On Jan. 8, U.S. Citizenship and Immigration Services (USCIS) issued policy manual guidance to clarify how it evaluates evidence to determine O-1 visa eligibility, including adding examples of evidence for individuals in critical and emerging technologies.

Key Points:

  • The O-1 nonimmigrant visa is intended for individuals possessing extraordinary ability in the sciences, arts, education, business or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.
  • Updates include:
    • Clarifying that beneficiary-owned separate legal entities can file a petition on the beneficiary’s behalf
    • Guidance regarding evidentiary criteria for O-1A and O-1B nonimmigrants
    • Examples of relevant evidence that may be submitted by an interested U.S. government agency
    • An example of an occupational change within a technological field
    • Clarifying the circumstances under which USCIS limits an extension of stay to one year

The updated guidance was issued in the USCIS Policy Manual, Vol. 2, Part M.

Additional Information: The updated guidance addresses President Biden’s Oct. 30, 2023, Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, which directs the Department of Homeland Security to modernize immigration pathways for experts in artificial intelligence and other critical and emerging technologies, including for O-1A nonimmigrants.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2025 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

The Department of Labor (DOL) announced on Dec. 20 additional guidance on the 2024 Farmworker Protection Final Rule.

Key Points:

  • The additional guidance is based on court orders issued in Nov. 2024 in response to lawsuits brought by groups of farm and business organizations seeking to block implementation of the final rule.
  • DOL concluded that use of the current forms associated with the Farmworker Protection Rule is “infeasible in the short term”— including during the current peak H-2A filing season.
  • Employers can submit H-2A job orders and Applications for Temporary Employment Certification on the Foreign Labor Application Gateway (FLAG) system using applicable forms under the version of 20 Code of Federal Regulations part 655, subpart B that went into effect on June 27, 2024.
  • Waivers of the regulatory time period for filing new H-2A job orders and Applications for Temporary Employment Certification using the applicable forms under the version of 20 CFR part 655, subpart B in effect on June 27, 2024, will be granted for those employers impacted by DOL’s cessation of processing as a result of these court orders. However, this waiver does not extend to certified applications that are withdrawn and refiled.
  • Read the two-page additional guidance here.

Additional Information: On November 27, 2024, all initiated but unsubmitted, H-2A job orders and completed Applications for Temporary Employment Certification in FLAG using the forms associated with the Farmworker Protection Rule under the version of 20 CFR part 655, subpart B in effect as of June 28, 2024, were deleted to help prevent accidental submittals using incorrect versions of the forms and ensure DOL compliance with the court orders.

OFLC has ceased further processing of all pending H-2A job orders and Applications for Temporary Employment Certification using the revised forms in effect on June 28, 2024. Employers with pending job orders/applications have the option of requesting withdrawal of their pending H-2A job order or Application for Temporary Employment Certification using either the FLAG System online withdrawal function or submitting a request in writing to the OFLC at tlc.chicago@dol.gov (the unique FLAG H-2A job order or Application for Temporary Employment Certification case number must be used in the subject line of the email).

The preliminary “Yes/No” question put in place by DOL to comply with court orders has been removed from the FLAG System.

The Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers) codified under 20 Code of Federal Regulations part 655, subpart B that went into effect on June 27, 2024 can be found here.

This alert has been provided by the BAL U.S. Practice Group. 

Copyright © 2025 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

The application filing window to submit an H-2B Application for Temporary Employment Certification for work start dates of April 1, 2025 or later opens on Jan. 1, 2025 at 12:00 a.m. Eastern Time.

Key Points:
  • H-2B applications requesting an April 1, 2025 work start date will be denied if they are filed before January 1, 2025 at 12:00 a.m. Eastern Time.
  • The Office of Foreign Labor Certification (OFLC) will follow established randomization procedures of all H-2B applications requesting a work start date of April 1, 2025 that are filed during Jan. 1 – 3, 2025.
  • Employers should be aware of the following OFLC guidelines to minimize possible delays or denials:
    • If OFLC identifies multiple applications that appear to have been filed for the same job opportunity, OFLC will issue a Notice of Deficiency.
    • If multiple filings are submitted during the three-day filing window, all applications will receive a Notice of Deficiency requesting that the employer demonstrate that the job opportunities are not the same.
    • Employers that fail to establish a bona fide need for each application will receive a non-acceptance denial for each application.

Additional Information: Employers are reminded that Foreign Labor Application Gateway (FLAG) System user accounts are solely for the use of the individual for whom they were created. Sharing the same user account is forbidden and is grounds for terminating FLAG access.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

U.S. Citizenship and Immigration Services (USCIS) announced it will publish a revised edition of Form I-129, Petition for a Nonimmigrant Worker on Jan. 17, 2025.

Key Points:

  • Form I-129 has been revised to align with the H-1B modernization final rule and the H-2 modernization final rule.
  • The Jan. 17, 2025 edition of Form I-129 replaces the Apr. 1, 2024 edition of Form I-129 and will only be accepted if received on or after Jan. 17, 2025.
  • Form I-129 petitions received using the Apr. 1 edition of the form after Jan. 17 will be rejected. There is no grace period for the revised edition of Form I-129 because this revised edition is necessary for USCIS to apply the final rules.
  • For applicants filing Form I-129 by mail, the Apr. 1 edition will not be accepted if received on or after Jan. 17, 2025.
  • A preview edition of the revised form can be viewed here and instructions can be found here.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

On Dec. 17, 2024, officials from the State Department and Mexican government dedicated the new U.S. Embassy Mexico City.

Key Points:

  • The new U.S. Embassy Mexico City is designed to accommodate the operational demands of one of the largest U.S. diplomatic missions globally.
  • The facility will consolidate 39 government agencies and over 1,700 staff currently based in different locations in Mexico City.
  • The expanded consular section, supported by industry-leading technology, will expedite the experience of hundreds of thousands of visitors annually.
  • More information about the new embassy can be found here.

Additional Information: The new embassy is a significant investment in Mexico City, Mission Mexico, North America and the Western Hemisphere and is designed to support one of the United States’ most significant diplomatic missions. The project has invested $310 million into the local economy and generated 2,500 jobs — 1,800 of which were in Mexico City. The facility is a model of optimal building performance, the new embassy integrates advanced security, sustainability, resilience and accessibility features.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

The Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman) issued formal recommendations to U.S. Citizenship and Immigration Services (USCIS) for improving family-based petition routing procedures and preventing post-approval delays.

Key Points:

  • The CIS Ombudsman serves as a liaison between the public and USCIS.
  • USCIS changed its methodology for processing approved Form I-130, Petition for Alien Relative petitions in 2022, impacting response review processes to the somewhat confusing questions that determine where the agency sends the approved form and resulting in tens of thousands of cases being misrouted.
  • On Dec. 18, 2024, the CIS Ombudsman offered the following formal recommendations to USCIS to improve the customer experience and streamline processing:
    • Revise Form I-130 and its instructions
    • Use conditional logic in the online Form I-130 to obtain more accurate responses
    • Implement a self-service tool in petitioners’ online accounts
    • Provide the State Department’s National Visa Center with a mechanism to request and obtain approved petitions from USCIS
    • Provide relief for beneficiaries impacted by the previous routing procedures
  •  The formal recommendation also provides an overview of the transfer process for approved I-130 forms, outlines key concerns and explains how the recommendations address those concerns.
  • After a formal recommendation is made, USCIS is required by statute to respond within three months.

Additional Information: Since 2021, the CIS Ombudsman has submitted two informal proposals to USCIS about this issue which led the agency to implement procedural changes. However, the department noted that more could be done by the agency to address the remaining issues. If implemented, the recommendations will help petitioners complete the form more accurately while helping the agency reduce misdirected petitions, increase efficiency and avoid unintentional burdens on the public. Past recommendations made to USCIS by the department can be found here.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com

The U.S. Embassy and Consulates in India have centralized processing of nonimmigrant visa (NIV) interview cases and made changes to the visa rescheduling process that take effect Jan. 1, 2025.

Key Points:

NIV Consolidation

  • H and L first-time visa interview appointments have been centralized in Hyderabad.
  • B-1 and B-2 visa interview waiver/drop box appointments have been centralized in New Delhi.
  • H and L visa interview waiver/drop box appointments have been centralized in Chennai.

NIV Re-scheduling Changes

  • Starting January 1, 2025, NIV applicants can schedule their first nonimmigrant visa appointment at the location of their choice.
  • Reschedules will be allowed once without charge.
  • Missed appointments or second reschedules will require repayment of visa fees to book a new appointment.

Additional Information: The centralized processing of nonimmigrant visa cases is intended to maximize productivity and increase efficiencies. This change is one of many measures taken to streamline visa processing and increase capacity to meet Indian demand for travel to the United States. Changes to the visa rescheduling process were made to help ensure all applicants have a fair change at getting a visa interview appointment and to reduce wait times.

Regardless of the location of the consular post for which the interview waiver appointment is scheduled, applicants can still submit their documents free of cost at any of the five Visa Application Centers in Chennai, Hyderabad, Kolkata, Mumbai or New Delhi. For a fee of 850 rupees per application, applicants may submit their documents at any of the six Document Dropoff Centers located in Ahmedabad, Bangalore, Chandigarh, Cochin, Jalandhar or Pune. In some circumstances, applicants may be required to appear for an in-person interview at the post where the visa processing has been centralized.

As a reminder, the U.S. Embassy and Consulates in India will begin issuing visas with the new Bridge design. This is a redesign of the visa that will be used alongside the former Lincoln design. All visas with the Bridge and Lincoln design will remain valid until the printed expiration date unless they have been revoked or canceled.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

In our last episode of the year, Jonathan Nagel provides an advisory update on the new European travel systems, and Gabriel Castro and Kristi Ngo suggest their favorite immigration-themed books, movies and media you may want to discover over the holidays.

Explore more episodes of the BAL Immigration Report podcast, available on Apple, Spotify and the BAL immigration news page.

This podcast has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

The Department of Homeland Security (DHS) announced the final rule for modernizing H-2 program requirements for temporary agricultural (H-2A) and temporary non-agricultural (H-2B) nonimmigrant workers and their employers.

Key Points:

  •  The 400+ page rule modernizes and improves DHS regulations relating to H-2 programs and is intended to strengthen worker protections and the integrity of H-2 programs, providing greater flexibility for H-2A and H-2B workers and improving program efficiency.
  •  The final rule includes the following major changes:
  • Program Integrity and worker protections
    • Significant revisions to the provisions regarding prohibited fees
    • Instituting new bases for denial of some H-2 petitions
    • Providing workers “whistleblower protection” comparable to the protection offered to H-1B workers
    • Clarification of requirements for petitioners and employers to comply with U.S. Customs and Immigration Services (USCIS) reviews and inspections
    • Clarification of USCIS authority to deny or revoke a petition when it is unable to verify certain information related to the petition
  • Worker flexibilities
    • Adjustments to validity periods allowing H-2 workers to maintain valid H-2 status for up to 10 days prior to the petition’s validity period and up to 30 days following the petition’s expiration
    • Extension of the existing 30-day grace period following revocation of an approved petition to a period of up to 60 days
    • Establishing a new grace period for up to 60 days allowing H-2 workers to stop working for their petitioner while maintaining H-2 status
    • A permanent portability provision that allows H-2 workers to begin new employment with the same or new employer upon the proper filing of an extension of stay petition rather than only upon its approval
  • Improving H-2 program efficiencies and reducing barriers to legal migration
    • Removal of the requirement that USCIS can only approve H-2 petitions from nationals of countries designated by both DHS and the Secretary of State as program eligible
    • Providing a uniform standard for resetting the 3-year clock following worker departures from the U.S.
  • The complete ruling can be found here.
  • The final rule will be published on Dec. 18, 2024.

Background Information: The Immigration and Nationality Act establishes the H-2A and H-2B nonimmigrant visa classifications for noncitizens coming to the United States to temporarily perform agricultural labor or services or to perform nonagricultural services or labor, respectively.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

The Department of Homeland Security announced a final rule to modernize the H-1B visa program by clarifying the requirements of the H-1B program, providing more flexibility for petitioners and beneficiaries and strengthening program integrity measures. The final rule is scheduled to be published Dec. 18, 2024 and become effective Jan. 17, 2025.

Key Points:

  • The final rule includes clarifications for the requirements of the H-1B program, including:
    • Revising the regulatory definition and criteria for a position to be deemed a “specialty occupation”
    • Clarifying that “normally” does not mean “always” within the criteria for a specialty occupation
    • Clarifying that the petitioner may accept a range of qualifying degree fields as sufficient to qualify for the position, but the required field(s) must be directly related to the job duties in order for the position to be deemed a specialty occupation
  • DHS is codifying its current deference policy to clarify that, when adjudicating a Form I-129, Petition for Nonimmigrant Worker, involving the same parties and the same underlying facts, adjudicators generally should defer to a prior USCIS determination on eligibility.
  • The final rule provides flexibility within H-1B program for:
    • Nonprofit and governmental research organizations and petitions for certain beneficiaries who are not directly employed by a qualifying organization
    • Students seeking to change their status to H-1B by automatically extending the duration of their F-1 status
  • DHS is also taking steps aimed at strengthening the integrity of the H-1B program through this rulemaking, including:
    • Requiring that the petitioner establish that it has a bona fide position in a specialty occupation available for the beneficiary as of the requested start date
    • Codifying its authority to request contracts or similar evidence to determine if the position is bona fide
    • Ensuring that the Labor Condition Application supports and properly corresponds to the petition
    • Codifying USCIS’ authority to conduct site visits and clarifying that refusal to comply with site visits may result in denial or revocation of the petition
    • Providing that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation

Additional Information: A new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning Jan. 17, 2025, which is the rule’s effective date. USCIS stated that because there cannot be a grace period for accepting prior form editions, the agency will soon publish a preview version of the new Form I-129 edition on uscis.gov.

Background Information: The final rule includes many of the provisions proposed in the “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program and Program Improvements Affecting Other Nonimmigrant Workers,” notice of proposed rulemaking, published in the Federal Register on Oct. 23, 2023.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.