Welcome to the Garfinkel Immigration news roundup, where every month we will summarize and provide links to the latest stories impacting U.S. immigration.
Below is the December 2024 edition of the Garfinkel Immigration news roundup:
Election 2024: What employers need to know about worksite compliance during the second Trump administration
Donald Trump was declared the winner of the 2024 Presidential Election in early November.
During his first term in the White House, Trump’s immigration policies impacted all aspects of legal immigration including restrictions for entry into the U.S.; increased scrutiny on all classifications of employment-based, family-based, and humanitarian-based applications; and the implementation of additional requirements for certain visa types. Additionally, these initiatives also led to an uptick in I-9 inspections and other worksite audits.
While it is not yet clear what specific immigration policies Trump will pursue once he takes office on Jan. 20, 2025, his campaign messaging outlined his intent to take similar positions in his second term.
We spoke with Garfinkel Immigration Law Firm Senior Associate Attorney Nam Douglass about how employers can prepare for the potential increase in Form I-9 inspections and other worksite compliance-related enforcement policies that may be implemented during the second Trump term.
What to know about the Department of State’s recent update to the J-1 visa ‘Exchange Visitors Skills List’
The Department of State published a notice in the Federal Register in early December which updated the Exchange Visitors Skills List pertaining to certain J-1 Exchange Visitor visa holders.
Specifically, the “Skills List” is used to “determine whether an individual who has been admitted into the United States as a nonimmigrant exchange visitor, or who acquired such status, is subject to the two-year foreign residence requirement.” The list also contains a set of “countries designated by the Secretary of State as clearly requiring the services of persons engaged in certain fields of specialized knowledge or skills.”
In other words, J-1 visa holders from countries on the list are usually required to return to their nation of origin, or last residence, for two years after completing their J-1 program, unless a waiver is available to them. They can then apply for a different nonimmigrant visa or green card after the two-year waiting period. The two-year waiting period does not apply to foreign nationals who are from countries not recognized on the skills list.
The vast majority of J-1 visa holders are in the research, science, technology, medical and teaching fields, amongst others. As such, it is expected that researchers, professors, scientists and some tech workers will benefit from the update, along with their employers.
Learn more about the recent update to the J-1 visa “Exchange Visitors Skills List” here.
H-4 EAD processing delays expected beginning in early 2025: Key information and how to prepare
H-4 employment authorization document (EAD) approvals are expected to experience serious delays beginning in early 2025 because of the expiration of a Department of Homeland Security (DHS) settlement agreement.
Fast facts and information to know
— Historically, United States Citizenship and Immigration Services (USCIS) typically processed the Form I-765 and Form I-539 at the same time as the principal’s Form I-129. However, changes made during the Trump administration in 2019 led to the abandonment of that practice, wherein USCIS decoupled the I-539 and I-765 applications from the principal’s I-129 petition, leading to extensive processing times and backlogs.
— DHS agreed in a settlement resulting from the case Edakunni v. Mayorkas in 2022 to return to processing and adjudicating I-539 and I-765 applications together with the I-129 petition, which has served as a major benefit to H-4 spouses and their employers. Further, if the principal spouse’s I-129 petition was filed under the premium processing service, under this settlement, USCIS generally has honored the same expedited timeline for the I-539 and I-765.
— That settlement agreement in Edakunni v. Mayorkas is set to expire on January 18, 2025, and is not expected to be renewed by the incoming Trump administration, which will take office two days later. In that case the Form I-539 and the Form I-765 will revert back to not being processed together with the primary I-129 petition. This could therefore cause backlogs, delays in processing times (which could exceed six months or more), and the potential for lapses in work authorization for applicable H-4 spouses.
Find out more about the anticipated H-4 EAD processing delays here.
DHS releases final rule designed to ‘modernize and improve the efficiency’ of H-1B visa program
The Department of Homeland Security (DHS) released a final rule in mid-December aimed at modernizing and improving the efficiency of the H-1B visa program. The rule, which is 460 pages, is set to go into effect on Jan. 17, 2025, and “will add benefits and flexibilities, and improve integrity measures,” according to DHS.
Some highlights from the new final rule include:
— Codification of the department’s “deference” policy “when adjudicating a Form I-129, Petition for Nonimmigrant Worker involving the same parties and the same underlying facts.”
— Clarification and modification of the criteria used to define a “specialty occupation.”
— “Additional flexibilities” for nonprofit and government research organizations.
Learn more about the new final rule here.
FDI and why international companies are choosing the Charlotte region — With DEHN execs and immigration law expert (podcast)
Garfinkel Immigration Law Firm Managing Partner Hannah F. Little was featured on a recent episode of the Charlotte Business Journal’s “The Voice of Business in the Charlotte Region” podcast.
During the episode, Hannah and her fellow panelists from DEHN, Inc. discussed the significance of foreign direct investment in the Charlotte region, the future for international businesses in the area, the importance of diversity in the community, and more.
Listen to the full podcast episode here.
Colleges warn foreign students to get to campus before Trump takes office
This story, originally published in the New York Times, details the many schools which are “advising their international students to return to campus before President-elect Donald Trump is inaugurated on Jan. 20.”
“Colleges are also warning all students to prepare for possible delays at the border and in the processing of paperwork,” the story read. ‘Budget time ahead of the semester start, prior to the January Martin Luther King holiday,’ Harvard advised on its website for international students who have concerns.”
What to know about H-1B visas at the center of Musk-MAGA fight
This story from The Hill details the ongoing debate between President-elect Donald Trump’s advisors about H-1B visas.
“A simmering debate over work visas exploded over the last days of the year, exposing a rift over immigration among President-elect Trump’s closest supporters,” the story read.
The story continued: “Elon Musk and Vivek Ramaswamy — the incoming chiefs of Trump’s nascent ‘Department of Government Efficiency’ (DOGE) — took the mantle of H-1B defenders, largely arguing that the visa program allows U.S. companies to hire workers they need and can’t find in sufficient numbers within the country.”