January 2025 Immigration Newsletter

T&R Immigration Newsletter

January 2025

T&R wishes you and yours a happy, healthy, and successful 2025! In this month’s newsletter, T&R provides updates and information about (1) H-1B modernization rule; (2) final rule for automatic extension of certain EADs; (3) USCIS Policy Manual Updates for O-1 visas and National Interest Waiver (EB2) immigrant visa petitions; and (4) February Visa Bulletin.

H-1B MODERNIZATION RULE TAKES EFFECT FRIDAY, JANUARY 17^th

The H-1B modernization regulation, which was first proposed in October 2023, goes into effect this Friday, January 17^th. It represents a significant overhaul of the H-1B regulations aiming to clarify requirements, enhance compliance, and improve efficiency.

This rule is several hundred pages long, but highlights include:

Deference for all petitions filed on Form I-129: This regulation now codifies that USCIS adjudicators should give deference to prior approvals for the same employer and same beneficiary and same underlying facts (job title and duties).  This means that unless the parties have changed or there is another material change, USCIS should defer to the prior approval.  This applies to all visa categories that get filed on Form I-129 including H, L, O, P, Q, and TN. 

NOTE:  Under the first Trump administration, they did away with “deference” and adjudicated each petition as if it were new.  Deference is now codified in this new rule.

Specialty Occupation Definition:  The rule makes several revisions to the definition of specialty occupation including clarification of the wording that a specialty occupation “normally” requires a bachelor’s degree. The rule indicates that "normally" means that it does not "always" require a bachelor's degree.  The employer can accept several different degrees for a position if the fields of those degrees are “directly related” to the duties of the offered position.  Then the rule defines that a directly related degree must have a “logical connection” to the duties of the H-1B position.  The position must also require the use of specialized knowledge in the field and not merely a basic degree requirement.

The rule gives specific examples of specialty occupations and the types of degrees that would be acceptable, including for Computer Systems Analyst, Market Research Analyst, Teacher, Economist and others.

NOTE: Under the first Trump administration, they were issuing requests for evidence (RFE) that stated that a specialty occupation must require a bachelor’s degree in only one specific field that is required for the position.  This rule allows that there can be several degree requirements for the position.

Expands cap exempt organizations:  The regulation broadens the definition of “nonprofit research organization” or “government research organization” for cap exempt organizations to mean that research is a fundamental activity of the organization.

NOTE:  Under the first Trump administration, they required that research be the primary activity of the organization.  The new rule codifies that it can be a fundamental activity and not the primary activity of the organization.

Codifies Requirement for Amended Petitions: The rule codifies the long standing USCIS policy that when there is a material change, such as a change of location, a new H-1B petition is required.  The amended petition must be filed before the change takes place.  The exception to this is when the change of location is in the same area listed in the Labor Condition Application (LCA).

Allows H-1B for owners:  The new rule allows for “beneficiary-owners” for H-1B petitions where the H-1B beneficiaries have a controlling interest in the petitioning company. The USCIS will limit the duration of the initial approval and approval of the first extension to 18 months .

Site visits: Codifies and expands the scope of site visits for H-1B petitions and requires compliance with site visits or else the petition could be denied or revoked.  This is particularly relevant when the employee is working at a third-party location or when the company has a remote working arrangement.

The rule also addresses job changes and H-1B portability, when an employer must update a public access file, wage compliance, and a commitment by USCIS to improve processing times for adjudicating H-1B petitions. 

RULE FOR AUTOMATIC EXTENSION OF EADs TAKES EFFECT FRIDAY, JANUARY 17^th

This new regulation increased the automatic extension period of employment authorization documents (EADs) for certain applicants filing timely extension applications on Form I-765.  It extends the automatic extension from up to 180 days to up to 540 days.  This automatic extension applies to:

• individuals with pending I-485 applications to adjust status,

• spouses of E and L nonimmigrants with unexpiredI-94 cards showing “s” for spouse, and

• spouses of H-1B nonimmigrants with an unexpired H-4 I-94, provided that the H-1B principal is the beneficiary of an approved I-140 petition.

More information and a complete list of who benefits from this rule can be found here.

UPDATES TO USCIS POLICY MANUAL – JANUARY 2025

The USCIS has updated its Policy Manual for O-1 petitions for Persons of Extraordinary Ability and for National Interest Waiver (EB2) immigrant visa petitions.  The updated guidance in the Policy Manual is the authoritative sources for USCIS adjudications and replaces any previous instructions or interpretations.  These policy updates now control how the USCIS should adjudicate these types of petitions.

O-1 Persons of Extraordinary Ability: On January 8, 2024, USCIS updated its policy manual guidance to clarify how it evaluates evidence for eligibility for O-1A and O-1B petitions for persons of extraordinary ability, including examples of evidence for beneficiaries who work in critical and emerging technologies such as Advanced Computing, Biotechnologies, and Artificial Intelligence.  Some of the updates include:

• Petitions can be filed by companies on behalf of “beneficiary-owners” if the company is a separate legal entity.

• Updates the “critical role” in esteemed organization criteria clarifying that an applicant may be a member of a key committee or “high-performing team” within a distinguished organization.

• Broadens the definition of “event” for when there can be a three-year extension instead of a one-year extension of O-1 status.  Evidence to support a three-year extension can include a new employment contract, a three-year itinerary of events, deal memos showing new projects or events, and evidence that the work will continue to be in the field of extraordinary ability. 

Overall, these are positive updates that aim to bring clarity and consistency in adjudicating O-1 petitions.  The updated policy manual provides helpful examples as well.  And while not specifically indicated, we suspect that these same updates will apply to EB-1a immigrant visa petitions for persons of extraordinary ability.

National Interest Waiver (EB-2): USCIS updated its policy manual on January 15^th for employment second preference petitions for persons of exceptional ability whose work is in the national interest seeking a waiver of the labor certification application (PERM) requirement.  This is referred to as the national interest waiver (NIW).  This update includes: 

• Definition of a person of “exceptional ability”.  The foreign national can qualify as a person of exception ability either because the person is a member of a profession holding an advanced degree or based upon a bachelor’s degree plus five years of post-bachelor’s professional experience.  The policy update clarifies that USCIS will first determine if the proposed endeavor for the person is in a “profession” and that the person’s degree and/or experience being used is related to the endeavor.

• Defines national endeavor to mean more than a general occupation.  For a proposed endeavor it is not sufficient to just show a job offer, but also that the individual’s endeavor stands to have broader implications, such as for the field, a region or the public at large.

• Addresses and builds upon prior policy manual updates the unique considerations for person with advanced STEM degrees and entrepreneurs.

The USCIS policy update also provides examples of what would qualify as exceptional ability and as a national endeavor, as well as examples of what qualifies a person to be “well-positioned to advance your endeavor” and why it is more beneficial to waive the job offer and grant the NIW than to test the job market through labor certification (PERM). 

This policy update is effective immediately and applies to all pending applications as well as those filed on or after January 15^th.

FEBRUARY 2025 VISA BULLETIN

U.S. Department of State (DOS) released the February 2025 visa bulletin. USCIS will honor Final Action date chart for February. There is only modest forward movement for India and China in the EB-2 and EB-3 categories by about two weeks.  All other dates remain the same.  

Here are the dates for Final Action chart:

EB-1:  India remains at February 2, 2022; China remains at November 8, 2022. 

EB-2:  India moves ahead 2 weeks to October 15, 201; China stays at April 22, 2020. 

EB-3:  Professional and Skilled workers – India moves ahead by 2 weeks to December 15, 2012; China moves ahead by one month to July 2, 2020.  Other workers – India moves ahead by 2 weeks to December 15, 2012; China remains at January 1, 2017. 

EB-4:  Remains at January 1, 2021 for all countries including India and China.

EB-5:  Unreserved EB-5 category for India and China remains the same (January 1, 2022 and July 15, 2016 respectively).

Only foreign nationals with priority dates prior to the dates indicated on the visa bulletin can file applications to adjust status or consular process for an immigrant visa.