As the federal fiscal year draws to a close on September 30, 2024, there are several notable updates from U.S. courts and federal agencies affecting the employment-based immigration system.
H-4 Employment Authorization Continues
The U.S. Court of Appeals for the D.C. Circuit issued a decision on August 2, upholding the regulation that authorizes the Department of Homeland Security (DHS) to extend employment authorization to the spouses of certain specialty occupation workers. The Court affirmed that the employment authorization rule is consistent with the statutory framework and that DHS has the authority to grant work permits. In practical terms, this means that spouses of H-1B workers who have passed certain milestones in the green card process can continue to seek career opportunities by legally working in the United States.
Possible Updates to Schedule A
The Department of Labor (DOL) has predetermined that there are insufficient U.S. workers who are able, willing, qualified, and available for certain occupations, and therefore the process for hiring a foreign worker can be expedited by not requiring a test of the U.S. labor market. These occupations are referred to as Schedule A occupations. The current list of occupations that are exempt includes nurses and physical therapists. DOL is reportedly considering adding other roles, including Artificial Intelligence (AI) and other STEM-related occupations.
This month, DOL is expected to complete its analysis of the public comments it received regarding updates to Schedule A designations. Employers should remain informed as to whether DOL’s forthcoming analysis results in new occupations designated to Schedule A and ensure compliance with any new regulations.
USCIS Releases Selection Numbers for Second Round of H-1B Lottery
On August 5, USCIS announced the conclusion of a second round of selections for the annual H-1B cap lottery. For most private employers, H-1B specialty occupation visas are subject to a numerical quota of 65,000 plus an additional 20,000 for graduates of U.S. master’s degree programs. Because demand for the visas routinely exceeds supply, USCIS conducts an electronic registration program in the first quarter of the calendar year, during which time employers may nominate employees for H-1B visas. The agency then runs a lottery to determine which employees are eligible to have an H-1B petition submitted on their behalf.
In April, USCIS announced that it had received enough electronic registrations during the initial registration period to reach the fiscal year 2025 cap, including the master’s cap. The agency selected 114,017 beneficiaries, resulting in 120,603 selected registrations. However, at the end of July, the agency announced that it would need to select additional registrations for unique beneficiaries to reach the FY 2025 regular cap. (USCIS concluded that the master’s cap had been reached.) On August 5, USCIS announced that it had selected an additional 13,607 beneficiaries in the second round of the H-1B lottery, resulting in 14,534 selected registrations. Employers now have until early November to submit H‑1B petitions on behalf of the newly selected beneficiaries.
September 2024 Department of State Visa Bulletin
Congress imposes a numerical control system for prospective immigrants to acquire U.S. permanent residence. Every month, the Department of State (DOS) issues its Visa Bulletin, which lists “cut-off dates” for each numerically limited immigration category.
The U.S. Department of State recently released the September 2024 Visa Bulletin. Priority dates have not advanced in any employment-based (EB) categories. Additionally, “final action dates” for certain EB‑3 worker categories have retrogressed by one full year. The EB-3 category includes (a) professional positions requiring a bachelor’s degree, (b) skilled positions requiring at least two years of experience, and (c) unskilled positions requiring less than two years of experience. This update to the Visa Bulletin may cause delays in processing for permanent residence (a “green card”) for EB-3 workers, although retrogression toward the end of the federal fiscal year is common. As employers and beneficiaries stay abreast of these dates, we recommend developing an immigration strategy to optimize visa processing and compliance.