This week is a special one for me and my colleagues as we have reached a major milestone in our work to develop the first comprehensive AI immigration law research product. We announced at the AILA Technology Summit in San Francisco on October 26th that the technical work on Gen, our AI sandbox and legal research tool for immigration lawyers, has been completed and we are now adding content and will start onboarding our preview users starting right away.
What is Gen? It’s built using OpenAI’s GPT-4 large language model and is a powerful legal research tool that contains not just all of the primary law, but it will also have a vast array of treatises and practice materials from the American Immigration Lawyers Association, our content collaborator on the project. Gen users will be able to ask immigration questions on nearly any topic and the tool will query just our law library and provide citations and links to the original source material. It will also be set on a low “temperature”. All of that means we will significantly reduce the chances of the software providing incorrect answers and we’ll empower users to double check the validity of the answers they do get.
Gen will also allow users to upload their own documents and ask questions or otherwise develop prompts to query their files. And it will contain a “private GPT” functionality that will allow users to also prompt the vast OpenAI data set (millions of combed web pages) and do so in a way that is secure and private, thus meeting legal ethics requirements.
Finally, Gen can summarize documents and also translate them, tools that immigration lawyers should find quite helpful. This week, for example, we’ve had important proposed rules released regarding the J-1 and H-1B programs. The H-1B rule is over 250 pages and I was able to get a bullet pointed summary in a few minutes that was 1/10th the size of the original document and quickly gave me an understanding of what changes were proposed. And being able to get summaries in English of foreign language documents will help lawyers decide which documents should get certified translations.
Speaking of the H-1B rule, it was very satisfactory to see the agency propose a solution to the problem of people gaming their odds in the H-1B lottery by having multiple employers file registrations on their behalf. A person who finds ten employers to sponsor them for an H-1B would increase his or her odds by 1000%. IMMpact Litigation, which is comprised of Siskind Susser and three other law firms, sued over this very issue a year ago. USCIS escaped liability with a promise to the judge that they would fix the problem. And they essentially have and in a way I have specifically been calling for almost weekly on our IMMpact weekly livestream. That involves “flipping the algorithm” and making the H-1B lottery a beneficiary lottery. Multiple employers can still file registrations on behalf of the same worker, but the person is only counted once and will have the same odds as any other person. If the person is selected, then the winner would choose which registered employer they wish to pursue the visa petition. That has the added advantage of increasing the worker’s bargaining power (and, in turn, US workers’ who will benefit from those wage negotiations).
Finally, Siskind Susser folks have been speaking on so many panels over the last few weeks that it’s not possible to list them here. But you can find about where we’ve been presenting on our Siskind Susser Facebook and LinkedIn pages.
As always, we welcome readers to contact our lawyers if they need a consultation to discuss an immigration matter. Please go to www.visalaw.com/consultation if you need an appointment.
Ask Visa Law
Written by Robby Rubin
What is the significance of the new proposed rules published by DHS on October 23rd about H-1Bs?
The Department of Homeland Security (DHS) published a notice of proposed rulemaking to address a number of updates to the H-1B program. The main focus of these changes are to: 1) modernize and clarify the regulatory definition and criteria for what is considered a “specialty occupation”; 2) create more flexibility regarding what type of employers can be considered cap-exempt; and 3) address the issue of fraud in the lottery and enhancing program integrity.
- Modernization and Efficiencies— Currently, the regulations define a “specialty occupation” as an occupation that requires a “Theoretical and practical application of a body of highly specialized knowledge; and an occupation for which the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) is “normally” required as a minimum for entry into the occupation in the United States.” The proposed rulemaking offers the following definition of the word “normally” as applied in the H-1B context:
“For purposes of the criteria in this provision, “normally” means “conforming to a type, standard, or regular pattern” and is “characterized by that which is considered usual, typical, common, or routine.” The proposed regulation also clarifies that “[n]ormally does not mean always.” For these purposes, there is no significant difference between the synonyms “normal,” “usual,” “typical,” “common,” or “routine.” These synonyms illustrate that a description of an occupation that uses a synonym for the word “normally” in describing whether a bachelor’s or higher degree is required for the occupation can support a finding that a degree is “normally” required. By the same token, other synonyms for the word “normally” that are not listed in proposed 8 CFR 214.2(h)(4)(iii)(A)(5), such as “mostly” or “frequently,” also can support a finding that a degree is “normally” required. This proposed change clarifies that the petitioner does not have to establish that the bachelor’s degree in a specific specialty or its equivalent is always a minimum requirement for entry into the occupation in the United States.”
The proposed rule also would require that the degree must be directly related to the position’s duties, that a position is not a specialty occupation if attainment of general degrees such as “liberal arts” is sufficient to qualify for the position, and that a position may allow a range of degrees or apply multiple bodies of specialized knowledge, provided that they are all directly related to the position.
- Cap Exemptions—Currently the regulations state that an H-1B worker is exempt from the 65,000 cap if they are employed by: (1) an institution of higher education; (2) a nonprofit entity related to or affiliated with such an institution; (3) a nonprofit research organization; or (4) a governmental research organization. The current rule also states that an H-1B worker can be considered cap exempt even if not working directly for the qualifying organization if the majority of their time is spent working performing job duties at a qualifying organization, AND the worker’s duties will directly and predominantly further the essential purpose, mission, objectives, or functions of the qualifying organization.
- The new rule proposes to replace the word majority of the worker’s time with “at least half of the worker’s time,” and to replace directly and predominantly further the essential purpose, mission, objectives, or functions of the qualifying organization with “directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions” of the qualifying organization.
- Address Fraud and the Integrity of the Lottery System—DHS published the employer registration data in the table below to illustrate the issue of employers and beneficiaries possibly gaming the lottery system.
This data shows a concerning trend in beneficiaries with multiple registrations. While there is nothing inherently wrong with an H-1B worker seeking employment with multiple potential H-1B employers, the data indicates that the increase in beneficiaries with multiple registrations is cause for concern.
“DHS is concerned that individuals with large numbers of registrations submitted on their behalf are potentially misusing the registration system to increase their chances of selection and that the registrations submitted may not represent legitimate job offers. The possible effect of this increase in multiple registrations, which potentially do not represent legitimate job offers, is to skew the selection process. Beneficiaries who have multiple registrations submitted on their behalf have a significantly higher chance of selection. At the same time, an individual’s chance of selection with a single registration is greatly reduced, as the number of beneficiaries with multiple registrations increases.”
To address this issue, DHS proposes to shift the lottery selection process from selecting employer registrations, to selecting by unique beneficiaries. Under this proposal, employers would continue submitting registrations on behalf of beneficiaries, and beneficiaries would continue to be able to have multiple registrations filed on their behalf. However, instead of making lottery selections by registration (which increases the chances of beneficiaries being selected that have multiple registrations) the lottery will select from the pool of unique beneficiaries. Meaning that having multiple registrations provides a beneficiary no advantage in terms of their chances of selection. If a beneficiary is selected, each registrant would be notified, and the beneficiary would be allowed to choose which registrant to file a petition on their behalf.
In the News From ABIL
Shortly before the deadline on September 30, 2023, Congress passed and President Biden signed H.R. 5860, a short-term funding bill to keep the federal government funded for 45 days. Also, the Department of Homeland Security released a fact sheet on the impact of a potential shutdown on its workforce.
The Department of Homeland Security (DHS) has released an advance copy of its notice extending the designation of Venezuela for Temporary Protected Status (TPS) until September 10, 2025. DHS is also redesignating Venezuela for TPS. DHS said re-registrants should timely re-register during the registration period and not wait until their Employment Authorization Documents expire.
U.S. Citizenship and Immigration Services is increasing the maximum validity period to five years for initial and renewal Employment Authorization Documents (EADs) for certain noncitizens who are employment-authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, and granted asylum, as well as recipients of withholding of removal. USCIS is also increasing the maximum validity period to five years for initial and renewal EADs for certain noncitizens who must apply for employment authorization.
U.S. Citizenship and Immigration Services (USCIS) is exempting the biometric services fee for Form I-539, Application to Extend/Change Nonimmigrant Status. Beginning October 1, 2023, applicants do not need to pay the $85 biometric services fee if their applications are postmarked October 1 or later.
U.S. Citizenship and Immigration Services is extending and expanding filing fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2024.
The online registration period for the DV-2025 diversity visa program begins on Wednesday, October 4, 2023, at 12 noon ET, and concludes on Tuesday, November 7, 2023, at 12 noon ET. DV 2025 instructions and tips are now available.
Eligible Israeli citizens, nationals, and passport holders from Israel may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for a period of 90 days or less for business or pleasure without first obtaining a B-1/B-2 nonimmigrant visa stamp in their passports.
Comments will be accepted until October 27, 2023, on proposed revisions to Form I-140, Immigrant Petition for Alien Workers.
Comments will be accepted until October 27, 2023, on proposed revisions to Trusted Traveler Programs and the U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card.
There has been much speculation that the federal government is headed for a shutdown starting October 1, 2023. A shutdown would cause many adverse immigration impacts.
U.S. Citizenship and Immigration Services issued an update about the partial stay of the recent DACA decision by a Texas federal judge.
The Department of Homeland Security announced a proposed rule to strengthen protections for temporary workers under the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs.
The U.S. Citizenship and Immigration Services Ombudsman’s Office released a tip sheet for F-1 international students on how to avoid delays with adjudications on Form I-765, Applications for Employment Authorization.
Immigration and Customs Enforcement recently updated Form I-983 to remove the requirement for wet signatures.
The Office of Management and Budget received a proposed rule from the Department of Homeland Security to amend regulations governing H-1B specialty occupation workers and F-1 international students.
A federal court has ordered a farm labor contractor to pay over $1 million in back wages and penalties for H-2A violations.
The Department of Homeland Security announced a series of actions to increase enforcement along the U.S.-Mexico border and to accelerate work authorization processing.
The Justice Department announced a settlement with United Parcel Service (UPS) following the department’s determination that UPS violated the Immigration and Nationality Act by discriminating against a lawful permanent resident.
Secretary Mayorkas of DHS announced the extension and redesignation of Venezuela for Temporary Protected Status for 18 months.
Secretary Mayorkas of DHS announced the extension and redesignation of Afghanistan for Temporary Protected Status for 18 months, from November 21, 2023, to May 20, 2025.
The October 2023 Visa Bulletin shows no significant movement, with instructions to use Chart B.
U.S. Citizenship and Immigration Services announced on September 12, 2023, that it is updating the USCIS Policy Manual to clarify the types of evidence the agency will evaluate to determine eligibility.
While expressing sympathy for DACA, Judge Hanen declared the Biden Administration’s revised version of the program illegal.
U.S. Department of Labor proposed a new rule intended to strengthen protections for H-2A farm workers.
Over 100 House Democrats issued a letter to President Biden and DHS Secretary Alejandro Mayorkas asking for executive action to be taken to support immigrants and asylum-seekers in getting work authorization.
USCIS announced those who have TPS (or a pending application) are eligible to extend their EADs for up to 540 days past their expiration date.
The Health and Human Services Centers for Medicare and Medicaid Services published a notice of a new data-matching program that will allow government agencies to share personally identifiable information of HHS applicants and enrollees.
The Department of State issued a final rule to discard public charge restrictions made in a 2019 rule.
USCIS Provides I-9 and E-Verify Guidance for People Impacted by the 2023 Hawaii Wildfire U.S. Citizenship and Immigration Services issued guidance regarding I-9 and E-Verify compliance requirements for individuals and companies affected by the recent wildfire in Hawaii.
On September 30, 2023, U.S. Citizenship and Immigration Services ended its temporary suspension of biometrics submission for people extending or changing their nonimmigrant status.
The Department of State announced the end of COVID-era exceptions and has resumed a 12-month validity period for fee payments.
The Department of Labor released a new version of the O*NET database.
Members of Congress recently sent a letter to the Secretaries of State and Homeland Security requesting executive action to provide relief to certain highly skilled workers.
The State Department’s Bureau of Consular Affairs announced it is developing and testing a digital visa authorization to replace paper visas.
U.S. Citizenship and Immigration Services (USCIS) reminded employers about the November 1, 2023, deadline for using the updated I-9 form with the 08/01/2023 edition date, and the Spanish version.
On October 3, 2023, the Department of State published instructions and eligibility requirements for the Diversity Visa (DV) program for fiscal year 2025 (DV-2025). The online registration period for the DV-2025 diversity visa program concludes on Tuesday, November 7, 2023, at 12 noon ET.
The Department of State announced that its regulation governing the public charge grounds of visa ineligibility has been restored to the version that was in place before October 11, 2019.
The Department of Homeland Security announced that it “will resume direct repatriations of Venezuelan nationals who cross our border unlawfully and do not establish a legal basis to remain.”
The Department of Homeland Security will extend and redesignate Cameroon for Temporary Protected Status for 18 months, beginning on December 8, 2023, and ending on June 7, 2025.
The Department of State announced that U.S. passport processing times have fluctuated several times in 2023. As of October 2, 2023, routine applications were being processed in eight to 11 weeks, and expedited applications in five to seven weeks, not including mailing time.
U.S. Citizenship and Immigration Services has received enough petitions to reach the cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2024. October 11, 2023, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2024.
U.S. Citizenship and Immigration Services (USCIS) provided additional guidance on its interpretation of changes to the EB-5 program made by the EB-5 Reform and Integrity Act of 2022, specifically the required investment timeframe and how USCIS treats investors who are associated with a terminated regional center.
The Department of State’s Visa Bulletin for November 2023 includes a reminder that the non-minister special immigrant program expires on November 17, 2023.
U.S. Citizenship and Immigration Services issued policy guidance reflecting the extension of the exemption from the temporary need requirement for petitions for temporary nonagricultural H-2B nonimmigrant workers on Guam and in the Commonwealth of the Northern Mariana Islands through December 30, 2024.
Effective December 8, 2023, through June 7, 2025, Cameroonians in lawful F-1 nonimmigrant student status may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant student status.
U.S. Citizenship and Immigration Services (USCIS) has launched a new Enterprise Change of Address (E-COA) self-service tool to allow those with pending applications, petitions, or requests to update their addresses with USCIS online.
The Department of State intends to resume the renewal of H-1B nonimmigrant visas in the United States for certain applicants, beginning with a pilot program in early 2024, and has sent its proposal to the Office of Management and Budget for review.
The Department of Homeland Security plans to amend its H-1B regulations “governing H–1B specialty occupation workers to modernize and improve the efficiency of the H–1B program, add benefits and flexibilities, and improve integrity measures.”
The Department of Homeland Security announced the start of visa-free travel for short-term visits to the United States for eligible Israeli citizens and nationals following Israel’s admission into the Visa Waiver Program. Eligible Israeli citizens and nationals can apply for authorization to travel to the United States through the U.S. Customs and Border Protection’s Electronic System for Travel Authorization.
U.S. Citizenship and Immigration Services (USCIS) issued policy guidance to clarify that a sole proprietorship may not file an L-1 petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner. The update also clarifies guidance regarding blanket L petitions.
The Department of Homeland Security announced a new family reunification parole process for certain nationals of Ecuador that also allows for work authorization.
U.S. Citizenship and Immigration Services announced that certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring work authorization and/or employment authorization documents while their renewal applications are pending.
Beginning November 1, 2023, all H-2A, H-2B, Commonwealth of the Northern Mariana Islands (CNMI)-related Form I-129 petitions, Form I-129CW petitions, and CNMI-related Form I-539 applications must be filed directly with the Texas Service Center.
U.S. Citizenship and Immigration Services is updating the USCIS Policy Manual with new guidance on the EB-5 Regional Center Program and new content on regional center designation and obligations, project applications, and direct and third-party promoters.
The update adds information about how U.S. Citizenship and Immigration Services determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how USCIS considers situations in which it is effectively impossible for the benefit requestor to satisfy the requirement. It also corrects an omission from existing Policy Manual content concerning one of the grounds for waiving the foreign residence requirement for certain foreign medical graduates.
U.S. Citizenship and Immigration Services is allowing 30 additional days for public comments on several information collection notices related to E-Verify.
The Citizenship and Immigration Services (CIS) Ombudsman emailed a reminder to employers to use the revised Form I-9, Employment Eligibility Verification, with the edition date 08/01/23, starting November 1, 2023.
State Department Visa Bulletin
To view the November 2023 Visa Bulletin from the State Department: click here.