Annual Limit Reached in the EB-3 and EW Categories

All legally available visas in the EB-3 (3rd preference) and EW (Other Workers) categories for FY 2024 have been issued.  Embassies and consulates should have been allocated enough numbers for all applicants which were scheduled by NVC for their initial interview during the month of August or September.  The fact that the annual limit has been reached means that those posts cannot request additional numbers which may have been required to process “comeback” cases from previous months. The Department of State characterizes this milestone as having facilitated travel including for healthcare workers, for example Schedule A Nurses.  Practically speaking, Schedule A Nurses likely contributed in large part to the demand for EB-3 Immigrant Visas causing the limit to be reached already.  Annual limits will reset on October 1, 2024 (start of FY 2025), at which time embassies and consulates, and USCIS may resume issuing EB-3 and EW visas to qualified applicants under the FY 2025 annual limits.

Charlie Oppenheim, Director of Visa Consulting at WR and retired Visa Chief of the Department of State, clarifies that the FY 2024 visa limit being reached won’t affect applicants who were scheduled for their initial August or September interviews at overseas posts. When the State Department set the final action dates for August and September, they allocated visa numbers for these applicants, so they should still receive their visas despite the limit being met.

However, for Adjustment of Status (AOS) applicants within the U.S., USCIS can only request a visa number after all processing is complete. Since the visa limit is reached, no numbers will be available until October 1st, when the new fiscal year begins. At that time, USCIS will automatically receive visa numbers for pending requests if the applicant’s priority date is current.  Check out Chatting with Charlie for more details. 

Impact: Employers relying on EB-3 and EW beneficiaries to arrive from overseas may face delaying start dates for candidates whose priority dates are otherwise current for the remainder of FY2024.  However, the positive news is that starting on October 1, 2024, immigrant visas and adjustment of status applicants can resume the process resulting in only a 1-month delay.

Green Card Pathway through Parole-In-Place Filing Opened on August 19th

USCIS is now accepting Parole-in-Place (PIP) applications.  This process benefits certain noncitizen spouses (and stepchildren) of US citizens who: have been continuously physically present in the US for 10+ years as of June 17, 2024; entered without inspection (EWI) or were otherwise not paroled into the US; and have no disqualifying criminal convictions. If paroled, these noncitizens receive a three-year parole grant, may apply for an Employment Authorization Document (EAD) and may apply for adjustment of status to lawful permanent residence within the US  Read more about the PIP Green Card Pathway at WR Immigration’s Newsfeed.

Impact: Certain EAD card holders may secure green card status eliminating future potential work authorization gaps and more people will be added to the workforce.

H-4 Spousal Work Authorization Upheld

On August 2, 2024, the US Court of Appeals for D.C. Circuit upheld a DHS regulation granting work authorization to certain H-4 visa holders (spouses of H-1B visa holders) in the case Save Jobs USA v. DHS.

Impact: This ruling ensures continued work authorization for qualifying H-4 visa holders, benefiting both immigrant families and US employers seeking skilled workers.

USCIS completed the second phase of its yearly H-1B visa lottery on August 5, 2024

The agency informed all applicants whose registrations were chosen in the 2nd round that they could submit their H-1B cap-subject petitions.  If your cases were not selected, Laura Bloniarz discusses H-1B Alternatives here.

Impact: Companies with selected H-1B beneficiaries should ensure to file H-1B cap petitions on or before November 7th 2024 and may begin to plan for next year’s H-1B lottery.

USCIS updated its policy on Ukrainian employees with parole

USCIS-approved re-paroled Ukrainian applicants should retrieve their electronic Form I-94 from the CBP I-94 Website. It serves as temporary proof of identity and employment authorization for up to 90 days if: 1) It’s unexpired; 2) Shows class of admission as “UHP”; 3) Has a most recent date of entry on or before Sept. 30, 2024.

Impact:  Onboarding managers should not create new E-Verify cases for re-paroled Ukrainian employees; Exception: Only create a case if the re-paroled individual is a newly hired employee.

Parole Process Paused for Cubans, Haitians, Nicaraguans, and Venezuelans

DHS has temporarily paused issuing Advance Travel Authorizations (ATAs) for new Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV) beneficiaries. This pause is due to an ongoing review of the US supporter application process. USCIS continues to accept Form I-134A. ATA processing will restart as soon as possible after the review concludes.

Impact: US employers may experience delays in onboarding new international hires who are CHNV beneficiaries.

OFLC Announces Upcoming Final Decommission of Permanent Online System

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has announced: The legacy Permanent (PERM) Online System will be fully decommissioned on December 1, 2024. It will be replaced by the Foreign Labor Application Gateway (FLAG) System. Employers and attorneys/agents should monitor their email for correspondence about pending applications. Many employers have sought to avoid PERM due to extensive backlogs.  National Interest Waivers, as an alternative, are broken down by Kimberly Robidoux and Miki Matrician here.

Impact:  Immigration Managers should expect to engage DOL via the FLAG platform instead of the legacy OFLC platform moving forward.

New edition of Form I-9, Employment Eligibility Verification

Employers should use the 08/01/23 edition of Form I-9. This edition will have one of two expiration dates: 07/31/2026 or 05/31/2027. Starting Aug. 1, 2026, employers should use the Form I-9 version with the 05/31/2027 expiration date.

Impact: There is no practical difference between the new version and the 8/01/23 version but employers should ensure that the appropriate version is used.

WR invites you to attend a webinar: “US Immigration Program Management & Compliance Planning Workshop with WR Immigration”.

• Date: Thursday, September 19, 2024.
• Time: 10am PT / 1pm ET / 6pm BST
• Speakers: Miki Kawashima Matrician, Dan Maranci, and Kimberley (Best) Robidoux from WR Immigration.
• Key topics: Results from immigration program management and I-9 policies benchmarking surveys, Q&A session.
• Who can benefit from the webinar: HR professionals, GMJ Ambassadors interested in US immigration compliance and program management.

Link to register here: Webinar registration