By: Patricia L. Gannon, Esq. , Marcela Bermudez, Esq. , and Ruijie (“Jessica”) Zhang, Esq.
ESTA for Israeli Citizens and Nationals
As of October 19, 2023, eligible Israeli citizens and nationals can apply for Electronic System for Travel Authorization (ESTA) to travel to the United States for tourism or business purposes under the Visa Waiver Program (VWP). ESTA allows for entry to the U.S. for up to 90 days without the necessity of obtaining a U.S. visa. Israeli citizens and nationals with valid B1/B2 visas may continue to use them for tourism or business travel to the United States. ESTA applications may take from a few minutes to up to 72 hours to process. To qualify for ESTA, eligible Israeli citizens and nationals must have a biometrically enabled passport book. Travelers who possess non-biometric, temporary, or emergency travel documents, or travel documents from a non-VWP designated country, are not eligible for travel under the VWP and must instead apply for a U.S. visa. Israeli citizens traveling under the VWP require a round-trip or onward ticket departing the United States and are limited to a maximum of 90 days. Exceeding this period may result in inadmissibility to the United States. Travelers planning to stay for longer than 90 days or foreseeing the need to change their immigration status should apply for a visa. Travelers admitted under the VWP who overstay their authorized period of stay will be removable and ineligible for future VWP travel.
DHS Proposal to Amend the H-1B Regulations
The U.S. Department of Homeland Security (DHS) has proposed changes to the regulations for H-1B specialty occupation workers. The goal is to modernize and enhance the efficiency of the H–1B program, introducing new advantages and flexibilities and enhancing integrity measures. Some of the suggested provisions may have limited effects on various nonimmigrant classifications, including H–2, H–3, F–1, L–1, O, P, Q–1, R–1, E–3, and TN. The Notice of Proposed Rulemaking (NPRM) was published in the Federal Register on October 23, 2023. The 60-day public comment period begins after the NPRM’s publication in the Federal Register .
The proposed measures include:
1. Refining the definition for a “specialty occupation,” allowing a broader range of degrees for a position, provided there is a direct connection between the required degree field and job duties of the position.
2. Clarifying the regulatory criteria that a bachelor’s degree is “normally” required does not mean “always”.
3. Clarifying when an amended or new petition is necessary due to changes in an H-1B worker’s place of employment.
4. Codifying and clarifying the existing deference policy, where prior determinations involving the same parties and facts are generally respected if there has been no substantial change.
5. Requiring evidence of maintenance of status when seeking an extension or amendment of stay for all employment-based nonimmigrant classifications that use form I-129.
6. Eliminating the itinerary requirement for all H classifications.
7. Allowing H-1B petitions to be approved or have their requested validity period extended, by issuing an RFE, asking whether the petitioner wants to update the dates of intended employment if the USCIS finds the petition approvable after the initially requested validity period end date, or the last day for which eligibility has been established.
8. Modernizing definitions for employers exempt from the H–1B annual limit, creating flexibility for nonprofit and governmental research organizations and beneficiaries not directly employed by a qualifying entity.
9. Providing flexibility for F-1 students by extending status and post-completion OPT/STEM OPT until April 1 of the relevant fiscal year for which the H-1B petition is requested, instead of October 1.
10. Providing flexibility regarding the start date as listed on the H-1B cap-subject petitions, permitting the requested start date on or after October 1 of the relevant fiscal year.
11. Addressing H-1B cap registration abuse by (a) selecting a unique beneficiary, rather than by registration, so each unique beneficiary would be entered in the selection process once, regardless of how many registrations were submitted (b) prohibiting related entities from multiple registrations for the same beneficiary, and (c) allowing denial or revocation of H-1B approvals when the petition is based on a registration where the statement of fact was not true and correct, inaccurate, fraudulent or misrepresented a material fact.
12. Enhancing H-1B program integrity through requirements such as requesting contracts, ensuring availability of the bona fide job offer for a specialty occupation position, and availability of non-speculative employment as of the requested start date, aligning labor condition applications with petitions, defining “United States employer” and requiring legal presence.
13. Clarifying that beneficiary-owners, possessing a controlling interest in the petitioner, may be eligible for H-1B status under specific conditions.
14. Codifying USCIS’s authority for site visits and emphasizing that third-party requirements are paramount when assessing specialty occupation positions when H-1B workers are contracted to third-party organizations. These changes are intended to prevent fraud and maintain program integrity.
Updated USCIS Policy Guidance Regarding Blanket L-1 Petitions and Sole Proprietorships
United States Citizenship and Immigration Services (USCIS) has recently issued updated policy guidance , which is now incorporated into the USCIS Policy Manual, effective immediately, to provide clarity on certain aspects of the L-1 nonimmigrant visa classification.
Here are the key points covered in this update:
Sole Proprietorships and Petitions : The updated guidance reaffirms that a sole proprietorship is unable to file a petition on behalf of its owner. This is because a sole proprietorship is not considered a distinct legal entity separate from its owner.
Distinguishing Sole Proprietorship from Self-Incorporated Petitioners : It makes a clear distinction between sole proprietors and self-incorporated petitioners, such as corporations or single-member limited liability companies with a single owner. These entities are recognized as separate and distinct legal entities from their owner, and they are allowed to file petitions on behalf of the owner.
Late Filings seeking to Extend Blanket L-1 Petition : In addition, the update specifies that failing to timely file an extension of the company’s blanket petition will not trigger the 3-year waiting period before another blanket petition may be filed.
November Visa Bulletin
In November 2023, USCIS has instructed the use of the Dates for Filing Chart to determine the eligibility for submitting family and employment-based adjustment of status applications.
Under the employment-based preference, there will be continued retrogression. The Final Action Date for worldwide advanced seven days, from July 8, 2022, to July 15, 2022. USCIS and the U.S. Department of State (DOS) are facing substantial backlogs of employment-based adjustment of status and immigrant visa applications. For EB-2 and EB-3 for nationals chargeable to India, they have enough applications to exhaust all available visas for FY2024 and beyond. As a result, it is unlikely that the cutoff dates would advance beyond those mentioned in the Dates for Filing Chart.
In the family-based preference, specifically, for the F-2A preference category (Spouses and Children of Permanent Residents), the cut-off date for all countries in the Filing Chart is September 1, 2023. This means that concurrent filing of I-130 and I-485 applications is not immediately available. The Final Action Date for F2A for all countries, except for Mexico, is February 8, 2019. F2A numbers for Mexico is February 1, 2019.
Form I-9 with Edition Date 8/1/2023 Must Be Used Starting November 1, 2023
As a reminder, starting November 1, 2023, only Form I-9, Employment Eligibility Verification, with the 8/1/2023 edition date must be used.
USCIS Extends EAD Validity Period to Five Years for Select Categories
On September 27, 2023, USCIS introduced a significant update to its Policy Manual , extending the maximum validity period for certain Employment Authorization Documents (EADs) from 2 years to 5 years. This change impacts specific noncitizen categories, including refugees, asylees, parolees, and individuals with pending applications for various immigration benefits. Below is an overview of the key modifications and categories affected by this USCIS update:
Pending Asylum & Withholding Applications : The maximum validity period for initial and renewal EADs for individuals with pending applications for asylum or withholding of removal has been extended from 2 years to 5 years.
Pending Adjustment of Status : For those with pending applications for adjustment of status under INA 245.11, the maximum validity period for initial and renewal EADs has been increased from 2 years to 5 years.
Suspension of Deportation or Cancellation of Removal : Individuals with pending applications for suspension of deportation or cancellation of removal now benefit from an extended EAD validity period, rising from 1 year to 5 years.
Parolees as Refugees : Parolees admitted as refugees will now have their EAD validity period set to the end date of the authorized parole period, with a maximum of 5 years.
It is crucial to note that the maintenance of employment authorization for nonimmigrants continues to depend on their underlying status, circumstances, and the specific EAD filing category.
5-year Validity for Advance Parole
Although there has not been an official announcement pertaining to Advance Parole (AP), USCIS has also been recently issuing AP documents to applicants valid for five years. The extended validity period for APs may be available to individuals who are now eligible for five-year EADs under the September 27, 2023, guidance (above). The extended validity on APs has been issued in both the combined EAD/AP card and the separate AP document.
Updated Policy Guidance on 2-year Foreign Residence Requirements for J Visa Holders
Effective immediately, USCIS has released updated policy guidance , clarifying how USCIS determines compliance with the 2-year foreign residence requirement for certain J-1 exchange visitors.
This updated guidance applies prospectively to benefit requests submitted on or after October 24, 2023, and supersedes any prior related guidance on this topic. The revised policy provides several key clarifications and provisions, including:
Evaluation Standard : USCIS will determine whether an exchange visitor has met the 2-year foreign residence requirement in the context of a subsequent application or petition under the preponderance of the evidence standard.
Counting Travel Days : The guidance explains that a travel day, where even a fraction of the day is spent in the country of nationality or last residence, will count toward the satisfaction of the 2-year foreign residence requirement.
Case-by-Case Consideration : USCIS will consider exceptional situations where it may be impossible for the benefit requestor to fulfill the 2-year foreign residence requirement, evaluating these cases on an individual basis. In such situations, USCIS will consult with the Department of State.
Waivers for Foreign Medical Graduates : The policy further clarifies the three exceptions to the requirement that foreign medical graduates must obtain a contract from a health care facility in an underserved area when seeking a waiver of the 2-year foreign residence requirement.
a. If the U.S. Department of Veteran’s Affairs (VA) requests the waiver to allow the foreign medical graduate (FMG) to practice medicine with the VA, the FMG is obligated to practice medicine with the VA for a minimum of 3 years, without the necessity of doing so in an HHS-designated shortage area.
b. When an interested federal agency requests the waiver with the intention of employing the FMG for full-time clinical medicine practice, the FMG can fulfill the obligation by working in that capacity for the agency for at least 3 years, rather than practicing medicine in an HHS-designated shortage area.
c. If an interested federal or state agency seeks the waiver for an FMG who commits to practicing specialty medicine in a facility located in an HHS-designated geographic area, the FMG can meet the obligation by practicing specialty medicine in such a facility for a minimum of 3 years. In this scenario, the request must demonstrate a shortage of healthcare professionals capable of providing services in the specific medical specialty to the patients who will be served by the FMG.
