brought forth in the Policy Manual and give suggestions on how to avoid being impacted by age being refrozen in Part 2).

With the first visa bulletin for Fiscal Year (FY) 2025, there was not much activity in family-based cases, but much for employment-based ones. For both family-based charts (final action dates and dates for filing), the dates were the same as in the September 2024 visa bulletin for Rest of World (ROW) cases. The final action dates chart changes were confined to Mexico and India; and the dates for filing chart changes were specifically for Mexico and the Philippines.

For employment-based cases, the final action dates chart showed EB-1 (ROW) remaining current with China moving up one week to 11/8/22 and India remaining at 2/1/22; EB-2 ROW staying at 3/15/23 with China remaining at 3/22/20 and India 7/15/12; EB-3 ROW advancing almost 2 years to 11/15/22 with China backlogging five months to 4/1/20 and India advancing one week to 11/1/12; EB-3W ROW remaining at 12/1/20 with China remaining at 1/1/17 and India moving up one week to 11/1/12; EB-4 worldwide remaining at 1/1/21 with non-minister certain religious workers becoming unavailable due to lack of extending legislation; EB-5 unreserved remained current with China advancing eight months to 7/15/16 and India one year one month to 1/1/22, and all the reserved EB-5 categories remained current.

For the EB dates for filing chart, EB-1 ROW remained current with China staying at 1/1/23 and India advancing two months one week to 4/15/22; EB-2 ROW advanced four months one week to 8/1/23 with China advancing four months to 10/1/20 and India six months one week to 1/1/13; EB-3 ROW moved up one month to 3/1/23 with China backlogging eight months two weeks to 11/15/20 and India advancing eight months one week to 6/8/13; EB-3W ROW advanced five months two weeks to 5/22/21 with China moving up one year to 1/1/18 and India six months to 6/1/13; EB-4 including certain religious workers worldwide remained at 2/1/21; EB-5 ROW remained current with China moving backwards three months to 10/1/16, India staying at 4/1/22, and all the reserved EB-5 categories remained current.

For adjustment of status, USCIS indicated that it would use the dates for filing chart during the month for both family-based and employment-based cases. This is the first time that USCIS has used the B chart for EB cases since February 2024.

Looking forward, we would all hope that the Department of State continues to use all efforts to make use of all visa numbers as it has been doing during this fiscal year and as evidenced by its closing of numerous employment-based categories and barring further issuance of immigrant visas in them for the balance of the FY 2024 fiscal year.

As published in the Immigration Daily on August 13, 2024

What is a second Donald Trump presidency shaping up to look like? Will Trump stop and smell the roses, happy that he is back in the White House and ease back into the routine of the Oval Office? One would hope for a mellower and happier Trump – that will unfortunately not be happening. He already has a playbook for action in the first 180 days in office to bring the nation back to the end of first Trump presidency. Although Mr. Trump denies knowing anything about the Heritage Foundation’s Project 2025 900 odd page document, “Mandate for Leadership”, https://static.project2025.org/2025_MandateForLeadership_FULL.pdf,  those who worked on the document include a number of former Trump officials and aides. A pattern with former president Trump is his transactional character, saying whatever he believes in the moment will help him including currently backing off on the abortion issue, making comments favoring electric vehicles now that Elon Musk is supporting his campaign financially (the Wall Street Journal reported the contribution size as $45 million per month, which Mr. Must later denied) when Trump previously said that Joe Biden’s encouraging the transition to electric vehicles would result in an economic “bloodbath” in the US economy, and now promising not to cut a penny from Social Security or Medicare after saying in March 2024 that there was a lot that could be done with entitlements in terms of cutting. So it is a long stretch to believe that he knows nothing of the report. On credibility, the Washington Post counted 30,573 false or misleading statements during Mr. Trump’s first tour of the White House.

On immigration, the main topic of this article, Mr. Trump and his advisors have promised a massive deportation effort aiming to remove as many as 20 million people from the US through forced expulsions and deportation camps. He has said that under his leadership, they would use all necessary state, local, federal, and military resources to carry out the largest domestic deportation operation in American history, including deputizing local police officers, and not ruling out the possibility of building new detention camps for processing deportations.

The enmity of Mr. Trump to immigrants has been astounding, saying that they poison the blood of the nation or that they come from shithole African countries or characterizing Mexican border crossers as rapists and criminals.

Specific proposals of the Heritage Foundation document include:

• Ending the ability of US citizens to bring most classes of family over that they are able to presently sponsor.
• Ending the Diversity Visa program under which persons without sponsors or US family members are able to have a shot at permanent residence through a lottery program, bringing diverse people from many countries into the US.
• Revamping the H-1B program to bring in only the “best and brightest” at the highest wages while simultaneously ensuring the US workers are not being disadvantaged by the program.
• Capping and phasing out the H-2A Visa program for agricultural seasonal workers although also presenting an opposition argument.
• Consider phasing out the H-2B visa program for nonagricultural seasonal workers, and ensuring that the DHS Secretary will not use his or her discretion to increase the number of such visas above the statutorily set limits although also presenting an opposition argument.
• Move USCIS to strive to increase opportunities for premium processing to expedite processing times since it provides an opportunity for a significant influx of money into the agency which is not currently available.
• Bring back every rule related to immigration that was issued during the Trump administration and canceled during the Biden administration.
• Examine and consider withdrawing or overturning every immigration decision rendered by the Attorney General during the Biden administration.
• Target lawyers that the government labels as advancing completely meritless arguments before the immigration courts.
• Instruct the State Department to allow national security concerns to dominate over diplomatic concerns in issuing visas under the Diversity Visa program, F student visa program, and J exchange visitor visa program – and to eliminate or significantly reduce the number of visas issued to foreign students from “enemy nations”.
• Refocus Homeland Security Investigations (HSI) back on immigration offenses.
• End ICE’s use of termination and administrative closure of cases in the immigration courts.
• Instruct USCIS that the focus is not on giving benefits, but to return focus on vetting, examining the base eligibility of applicants, and fraud detection.
• Take regulatory action to limit the classes of aliens eligible for employment authorization.
• Prohibit the use of parole except in matters that are certified by the DHS Secretary for humanitarian or significant public benefit reasons – with the prohibition on the use of parole in any categorical circumstance.
• Restrict prosecutorial discretion.
• Withdraw and reissue a new regulation on criteria to determine which applicants for immigration are considered to pass the public charge requirement.
• Repeal TPS (Temporary Protected Status) designations for persons from countries in distress.
• Move Congress to permanently authorize E-Verify and make it mandatory although it is far from a perfect program.

These are some of the main changes in the field of immigration to be pursued in a second Trump presidency. The rapidity of the changes promises to be breathtaking. A new Trump administration would try to overwhelm opposition by the sheer number of immediate actions in the field. Of note is that the document would supercharge the power of the presidency in immigration and other fields by calling for the replacement of much of the federal work force with political appointees, who could be hired and fired at will.

Aside from the venom, immigrants – even undocumented immigrants – are beneficial to the country economically, culturally, and civilly. A number of studies over the years including one just conducted by the nonpartisan Congressional Budget Office in July 2024, “Effects of the Immigration Surge on The Federal Budget and the Economy”, concluded that a surge of immigrants already here and expected to come between 2021-2026 would lower the federal deficit by nearly $1 trillion over the next decade; that as most of the population would be of working age, they would draw less in terms of federal, state and local benefits although the CBO report did not take into account state and local costs; that they would pay $788 billion in taxes and generate $387 billion of extra federal revenue through their effects on the overall economy. This follows a number of articles over the years extolling the beneficial effects of increased immigration on the country’s economy. Culturally, immigrants have always enriched the melting pot of America in bringing their diverse languages, ways of living, food, religions, and points of view. And despite Mr. Trump’s eagerness to highlight every instance of immigrant crime, crime statistics show that immigrants commit crimes in far less numbers and percentages those of the general American populace. A study published by researchers from the University of Wisconsin–Madison in 2020, Undocumented immigrants far less likely to commit crimes in U.S. than citizens (wisc.edu) found that, compared to undocumented immigrants, U.S. citizens were:

• • Twice as likely to be arrested for violent felonies.
  • Two-and-a-half times more likely to be arrested for felony drug crimes.
  • Over four times more likely to be arrested for felony property crimes².

Another study, titled “Comparing Crime Rates Between Undocumented Immigrants, Legal Immigrants, and U.S. Citizens”, also highlighted that U.S.-born citizens are more likely to be arrested for violent crimes, drug crimes, and property crimes relative to undocumented immigrants.

The US requires a President who is able to look at facts and not distort them for his or her personal ambition and political aims. A steady hand promoting the interests of the country is a necessity over a President frustrated in the fine details of governing and making wild stabs of decision-making based upon whatever is in his or her mind at the present moment. Considered decision-making based upon what is best for the country and not promoting a political agenda right or left is the mark of what will be a great President. From promised mass deportation efforts to the Heritage Foundation’s planned 180 days sprint to enact restrictive rules in immigration that have no benefit to the country, there is good cause to doubt that a second term for Donald Trump will lift the country.

As published in the Immigration Daily on July y 24, 2024

Relating to the Executive Order of June 17, 2024, affecting DACA holders and other undocumented university and college graduates and the June 18, 2024, fact sheet put out by the White House, FACT SHEET: President Biden Announces New Actions to Keep Families Together | The White House that the announcement would allow individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited US institution of higher education in the United States, and who have received an offer of employment from a US employer in the field related to their degree, to more quickly receive work visas, the latest update to the Department of State’s “Easing the Nonimmigrant Visa Process for U.S. College Graduates (state.gov)” on July 15, 2024, sees the Department still seemingly directing its energies in awaiting only H-1B visa applications as, in answer to the question “How long are current interview appointment wait times for employment based nonimmigrant visas and overseas posts?”,  it said that interview wait times for H-1B visas are minimal at most of its overseas posts.

It further stated that updated waiver guidance for consular officers was issued on July 15, 2024. §212 (d) (3) waivers of inadmissibility are necessary in most cases for these classes of applicants to obtain visas at the consulates due to the 3 or 10 year bars attendant to remaining unlawfully in the US for six months or one year respectively after the age of 18. Although not going into detail on waiver procedure in the update itself, a look at the Foreign Affairs Manual changes (new parts in bold) https://fam.state.gov/fam/09FAM/09FAM030504.html shows the new guidance for consular officers:

9 FAM 305.4-3(C)  (U) Factors to Consider When Recommending a Waiver

(CT:VISA-2025;   07-15-2024)

a. (U) You may, in your discretion, recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose case meets the criteria of 9 FAM 305.4-3(B) above and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having a qualifying family relationship, or the passage of a specific amount of time, or any other special statutory threshold requirement.  The law does not require that such action be limited to humanitarian or other exceptional cases.  While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose of travel.

b. Unavailable

c. (U) You should consider the following factors, among others, when deciding whether to recommend a waiver:

    (1)  (U) The recency and seriousness of the activity or condition causing the applicant’s ineligibility;

    (2)  (U) The reasons for the proposed travel to the United States; and

    (3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.  NOTE: In general, you should consider cases where the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field related to the education that the applicant attained in the United States, to have a positive effect on U.S. public interests;

9 FAM 305.4-3(E)(2)  (U) When to Submit Applications to the Department for Review

(CT:VISA-2025;   07-15-2024)

a. (U) If an applicant or interested party requests a waiver after you decline to recommend one, you should refer the request to the Department for review if the case meets one of the criteria below.  Supervisor concurrence is required if you find that the applicant’s waiver request does not meet one of the listed criteria:

    (1)  (U) Foreign Relations:  Refusal of the NIV application would become a bilateral irritant or be raised by a foreign government with a high-ranking U.S. government official;

    (2) (U) National Security:  Admission to the United States would advance a U.S. national security interest;

    (3) (U) Law Enforcement:  Admission to the United States would advance an important U.S. law enforcement objective;

    (4) (U) Significant Public Interest:  Admission to the United States would advance a significant U.S. public interest including the positive effect of the planned travel on U.S. public interests described above in 9 FAM 305.4-3(C)(c)(3)

9 FAM 305.4-3(F)  (U) Waiver Expedite Requests

(U) As described in 9 FAM 305.4-3(C)(c)(3) with regard to recommending a waiver, there is a clear and significant U.S. public interest in asking CBP/ARO to expedite a waiver request if the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field that requires the education that the applicant attained in the United States. 

 The groundwork now appears laid for consular interviews although with no guarantee that the applicant will receive the visa. Inadmissibility grounds or doubts concerning the underlying petition may still derail the visa quest.

The Department of State appears prepared to entertain and expeditiously work with DHS on H-1B visa applications and inadmissibility waivers from DACA holders and other undocumented college or university graduates, but the Department update and FAM changes do not speak to any contemplated new program or other visa categories, a concern expressed in our last article, Article: Before Federal Register Notice Appears, Questions Relating to the Executive Order of June 17, 2024, Affecting DACA Holders and Other Undocumented University and College Graduates by Alan Lee, Esq – ILW.COM Discussion Board. The emphasis on H-1B visa applications may very well be centered on the dual intent character of the visa in that applicants do not have to prove nonimmigrant intent or a residence in their home countries during visa interviews. Because of the numbers limitation on cap H-1B visas (only 85,000 approximately per year) and the current severe competition making selection a form of “lottery,” many are eagerly awaiting the anticipated Federal Register notice to see whether the Executive Order’s scope will cover more than the H-1B program.

As published in the Immigration Daily on June 28, 2024

The June 18, 2024, fact sheet put out by the White House, FACT SHEET: President Biden Announces New Actions to Keep Families Together | The White House said that the announcement would allow individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited US institution of higher education in the United States, and who have received an offer of employment from a US employer in the field related to their degree, to more quickly receive work visas; and that recognizing that it is in our national interest to ensure that individuals who are educated in the US are able to use their skills and education to benefit our country, the Administration is taking action to facilitate the employment visa process for those who graduated from college and have a high skilled job offer, including DACA recipients and other Dreamers.

To facilitate this, the DHS Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families | Homeland Security said that DHS will join the Department of State in an effort to more efficiently facilitate certain employment-based nonimmigrant visas for eligible individuals, including Deferred Action for Childhood Arrivals (DACA) recipients and undocumented noncitizens, who have graduated from an accredited US institution of higher education – by clarifying and enhancing the existing process, the Department of State’s policy will give US employers increased confidence that they can hire the talent they need, and that they will be able to quickly get to work – and that DHS will implement the Department of State’s policy update.

Does the Administration plan to only utilize existing pathways of nonimmigrant visas? Or is there planning for another type of program like entrepreneur parole that was declared by Executive Order in President Obama’s Administration? If not, the more common visas would appear to be H-1B specialized occupation workers, O-1 extraordinary workers, and TN professional visas for nationals of Canada or Mexico. If confined to the existing pathways, it would appear that the numbers to be benefited will be not be large except for TN as many of the undocumented, DACA holders and other Dreamers are from Mexico. Most H-1B visas are capped at 85,000 per year, and with the number of applicants selected for FY 2025 registration thus far only 25.6% (120,603 of 470,342 registration candidates) https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process, the addition of undocumented graduates without corresponding increase in H-1B numbers would only drive the percentage down. H-1B visas without numerical limit are available for cap-exempt employers, but those are confined to hirings by institutions of higher education, nonprofit organizations affiliated with institutions of higher education, nonprofit research organizations, and government research institutes.

The H-1B of all existing pathways is the ideal vehicle except for the limited numbers of available visas. It has the advantage over other visas except for L-1 intracompany transferee visas (generally inapplicable to the situation because of the requirement of prior overseas one year employment as manager, executive, or specialized knowledge worker) of being a dual intent visa meaning that applicants can still receive visas although they have no intent to return to their home countries. This is not the case with other visas which either require nonimmigrant intent or exist in a gray area. TN requires nonimmigrant intent.

F-1 optional practical training (OPT) and the possible follow-up STEM OPT do not appear to be work visa options according to the stated requirement that applicants have a high skilled job offer from an employer as OPT is generally seen as training in which the applicant is gaining skills rather than using them professionally. In addition, it is a visa requiring nonimmigrant intent.

It appears at this stage that the Department of State is mainly contemplating traditional visas that are precipitated by USCIS approval on form I-129, which likely means H-1B and O-1 petitions generally. Its communiqué, Easing the Nonimmigrant Visa Process for U.S. College Graduates (state.gov) in answer to the question “How Can an Individual Apply for Petition-based Nonimmigrant Work Visa?”  said “Before an applicant can apply for an H-1B or other temporary worker visa, US Citizenship and Immigration Services (USCIS) must generally first approve a petition for a nonimmigrant worker, form I-129… Individuals may apply for a nonimmigrant visa after USCIS has approved the petition…”

Assuming that work visa eligibility is established, coordination between DHS and the Department of State in the form of §212 (d) (3) expedited waivers of inadmissibility due to the 3 or 10 year bars attendant to remaining unlawfully in the US for six months or one year respectively after the age of 18 could solve the problem of return to the US on a temporary basis to work for undocumented graduates, but is there a contemplated solution for situations in which consular officers may have objections to the issuance of visas on other grounds? Would the failed applicants be allowed to return in some way?

For persons applying under TN, the Department of State would not be involved with waivers, and such would be a procedure handled solely by Customs and Border Protection (CBP) through its Admissibility Review Office (ARO).

While we highly applaud the Administration’s initiative, we hope that it has considered or will consider the above while publishing its Federal Register notice in the near term.