- Posts by Anna L. Scully
PartnerAnna represents businesses, families, and individuals with the process of obtaining legal immigration status for key employees and loved ones. She interacts directly with the client at every stage of the process, from finding the ...
Foreign nationals often plan international travel during the holidays. As a result, it is one of the busiest times of year for visa processing at U.S. Consulates and Embassies. Here are a few helpful considerations to make foreign national holiday travel a little less stressful for both employment-based visa sponsors and beneficiaries.
Do I have a valid visa?
The time to check visa validity is before travel. Discovering an expired visa upon attempting return to the U.S. can cause both unnecessary stress for the foreign national and negative impacts to employer operations. The ...
USCIS recently implemented a new temporary rule that reinstates the opportunity for a 540-day Automatic Employment Authorization Document (EAD) extension for certain foreign nationals seeking to renew their EAD. USCIS had implemented a similar automatic EAD extension in May 2022 but reverted back to a 180-day automatic extension period on October 26, 2023. The new rule took effect on April 8, 2024.
USCIS announced the temporary rule to prevent gaps in employment authorization and documentation during the renewal process. The increased extension is welcome news for many foreign ...
Cost increases due to inflation have become a norm over the last two years, and immigration fees are no exception. USCIS announced that effective April 1, 2024, fees for certain immigration benefits will be adjusted for the first time since 2016. The agency is 96% funded through filing fees, and USCIS anticipates the increases will assist with operational costs to avoid the accumulation of future backlogs in case processing.
Of particular note is the increase in filing fees for nonimmigrant work visa petitions. I-129 filing fees for a typical H-1B petition will increase from $460.00 ...
Employers wishing to sponsor a candidate for an H-1B visa in Fiscal Year (FY) 2025 are approaching an important time of year. United States Citizenship and Immigration Services (USCIS) recently announced the H-1B cap lottery registration period will open on March 6, 2024, at noon Eastern Standard Time and close on March 22, 2024, at noon Eastern Standard Time. USCIS also announced several changes that will implemented in this year’s registration process.
H-1B cap lottery registration was introduced in FY 2021 and is an annual electronic process through which USCIS receives ...
United States Citizenship and Immigration Services (USCIS) recently announced all available visas in the Fiscal Year 2024 H-1B lottery program have been utilized. Each year, 65,000 H-1B visas are available for positions requiring at least a U.S. Bachelor’s degree. An additional 20,000 visas are available to foreign nationals who have earned at least a U.S. Master’s degree and are sponsored for an H-1B eligible position. Registrants were selected at random for an opportunity to fill one of the H-1B cap positions. The H-1B program is regularly used by U.S. employers to ...
Foreign nationals often coordinate travel abroad to coincide with the holidays. December can be one of the busiest times of year for visa processing at U.S. Consulates and Embassies abroad. Here are a few helpful considerations to make foreign national holiday travel a little less stressful.
Do I have a valid passport?
While seemingly obvious, an immediately expiring passport can cause a multitude of issues for foreign national travelers. Initially, U.S. Consulates and Embassies may require a passport to have a specific amount of validity in order to issue a visa. Additionally ...
The Department of State (DOS) appears primed to renew the practice of domestic visa renewal for at least some foreign nationals in 2024. DOS sent a Federal Register notice titled Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens to the White House for review last month. While the full scope of the program will not be known until publication, the notice is expected to outline criteria for participation in a pilot program that would allow some H-1B workers to renew their visas without exiting the United States. Employers can ...
United States Citizenship and Immigration Services (USCIS) has instituted a revised Form I-9 that is mandatory for all employers, starting November 1, 2023.
USCIS announced the new version in August, in part to aid with the implementation of the new alternative I-9 remote document verification procedures. More information on the new remote document verification procedures is available here. Moving forward, use of the prior I-9 version, dated October 21, 2019, may subject an employer to penalties. Employers that utilize an electronic I-9 system should contact their provider to ...
In an effort to address the ongoing Employment Authorization Document (more commonly known as an “EAD”) processing backlog, USCIS recently announced it would lengthen the maximum validity period for certain EAD categories to five years. The change is welcome news to many employers and foreign nationals who may have experienced gaps in work authorization due to processing delays over the last several years.
One of the EAD categories affected by the change is pending Adjustment of Status Application beneficiaries. Adjustment of Status is the final step in the Green Card process ...
On May 4, 2022, the Department of Homeland Security (“DHS”) issued a rule temporarily increasing the Employment Authorization Document (“EAD”) automatic extension period for certain renewal applicants. Under the temporary rule, the automatic extension was increased from 180 days to up to 540 days to address historically long processing times.
USCIS recently announced plans to revert back to 180-day automatic extensions, starting October 26, 2023. The following criteria must be satisfied to qualify for the automatic extension:
- The applicant must be renewing their ...
Last month, DHS announced E-Verify employers would be eligible to utilize an alternative remote document verification procedure when completing Section 2 of Form I-9, starting August 1, 2023. Only a few days later, DHS published a Federal Register notice requesting comments on a pilot program that would allow employers not enrolled in E-Verify to utilize remote examination procedures as well.
The proposed new rule would largely track the new rule for E-Verify employers, details of which are available here: DHS Announces Remote I-9 Document Procedure for E-Verify Employers | Burr ...
In implementing its first new COVID-19 travel restriction in months, the U.S. Centers for Disease Control and Prevention (CDC) recently issued guidance requiring all persons traveling from mainland China, Hong Kong, and Macau, to provide a negative COVID-19 test or documentation of COVID-19 recovery within two days of departing for the United States. The policy went into effect January 5, 2023, and applies to airline passengers two years of age or older. The requirement also applies to passengers traveling through Incheon International Airport, Toronto Pearson International ...
On February 14, 2023, U.S. Citizenship and Immigration Services (USCIS) made a small change in the Child Status Protection Act (CSPA) that will have a significant impact on the lives of many immigrant families.
To understand how this works, take the example of an employer sponsoring a foreign national for lawful permanent resident status - the foreign national’s spouse and children, under the age of 21, are also eligible to participate in the process to receive residency. However, the application process can take years, and in many cases, children have turned 21 during the process ...
USCIS recently announced the annual registration period for the FY2024 H-1B cap will open at noon (ET) on March 1, 2023, and remain open until noon (ET) on March 17, 2023. Registration is an annual electronic process through which USCIS receives registrations from employers seeking to sponsor a foreign national for an H-1B visa. USCIS has historically utilized the registrations to conduct a random H-1B lottery because more visas are requested each year than are available. Registrants are selected at random for an opportunity to fill one of the H-1B cap positions.
The number of H-1B ...
It is no secret that certain sectors of U.S. employers have engaged in significant layoffs over the last six months. Meta—the parent company of Facebook, Instagram, and WhatsApp—laid off more than 11,000 employees in November alone. Meta and other tech companies regularly use the H-1B visa program to sponsor foreign national workers. In fact, Meta is listed as an H-1B dependent company, meaning at least 15% of its workforce is employed by virtue of nonimmigrant work visas. Many economic experts expect the layoff trend to continue in 2023, but demand for workers remains generally ...
Employers wishing to sponsor a candidate for an H-1B visa in Fiscal Year 2024 are approaching an important time of year. United States Citizenship and Immigration Services (USCIS) is expected to announce the H-1B cap registration period for FY2024 in the coming weeks. Last year, the registration period opened on March 1, 2022, and closed on March 18, 2022. USCIS will likely announce a similar registration period this March.
H-1B Registration is an annual electronic process through which USCIS receives registrations from employers for the H-1B lottery. USCIS has historically ...
The Department of Homeland Security (DHS) recently issued a new “public charge” final rule that will go into effect December 23, 2022. The new rule will apply to all permanent residency (Green Card) applications filed on or after the effective date. The new rule is a marked change from the strict President Trump-era public charge rule that spent several years in litigation and was ultimately withdrawn by the Biden administration.
Pursuant to the Immigration and Nationality Act, any noncitizen who, in the opinion of DHS, is likely at any time to become a “public charge” is ...
U.S. Citizenship and Immigration Services (USCIS) recently announced an extension to its waiver of the civil surgeon signature validity requirement for Form I-693. Form I-693 is the Report of Medical Examination and Vaccination Record which must be submitted with an Application for Adjustment of Status to Lawful Permanent Residency. The report is completed by a civil surgeon to confirm a foreign national is not inadmissible (and therefore ineligible to receive a Green Card) based on health and/or vaccination grounds.
The immigration regulations generally require Form I-693 to ...
Since its introduction in 2001, the Premium Processing service offered by the U.S. Citizenship and Immigration Services (“USCIS”) has seen notable changes. Premium Processing was originally introduced as an option for certain immigration benefit applicants and petitioners to request expedited 15-day processing for an additional fee. The fee to request Premium Processing was originally set at $1,000 but has increased several times since the program’s inception, and was most recently elevated to $2,500.
On March 30, 2022, USCIS published a final rule outlining numerous ...
U.S. Citizenship and Immigration Services (“USCIS”) announced a Temporary Final Rule that will increase the 180-day automatic extension period for some Employment Authorization Documents (“EADs”) to 540 days beyond the EAD’s expiration date. The rule, which was published as a response to massive USCIS delays in processing EAD renewal applications, became effective immediately on May 4, 2022, and will remain in effect until October 27, 2023.
In order to benefit from the new rule, an applicant must have timely filed an EAD renewal application and fall within an eligible ...
On January 22, 2022, the Department of Homeland Security (DHS) began requiring all non-U.S. individuals entering the United States by land or ferry across the U.S./Mexico or U.S./Canada borders to be fully vaccinated against COVID-19. The new guidance applies to those non-U.S. individuals who are traveling for both essential and non-essential reasons but will not apply to U.S. citizens, Lawful Permanent Residents, or U.S. nationals.
Any non-U.S. individual entering the United States through land point of entries or ferry must provide proof of a CDC-approved COVID-19 ...
Last week, USCIS announced the H-1B visa cap registration deadlines for FY2023. Registration is mandatory for employers wishing to sponsor a candidate for an H-1B visa in the FY2023 H-1B cap cycle. Registration is an annual electronic process through which USCIS receives registrations from employers for the H-1B lottery. USCIS has historically conducted a random H-1B lottery because more visas are requested each year than are available. Registrants are selected at random for an opportunity to fill one of the H-1B cap positions.
The H-1B cap registration period for Fiscal Year 2023 ...
Effective December 31, 2021, the United States began permitting noncitizen arrivals from Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. A Presidential Proclamation went into effect on November 29, 2021, suspending entry into the United States for individuals who were present in the aforementioned Southern Africa countries within a 14-day window before their planned date of entry. The Presidential Proclamation was a result of the World Health Organization’s report identifying an area of increased presence of COVID-19 variants in ...
Employment Authorization Document (EAD) processing times have been severely delayed in recent years, rendering certain dependent nonimmigrants temporarily ineligible to work and causing gaps in some U.S. employers’ workforces. An EAD can take over 12 months for adjudication under current processing times. Recently, USICS issued guidance expanding its automatic EAD extension rules to apply to additional foreign nationals. The agency further confirmed L-2 and E-2 dependent spouses are considered eligible to work “incident to status,” meaning they no longer require ...
On October 25, 2021, President Biden announced plans to revoke the current country-by-country travel restrictions to the United States which have been in place since January 2020. The order outlines new air travel policies for foreign travelers seeking to enter the United States as nonimmigrants, which relies primarily on COVID-19 vaccination status and effectively revokes Presidential Proclamations 9984, 9992, 10143, and 10199, all of which restricted entry to the United States from Brazil, China, South Africa, the United Kingdom, the Schengen countries in Europe, Ireland ...
Beginning October 1, 2021, United States Citizenship and Immigration Services (“USCIS”) will require COVID-19 vaccinations for all applicants applying for lawful permanent residence (i.e. green card) with some exceptions. Specifically, all green card applicants who receive their medical examination from a designated civil surgeon/panel physician (“Physician”) on or after October 1, 2021 must complete the COVID-19 vaccine series and provide documentation of vaccination. This change will impact applicants who have their Physician complete Form I-693 ...
On October 7, 2020, the Department of Labor (“DOL”) announced an Interim Final Rule titled, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” would go into effect on October 8, 2020. The rule would have amended the regulatory scheme used to calculate prevailing wages for foreign workers being sponsored for an employment-based Green Card through the PERM process as well as the H-1B, H-1B1, and E-3 nonimmigrant visa programs. In effect, the rule would have resulted in significant increases to the mandatory ...
While the United States has seen a drastic drop in COVID-19 cases as vaccinations become more prevalent, other countries continue to see significant infection rates. Travel restrictions aimed at curbing the spread of COVID-19 remain in place. Currently, foreign nationals who have been present in China, Iran, India, Brazil, South Africa, the Schengen region, the United Kingdom, or Ireland within fourteen days of attempting entry into the United States will generally be refused. In order to avoid disruptions, businesses employing foreign nationals on H, L, O, and other temporary ...
Last month, President Joe Biden (“President Biden”) wrapped up his first 100 days as President of the United States – focusing on a myriad of issues from the Coronavirus pandemic (“COVID-19”) to America’s immigration system. Inasmuch as immigration affairs remained at the forefront under the previous administration, America’s immigration system continues to be a pressing topic for the Biden administration. President Biden has taken various actions and positions on key immigration issues, many of which could significantly impact businesses that regularly ...
On March 30, 2021, USCIS announced completion of the initial FY2022 H-1B Cap-Subject lottery selection process. Beginning April 1st, those selected were eligible to start filing. But what if your employee was not selected? Even without an H-1B selection, there are numerous options still available so businesses can continue to employ valuable foreign national workers.
Optional Practical Training (“OPT”)
Foreign national college students seeking to gain practical experience in their field of study have the opportunity to apply for twelve months of work authorization in the ...
On June 22, 2020, the Trump Administration announced Presidential Proclamation 10052 (“PP 10052”), which suspended the issuance of many H, J, and L visas at U.S. Embassies and Consulates. The ban was originally set to expire on December 31, 2020, but the Trump Administration extended the effective date through March 31, 2021. PP 10052 was implemented as a measure to protect workers in the United States amid high unemployment rates caused by the COVID-19 pandemic. As a result, many foreign nationals were prevented from applying for a visa to enter and work in the United States ...
After federal courts blocked their first attempt in December, the U.S. Department of Labor ("DOL") recently published a new final rule seeking to again increase the minimum wage paid to foreign workers when sponsored for an H-1B visa or green card. The DOL issued the rule on January 14, 2021 with an effective date of March 15, 2021. The DOL announced the new rule just six (6) days before the Biden administration took office. The increased wages will go into effect in a staggered manner between the effective date of the rule on July 1, 2024. The new rule could significantly impact the strategy ...
Earlier this year, President Trump issued a Presidential Proclamation restricting foreign nationals from entering the United States on certain temporary work visas through at least December 31, 2020 (“the Proclamation”). On October 1, 2020, a California District Court issued an order barring the government from enforcing the visa ban, but only against several large corporate associations and their members. The associations include the National Association of Manufacturers, the Chamber of Commerce of the United States of America, Technet, Intrax, Inc., and the National ...
COVID-19 has affected nearly all areas of immigration, including the speed at which the United States Citizenship and Immigration Services (“USCIS”) is able to produce the Employment Authorization Document (“EAD card”). Thousands of foreign nationals must typically have the EAD card “in hand” to begin or continue lawful employment. In a settlement reached last month (Subramanya v. USCIS, 7/22/20), up to 75,000 foreign employees may find relief from the delayed card production.
USCIS has historically printed and mailed EADs within 48 hours of approval; however, in ...
The Student Exchange Visitor Program (SEVP) announced July 6, 2020 that the flexibility granted to nonimmigrant students in F-1 or M-1 status to continue their studies online due to the COVID-19 crisis will be modified for the fall 2020 semester. Federal regulations normally allow students to take one class or three credit hours online per full course load with limited exceptions. When schools had to close in the spring and/or summer terms to comply with state or local regulations, SEVP provided guidance in March on how to proceed with online or alternative learning procedures for ...
The White House recently issued a Presidential Proclamation restricting foreign nationals from entering the United States on certain temporary work visas. The original Proclamation provided the suspension and limitation on entry would apply to foreign nationals attempting to enter the United States on (1) an H-1B or H-2B visa; (2) a J-1 visa if participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program; and (3) and L-1 visa (both managerial/executive and specialized knowledge). On June 29, 2020, the administration issued a second ...
On June 22, 2020, President Trump issued a Presidential Proclamation restricting foreign nationals from entering the United States on certain temporary work visas. Just two months earlier, on April 22, 2020, the administration temporarily suspended the entry of most foreign nationals seeking to enter the United States as Lawful Permanent Residents (also known as Green Card holders). The articulated reason for both directives is to protect U.S. workers from job competition during the economic recovery related to the COVID-19 pandemic.
Who is Restricted?
The Executive Order ...
On May 29, 2020, U.S. Citizenship and Immigration Services (“USCIS”) announced the phased resumption of Premium Processing. Premium Processing allows employers to obtain expedited decisions on certain immigration filings by paying an additional $1,440.00 fee. Because USCIS can take months to process petitions, Premium Processing is heavily utilized by many employers to avoid delays in employing specialized foreign national workers. USCIS suspended Premium Processing in March 2020 due to the COVID-19 pandemic.
Effective June 1, 2020, USCIS began accepting Premium ...
On May 24, 2020, President Trump issued a proclamation restricting travel from Brazil, which now has the second-highest number of confirmed coronavirus cases after the United States. The restrictions mirror those already in effect for China, Iran, UK, Ireland, and Europe’s Schengen Area (which includes 26 European countries).
Specifically, the order restricts and suspends the entry into the United States for individuals “who were physically present within the Federative Republic of Brazil during the 14-day period preceding their entry or attempted entry into the United ...
On April 22, 2020, President Trump signed an Executive Order restricting immigration to the United States with the stated intent of protecting U.S. citizens from job competition and preserving medical resources as the economy aims to reopen following the COVID-19 crisis. The President initially indicated an intent to suspend all immigration, but the final Executive Order was much more limited.
Effective April 23, the order temporarily suspends the entry of those seeking to enter the United States as new Lawful Permanent Residents (more commonly known as Green Card holders) for 60 ...
There are many COVID-19 challenges facing employers in the current environment, including how to properly handle H-1B employees working from home or another remote work location. There are special notice and posting obligations associated with H-1B sponsorship, and an employer must comply with these obligations when the employee’s work location changes and/or expands.
When an H-1B employee's remote work location falls within a normal commuting distance from their primary work location, a new Labor Condition Application (LCA) and amended H-1B petition are not generally ...
It is no secret that teacher shortages are proving to be a significant challenge for school districts across the country. The Learning Policy Institute estimates the country-wide shortage was at as many as 110,000 teachers by the end of the 2017-2018 school year. In its annual report on the number of teachers leaving the classroom in South Carolina, the South Carolina Center for Educator Recruitment Retention and Advancement (“CERRA”) confirmed more than 6,500 teachers left their positions during the 2018-2019 school year. While the number of teachers leaving the profession ...
It’s official, almost. Implementation of the new H-1B filing process for 2020 is fast approaching and more details have been released. DHS published a notice in the Federal Register on January 9, 2020, which officially announced the process.
Under the new system, employers, or their legal representative, will complete an online registration process, at a cost of $10.00 per petition, which requires basic information about the company and the requested H-1B beneficiary. Information such as employer legal name, employer identification number, country of birth and citizenship ...
As 2019 draws to a close and millions of people contemplate their resolutions for the new year, USCIS made good on their promise and announced the implementation of a new H-1B filing process for 2020. USCIS originally announced the change in early 2019, but delayed implementation. The new process significantly changes the H-1B petition timeline and requires employers to prioritize foreign national hiring decisions earlier than previous years.
In the past, employers seeking to sponsor foreign nationals for H-1B visas prepared and filed full visa petitions in the first five ...
The second installment of the Summer Green Card Series explained the function of the Visa Bulletin. In the third installment, we cover how to read the Visa Bulletin and answer some common Visa Bulletin-related questions.
How to Read the Visa Bulletin
The above figure is the Visa Bulletin’s Final Action Date Chart for July 2019, which USCIS indicated should be used to determine whether a foreign national is subject to a filing backlog. Applicants must first determine their employment-based category. The applicant must then look to their corresponding country of origin. The ...
Often times, the first question asked by employment-based Green Card beneficiaries during an initial strategy consultation is, “How long until I have my Green Card in hand?” While the answer varies depending on the particular Green Card strategy and the candidate’s country of birth, the Visa Bulletin is always a factor that must be considered. Particularly for Indian and Chinese nationals, Visa Bulletin backlogs can delay issuance of a Green Card for many years. In some cases, the wait can be nearly a decade. In this post, we explain the Visa Bulletin’s function. In our third ...
PERM can be one of the most confusing and frustrating portions of the employment-based Green Card process for employers. PERM is driven by numerous regulatory requirements and the slightest mistake can doom a Green Card sponsorship. As Part One of Burr and Forman, LLP’s Summer Green Card Series, we look at the PERM process so employers can understand what to expect and how to successfully prepare applications.
What is PERM?
PERM stands for Program Electronic Review Management and is the web-based program operated by the Department of Labor (“DOL”) for obtaining Labor ...
Now that the April 1, 2019 H-1B visa deadline has passed, thousands of employers may find themselves looking for an alternative to employ valuable foreign workers. While not receiving as much media popularity as the H-1B program, there are various alternative approaches to avoid disruption with respect to foreign labor such as the E-2 and L-1 visa. Each visa program has separate requirements that are important to keep in mind when establishing an appropriate immigration strategy.
The L-1 Intracompany Transferee
The L-1 Intracompany Transferee visa is available to employers with ...