Dear Readers

Many of you may know I have spent my at the intersection of technology and immigration law. Siskind Susser, the law firm I co-founded with Lynn Susser in 1994 was launched simultaneously with our web site. It was just the third law firm in the world with a web site at that point and the first immigration law firm. A few years later in 1998, we launched the first law firm blog (about – what else? – efforts to increase H-1B numbers. In the early 2000s we created some of the earliest social media accounts in immigration law – LinkedIn in 2004, Facebook in 2007 and Twitter in 2008. In 2015, we started using AI to build expert systems for our clients.

And last summer we announced we were building a generative AI product for immigration lawyers in collaboration with the American Immigration Lawyers Association. I’m pleased to tell you all that Gen, built by our sister company, launched in January after several months of testing and refining. The suite of AI tools allows lawyers to research immigration law, draft documents, query documents, translate and summarize. Gen’s library is vast and includes hundreds of thousands of pages of immigration law material. It is carefully designed to produce cited answers to questions and take on a number of tasks like producing checklists, drafts of documents, help formulate arguments, and much more.

We’re also experimenting with new technology that will use AI to advise immigration lawyers on potential case strategies as well as help speed up the drafting of highly complex legal documents. The hope is that these tools will allow us to produce even higher quality work in a faster time frame and also facilitate communications with clients about their cases.

In firm news, we’re pleased to announce that Jason Susser has become a partner at Siskind Susser, joining myself, Lynn Susser, Elissa Taub, Ari Sauer and Adam Cohen. We’re proud of Jason’s rise from paralegal to law clerk to associate and now partner at our firm. Jason has built a reputation as one of the top lawyers in the US when it comes to helping high tech start up founders with their immigration matters.

I’ve also completed my service as a board member of the American Immigration Lawyers Association after more than 14 years. I’ve loved my time on the board, but my involvement with AILA continues as a co-author of the AILA Practice and Procedures Manual (along with my colleague Ari Sauer) and a co-founder of Gen.

As always, readers are welcome to reach out to our firm if they need help with an immigration matter. Just go to to set up an appointment with one of our lawyers.

Best Regards,

Greg Siskind

Ask Visa Law

By Robby Rubin

I am currently on the 4th year of an R-1 Religious Worker nonimmigrant visa, that is expiring next year. What are my options if I want to remain in the United States as a religious worker? 

Religious workers nearing the end of their maximum allowed time on an R-1 visa (60 months) have historically managed to maintain their work authorization as a religious worker by filing Immigrant Petition Form I-360 and beginning the process towards adjusting status to a green card holder in the EB-4 Religious Worker classification. Prior to March 2023, the EB-4 category was current, and upon filing an I-360, religious workers would receive priority dates that would allow them to file an I-485 that would allow them to apply for work authorization while waiting for their green card.  

However, in March 2023, the Department of State published a rule in the Federal Register, changing its interpretation of certain statutory provisions regarding the availability of immigrant visa numbers in categories subject to an annual numerical limit. As a result of this change, a number of new categories were combined for visa quota counting purposes, and the category quickly became oversubscribed. Currently, EB-4 final action dates are backlogged approximately five years to December 1, 2019. This means that even brand new R-1 recipients, who receive up to 5 years on their nonimmigrant visa, will likely run out of time on their nonimmigrant status before a visa number becomes available for them, meaning they will either have to leave the United States and apply and wait for their priority date to become current, or find other solutions to remain in the United States in a work authorized status. 

At Siskind Susser we approached this predicament from two directions. There are certain religious workers who have the education credentials and/or work experience to qualify for an EB-2 or EB-3 petition. Either EB-2 or EB-3 may be an attractive option because even though those categories are also backlogged, they are less backlogged. Therefore, an R-1 nonimmigrant visa holder could begin the EB-2 or EB-3 process soon after they begin their R-1 employment and will have better odds of having time to adjust status prior to the expiration of their R-1 time.  

Given that EB-4 has always been the category of choice for religious workers, it is likely that there have been very few attempts, if any, to classify a religious worker in the EB-3 visa category. This requires the employer to undergo the PERM labor certification process, job recruitment, and a Form I-140 Immigrant Petition filing, none of which is required for EB-4. We are confident that in the right situation this can be an attractive option for religious workers, however, it may not work in every situation, especially for religious workers with less than two years left of R-1 time. 

The other option we are currently pursuing with clients is the possibility of filing cap-exempt H-1Bs. In these cases, we rely on the affiliation between the petitioner and an institution of research or higher education, that allows the petitioner to file for cap-exempt H-1B workers. Like the EB-3 option, the cap-exempt H-1B has its limitations and requires an affiliation agreement between two qualified institutions. This arrangement has proven difficult given USCIS’s questionable interpretation of regulatory language and merits an entire Q&A itself. Please feel free to reach out to me, Robby Rubin, for further information and questions regarding the cap-exempt H-1B for religious workers. 

In the News from ABIL

USCIS Issues Guidance on ‘Ability to Pay’ Requirement When Adjustment Applicants Change Employers

U.S. Citizenship and Immigration Services issued policy guidance, effective immediately, on how it analyzes an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications, including instances when the sponsored worker changes employers. 

DOJ Sues Texas Over State Migration Bill

The Department of Justice sued the state of Texas over a bill that would create new state crimes tied to federal prohibitions on unlawful entry and reentry by noncitizens into the United States. 

DOS Issues ‘Bright Forecast’ for Worldwide Visa Operations

The Department of State said its visa processing capacity “has recovered faster than projected” and announced a “bright forecast” for worldwide visa operations in 2024. 

ABIL Global: Canada

The Canadian government is targeting skilled workers and French-speaking candidates in a new category-based selection process. 

DHS Increases Premium Processing Fees

On February 26, 2024, the Department of Homeland Security will increase premium processing fees charged by U.S. Citizenship and Immigration Services. 

U.S. and Mexico Release Joint Communique Following Visit to Discuss Migration Management

On December 27, 2023, a U.S. delegation visited Mexican President Andrés Manuel López Obrador and others to discuss migration management. 

DOS Proposes Supplemental Questionnaire for Passport Applications

The Department of State seeks public comment on a proposed supplemental questionnaire to an existing passport application that would solicit information relating to the respondent’s identity. 

State Dept. Announces Pilot Program to Resume Domestic H-1B Nonimmigrant Visa Renewals

The pilot program will accept applications from January 29 to April 1, 2024. 

OFLC Reminds Employers About Deadlines for Peak H-2B Filing Season

The federal Department of Labor announced that from January 2-4, 2024, it will accept H-2B applications for temporary nonprofessional workers requesting a start date of April 1, 2024, or later. 

USCIS Updates Policy Guidance for International Students

U.S. Citizenship and Immigration Services issued policy guidance regarding the F and M student nonimmigrant classifications, including the agency’s role in adjudicating related applications for employment authorization, change of status, extension of stay, and reinstatement of status. 

State Dept. Expands Consular Authority for Nonimmigrant Visa Interview Waivers

The Department of State has determined that several categories of interview waivers are in the national interest. As of January 1, 2024, consular officers will have discretion to waive the in-person interview for those categories. 

State Dept. Advises on Passport Processing

Passport processing times have returned to the agency’s pre-pandemic norm, the Department of State said. Passport applications will be processed within 6 to 8 weeks for routine service and 2 to 3 weeks for expedited service. Processing times do not include mailing. 

Detained Workers Are Employees Due Minimum Wage in Private Facility Contracted With ICE, Supreme Court of Washington Finds

Detained workers at the private detention center were “employees” and therefore were due at least the minimum wage, the Supreme Court of Washington held. 

USCIS Reaches FY 2024 H-1B Cap

U.S. Citizenship and Immigration Services has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year 2024. 

DHS Publishes Federal Register Notice Reiterating Extensions of TPS Re-Registration Periods for Several Countries

The Department of Homeland Security published a Federal Register notice reiterating extensions of the periods to re-register for Temporary Protected Status under the existing designations of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. 

District Court Rules in College’s Favor in EB-1 Case

In Scripps College v. Jaddou, a U.S. District Court in Nebraska held that U.S. Citizenship and Immigration Services improperly denied the plaintiff’s I-140 immigration petition when it found that the beneficiary of the petition did not qualify for an employment-based first preference visa as an “outstanding professor or researcher.”  

ETA Seeks Information on STEM and Non-STEM Occupations in PERM Schedule A

The Department of Labor’s Employment and Training Administration is seeking information from the public to potentially consider revisions to Schedule A of the permanent labor certification process to include occupations in Science, Technology, Engineering and Mathematics (STEM), including Artificial Intelligence-related occupations, and non-STEM occupations, for which there may be an insufficient number of ready, willing, able, and qualified U.S. workers. 

ETA Announces Adverse Effect Wage Rates for H-2A Workers in 2024

The Employment and Training Administration has announced Adverse Effect Wage Rates for H-2A workers in 2024, for range (herding or production of livestock) and non-range (agricultural labor or services other than the herding or production of livestock) occupations. 

January Visa Bulletin Released; Religious Workers Category Extended

The Department of State’s Visa Bulletin for January 2024 notes that a stopgap funding bill recently passed by Congress extended the employment fourth preference Certain Religious Workers (SR) category until February 2, 2024.  

USCIS Changes Filing Location for Form I-907 Filed for Pending Form I-140

U.S. Citizenship and Immigration Services has begun transitioning the filing location for Form I-907, Request for Premium Processing, when filed for a pending Form I-140, Immigrant Petition for Alien Workers, from the service centers to appropriate USCIS lockboxes. 

OFLC Announces Annual Determination of H-2A Labor Supply States for U.S. Worker Recruitment

The Department of Labor’s Office of Foreign Labor Certification (OFLC) Administrator has determined that current requirements for labor supply states will remain in effect, with one modification: OFLC will no longer recognize North Carolina and Texas as traditional labor supply states for the state of Michigan.

USCIS Releases Employment-Based Adjustment of Status FAQs

U.S. Citizenship and Immigration Services released frequently asked questions about employment-based adjustment of status. 

State Dept. Issues Final Rule to Eliminate Informal Evaluations of Immigrant Visa Applicants’ Family Members

Effective January 8, 2024, the Department of State is amending its immigrant visa regulations by removing the section allowing a consular officer to conduct an informal evaluation of the family members of an immigrant visa applicant to identify potential grounds of ineligibility. 

USCIS to Launch Organizational Accounts, Enabling ‘Online Collaboration’ and Submission of H-1B Registrations

U.S. Citizenship and Immigration Services plans to launch organizational accounts for non-cap filings and the fiscal year 2025 H-1B cap season. 

Cap Reached for Additional Returning Worker H-2B Visas for First Half of FY 2024

U.S. Citizenship and Immigration Services has received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year 2024 with start dates on or before March 31, 2024. 

February Visa Bulletin Notes Expiration of EB-4 Religious Workers Category

The Department of State’s Visa Bulletin for February 2024 notes that absent legislative action, the non-minister special immigrant program will expire on February 2, 2024. 

USCIS Data Show Increase in O-1A and NIW EB-2 Approvals for STEM Activities

According to a newly released report, U.S. Citizenship and Immigration Services data show a sizable overall increase in O-1A petition approvals for individuals engaged in science, technology, engineering, and mathematics (STEM) activities and in National Interest Waiver EB-2 petition approvals for individuals engaged in STEM activities. 

CBP Updates Website, Provides Trusted Traveler Processing Times

In an effort to reduce unscheduled visits to Trusted Traveler Program Enrollment Centers, U.S. Customs and Border Protection has expanded the TTP-related topics on its public website portal. 

DOL Increases Civil Monetary Penalties for Certain Immigration-Related Employer Violations

Effective January 15, 2024, as part of annual inflation adjustments, the Department of Labor (DOL) is increasing D-1, H-1B, H-2A, and H-2B civil monetary penalties it assesses or enforces for employer violations. 

DOS Provides Guidance, FAQs on Domestic Renewal of H-1B Visas for Certain Applicants

The Department of State has released guidance and frequently asked questions on its new pilot program to resume domestic visa renewals for qualified H-1B nonimmigrant visa applicants who meet certain requirements. The pilot program will accept applications from January 29, 2024, through April 1, 2024, or when all 20,000 application slots are filled, whichever comes first. 

CBP Publishes Interim Final Rule Requiring Electronic Travel Authorization Before Traveling to Guam or CNMI and Establishing a New Travel Authorization Program

A new U.S. Customs and Border Protection interim final rule, effective September 30, 2024, requires persons intending to travel to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) under the Guam-CNMI Visa Waiver Program to submit Form I-736 electronically before traveling and receive an electronic travel authorization before embarking on a carrier for travel to Guam or the CNMI. The rule also establishes the CNMI Economic Vitality & Security Travel Authorization Program. 

DOL Seeks OMB Approval, Comments on O*NET Data Collection Program

The Department of Labor has submitted the O*NET Data Collection Program to the Office of Management and Budget for review and approval. DOL seeks comments on O*NET by February 16, 2024. 

U.S., Mexican Officials Meet in Washington, DC, to Continue Migration Talks

Top officials from the United States and Mexico met in Washington, DC, on January 19, 2024, to continue their discussion and cooperation on efforts to reduce the flow of migrants heading to the United States from Mexico. 

USCIS Releases Additional Details About Organizational Accounts

U.S. Citizenship and Immigration Services unveiled additional details about its launch of organizational accounts in February 2024, in time for the fiscal year 2025 H-1B cap season. 

USCIS May Excuse Untimely Filed Extension of Stay and Change of Status Requests Under ‘Extraordinary Circumstances’

U.S. Citizenship and Immigration Services updated its policy guidance to provide that USCIS, “in our discretion and under certain conditions, may excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.” 

DHS Announces ‘Streamlined and Expedited’ Deferred Action Process for Noncitizen Workers Who Are Victims of, or Witness, Violations of Labor Rights

Noncitizen workers who are victims of, or witnesses to, violations of labor rights can now access a “streamlined and expedited deferred action request process.” The Department of Homeland Security explained that deferred action “protects noncitizen workers from threats of immigration-related retaliation from the exploitive employers.” 

DHS Extends and Redesignates Syria for TPS, Announces Student Relief

The Department of Homeland Security is extending and redesignating Syria for Temporary Protected Status. DHS also announced Special Student Relief for F-1 nonimmigrant students whose country of citizenship is Syria. 

USCIS Announces New Process for Paying for Certain Benefit Requests by Mail or Remotely U.S. Citizenship and Immigration Services announced a new process for most applicants, petitioners, and requestors, and their attorneys and accredited representatives, to pay for certain benefit request forms by mail or remotely instead of in person at a field office. 

State Department Visa Bulletin

To view the February 2024 Visa Bulletin from the State Department: click here.

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