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U.S. Citizenship and Immigration Services announced both the federally mandated H-1B visa regular cap and master’s cap had been reached for fiscal year 2025. This means the agency will not be selecting additional registrations entered into the lottery earlier this year.
Key Points:
Additional Information: USCIS will continue to accept and process petitions otherwise exempt from the cap. Such petitions include those filed for current H-1B workers to extend the time they may remain in the U.S., change their terms of employment, allow them to change employers or allow them to work concurrently in additional H-1B positions.
This alert has been provided by the BAL U.S. Practice Group.
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The special enrollment period for eligible Deferred Action for Childhood Arrivals (DACA) recipients to apply for healthcare coverage through the Affordable Care Act (ACA) Health Insurance Marketplace is currently open through Jan. 15, 2025.
Additional Information: Approximately 100,000 uninsured DACA recipients who were previously excluded from eligibility are expected to enroll through the ACA Marketplace or a Basic Health Program. Although the final rule was legally challenged after the HHS announcement in Kansas v. United States of America, eligible DACA recipients can still apply for coverage while a decision is pending.
The Department of Homeland Security (DHS) is suspending certain regulatory requirements for F-1 nonimmigrant students from Lebanon who are experiencing severe economic hardship as a direct result of the current crisis in Lebanon, allowing eligible students to request employment authorization, work an increased number of hours while school is in session and reduce their course load while continuing to maintain their F-1 nonimmigrant status.
The Department of Homeland Security announced that Lebanon is designated for Temporary Protected Status (TPS) for 18 months, beginning on November 27, 2024, and ending on May 27, 2026.
In the world of immigration, a Request for Evidence (RFE) is a notice issued by U.S. Citizenship and Immigration Services (USCIS) requesting additional information or documentation for an immigration petition or application prior to rendering a final decision. While an RFE may be discouraging, it does not necessarily mean that an immigration petition or application will be denied, but it may lead to uncertainty and delays when applying for an employment-based visa or work authorization. With the support of your legal partner, you may address USCIS’ queries and overcome the RFE successfully.
By developing a strong employment-based visa application initially, you are more likely to avoid RFEs and achieve faster, more favorable outcomes. Moreover, even if USCIS issues an RFE, strong employment-based applications filed initially often provide robust foundations to push back on any USCIS challenge. Here are some of the common reasons for RFEs, strategies to increase your chance of approval and how to manage RFEs if you do receive one.
While RFEs can seem intimidating and create significant delays, they’re more common than you might think. For fiscal year (FY) 2023, 9.9% of H-1B applications received RFEs — as well as 31.5% of L-1A applications, 38.2% of L-1B applications, 22.6% of O applications and 17.2% of TN applications. Similar trends are evident for FY 2024.
Percentage of visa applications that received RFEs per fiscal year
Source: USCIS Immigration and Citizenship data
During the first Trump administration, the percentage of visa applications that received RFEs climbed to 40% for H-1B, nearly 54% for L-1A, 58% for L-1B, 30% for O and 28% for TN.
Specific reasons for getting an RFE vary depending on the visa type, but there are several common issues across various applications:
Preparation and attention to detail are crucial in avoiding unnecessary delays or denials. While you can’t guarantee a visa application won’t result in an RFE, you can take precautionary measures to reduce the risk.
Understand the specific evidentiary requirements for your case
Each immigration case is unique, so it’s important to thoroughly understand the specific evidentiary requirements for the visa type you apply for. Review USCIS guidelines and instructions to ensure you provide all necessary documentation.
For example, if the petition you are filing requires that the offered position must be a “specialty occupation,” such as an H-1B or an E-3 petition, you must provide a detailed job description as well as supporting documentation that demonstrates the complex nature of the role.
Submit complete and accurate documentation
Incomplete documentation is a common trigger for RFEs, and inaccurate documentation or information can result in the rejection of your petition, or it can greatly increase the difficulty of addressing the RFE itself.
Double-check all forms, supporting materials and evidence to ensure they are complete and up to date. Ensure you submit all required educational transcripts, diplomas and evaluations to demonstrate the foreign national’s qualifications for the position, as well as all the documentation required on behalf of the company.
By providing a comprehensive, well-organized package, you minimize the chances of receiving an RFE.
Address potential red flags proactively
USCIS officers are trained to identify potential red flags in petitions and/or applications. Take a proactive approach by addressing any potential concerns or red flags in your initial submission. Include explanatory letters, additional evidence and relevant supporting documentation to clarify any issues.
For example, one common red flag for adjudicating officers is whether or not a legitimate employee-employer relationship exists between the company and the employee. Make sure to include employment contracts, offer letters, pay stubs and tax documents to establish a clear employer-employee connection.
BAL has developed AI and automation-powered analysis tools specific to immigration policy and industry benchmarking of historical data, enabling us to identify potential high-risk areas in a case and take proactive measures to achieve swifter, more favorable decisions.
In one case, BAL’s data analysis increased a client’s overall approval rate on some immigration case types by as much as 20%.
If you do receive an RFE on a visa application or petition, there is still a good chance it can be approved — you just need to respond to each of the issues identified in the Service’s request promptly and thoroughly.
Follow these steps to increase your chances of approval:
In general, stay organized, thorough and focused on addressing the concerns raised.
Hiring foreign national talent can help fill skills gaps and bring specialty knowledge into your workforce, but RFEs can cause major delays, unnecessary stress and additional expenses in the work authorization process.
BAL’s attorneys work diligently to avoid RFEs and ensure a seamless process. Our innovative technology and decades of experience in employment-based immigration law have led to a lower percentage of RFEs than the national average. For example, while 9.6% of H-1B petitions resulted in RFEs for FY 2023, only 5.3% of H-1B petitions filed by BAL received RFEs in the same period.
Contact our team to learn how we can provide a smooth, error-free visa application or petition process.
In this week’s episode, BAL’s Jeremy Fudge and Frieda Garcia celebrate the BAL Immigration Report’s 100th episode, and gratitude for BAL’s exceptional clients, historic milestones and growth over the last 44 years. Download the episode wherever you get your podcasts and don’t forget to subscribe!
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.
The Department of Homeland Security announced the countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the next year.
Additional Information: This update does not affect the status of H-2 beneficiaries currently in the U.S. unless they apply to extend their stay in H-2 status with a petition filed on or after Nov. 8, 2024.
The Department of Homeland Security (DHS) announced it plans to make nearly 65,000 additional H-2B temporary nonagricultural worker visas available for fiscal year (FY) 2025.
Additional Information: The supplemental H-2B allotment will include 20,000 visas for workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti or Honduras. The remaining 44,716 supplemental visas will be available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the previous three fiscal years.
DHS stated that “the supplemental visa allocation will help address the need for seasonal and temporary workers in areas where too few U.S. workers are available, willing and qualified to do the temporary work and address the labor needs of American businesses.”
The U.S. State Department released the December Visa Bulletin. Filings for employment-based preference categories must use the Dates for Filing chart for December 2024 which will remain the same as last month and shows no advancement for EB-1/EB-2/EB-3. Final Action Dates for India EB-2/EB-3 show some advancement.
Final Action Dates and Dates for Filing Movement:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases
Dates for Filing of Employment-Based Visa Applications
In this week’s episode, BAL’s Edward Rios and Christopher Barnett discuss AI implementation and adoption in the global mobility arena.
Plus, the latest immigration news including an update on litigation against the Keeping Families Together program.