New USCIS Benefit for Employers and Their Foreign National Employees with Family Members

A recent settlement with the class action lawsuit Edakunni v. Mayorkas now requires U.S. Citizenship & Immigration Services (USCIS) to review I-539 (status) and I-765 (work) applications for spouses and minor children of H-1B and L-1 visa holders at the same time the primary I-129 petition is reviewed. USCIS is implementing this requirement for applications filed with an I-129 petition on or after January 25, 2023, whether filed with regular or premium processing. This USCIS adjudication requirement will be in effect for at least the next two years.

This is a significant win for employers, families, and specifically L-2 and H-4 spouse visa holders. These employees have previously had limited opportunities to automatically extend their U.S. work authorization because this work authorization can only be extended to the end date of the L-2/H-4 visa holder's status. For nearly four years, employers have experienced inconsistent availability of their L-2 and H-4 visa holding employees due to increasing USCIS review times of these work card and status applications, even after approval of the primary L-1 or H-1B petition. In 2022, L-2 spouse visa holders gained the ability to work incident to their I-94 L-2S status so a separate work (EAD) card is no longer required. However, H-4 spouse visa holders must still obtain a separate work (EAD) card. Concurrent review will limit potential gaps in U.S. work authorization for qualified L-2 and H-4 nonimmigrants.

While USCIS is held to this new adjudication requirement for the benefit of H-4 and L-2 visa holders, employers may consider additional options to obtain, maintain, or limit gaps in U.S. work authorization for their qualified prospective or current employees.

Other Possible Options for Qualified Prospective or Current Employees

Annual H-1B Cap

The H-1B visa is available to foreign nationals with at least a Bachelor’s degree (or equivalent experience) temporarily performing services in a specialty, professional occupation in the U.S. Each fiscal year, October 1 – September 30, the government mandates an annual limit (or cap) for the issuance of first-time visas in the H-1B category. The annual cap allows for 65,000 H-1B visas and additional 20,000 H-1B visas, specifically for candidates with a U.S. Master’s degree or higher.

Between March 1-17th, 2023, employers can complete an online registration for any candidates they intend to sponsor. By April 1st, USCIS will conduct a lottery and notify employers and practitioners of selected candidates. From April 1 until June 30th, employers can mail in a paper H-1B cap petition for those candidates selected from the registrations. The earliest date an employee can activate their H-1B status and work authorization is October 1st of the selection year.

Last year, USCIS received nearly 484,000 registrations for the 85,000 first-time H-1B visas available. Considering the relatively low selection rate for the H-1B cap lottery, employers may consider additional nonimmigrant options for qualified prospective and current employees, including TN, E-3, H-1B1, J-1, or O-1, as well as the National Interest Waiver immigrant petition.

TN, E-3, and H-1B1

If an individual is a citizen of Australia, Canada, Chile, Mexico or Singapore, there are year-round visa options available, including: TN (Mexico or Canada), H-1B1 (Singapore or Chile), or E-3 (Australia). The TN is available to specific professional occupations, while the H-1B1 and E-3 have similar qualifications to the H-1B, without the lottery requirement.

J-1

The J-1 exchange visa is authorized for individuals who intend to participate in an approved program for the purpose of teaching, studying, researching, training or other similar activity. J-1 visa holders are sponsored by programs designated by the U.S. Department of State, which serve to promote the exchange of people, knowledge, and skills in education, arts, and science.

The first step in obtaining a J-1 visa is to submit the requirements for a Form DS-2019, Certificate of Eligibility for Exchange Visitor Status through a sponsoring agency. Once the Form DS-2019 is obtained, the individual can apply for a J-1 visa at a U.S. Consulate and can enter the U.S. up to 30 days before their program begins. In January 2022, the White House announced an expansion of the J-1 program to attract top STEM talent.

O-1

The O-1 nonimmigrant visa is available to individuals with extraordinary ability in the sciences, arts, education, business, or athletics. Individuals with a demonstrated record of extraordinary achievement in the motion picture or television industry may also be eligible. These individuals must have been recognized nationally or internationally for their achievements with well-documented achievements and advancements to qualify for O-1 status.

National Interest Waiver (NIW)

With the recent expansion of premium processing for more green card categories, employers or individuals can also consider options to petition for permanent resident status in the United States. Employment-based immigrant petitions are usually accompanied by a Labor Certification from the Department of Labor confirming that an employer has established that there are not sufficient U.S. workers able, willing, qualified, and available for the individual’s job opportunity. Those seeking a National Interest Waiver (NIW) are requesting that the job offer, and thus the labor certification, be waived because it is in the interest of the United States.

As a starting point, the individual must hold an advanced degree or have exceptional ability in their field. Then, USCIS primarily considers three factors in reviewing NIW petitions: (1) the substantial merit and national importance of the proposed endeavor; (2) that the individual is well-positioned to advance the proposed endeavor; and (3) that it would benefit the United States to waive the labor certification process. The January 2022 White House announcement also recognized the importance of STEM in the NIW context and provided a framework for reviewing entrepreneur-petitioner submissions.

For further consideration of any of these options for qualified prospective and current employees, employers may reach out to the Quarles team to discuss immigration strategies for navigating these options.

Nneka Umeh: (312) 715-5124 / nneka.umeh@quarles.com

Libby Glass: (202) 780-2664 / libby.glass@quarles.com