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The Department of Homeland Security announced a final rule which permanently increases the automatic extension period for certain renewal applicants with expiring Employment Authorization Documents (EADs).
Key Points:
Additional Information: “Increasing the automatic extension period for certain employment authorization documents will help eliminate red tape that burdens employers, ensure hundreds of thousands of individuals eligible for employment can continue to contribute to our communities and further strengthen our nation’s robust economy,” said Secretary of Homeland Security, Alejandro N. Mayorkas.
This alert has been provided by the BAL U.S. Practice Group.
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The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing Times: As of Dec. 1, 2024, the department was adjudicating PERM applications filed in September 2023 and earlier, conducting audit reviews on applications filed in December 2022 and earlier, and reviewing appeals for reconsideration filed in July 2024 and earlier.
Average Number of Days to Process PERM Applications:
PWD Processing Times: As of Dec. 1, the National Prevailing Wage Center was processing PWD requests filed in May 2024 and earlier for H-1B OEWS and non-OEWS cases as well as for PERM OEWS and non-OEWS cases.
Redeterminations were being considered on appeals filed in August 2024 and earlier for H-1B cases and July 2024 and earlier for PERM cases.
Center Director Reviews were being conducted for H-1B cases filed in January 2024 and earlier, and PERM cases filed in March 2024 and earlier.
BAL Analysis: Our data aligns with DOL’s recent report.
The State Department announced an update to the Exchange Visitors Skills List, taking effect on Dec. 9, that removes multiple countries subject to the two-year residency requirement, including China and India.
Additional Information: This list is used by the State Department and the Department of Homeland Security to determine whether an individual who has been admitted into the United States on a J-1 nonimmigrant exchange visitor visa is subject to the two-year foreign residence requirement under the amended Immigration and Nationality Act.
The Exchange Visitor Program is a key diplomacy tool that serves as a vehicle for advancing U.S. foreign policy objectives in designated countries whose nationals and residents participate in exchange visitor programs.
The update, which takes effect on Dec. 9, reflects directives outlined in the Biden administration’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence issued in 2023 with further guidance provided in a follow-up memorandum released in October.
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.
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.
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.
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.”