New USCIS Guidance for O-1’s in the AI and Tech Fields

On January 8, 2025, United States Citizenship and Immigration Services (“USCIS”) released new guidance in its policy manual clarifying how the agency assesses evidence for O-1 visa eligibility for individuals with extraordinary ability. The O-1 visa is designed for individuals with extraordinary abilities in the fields of science, arts, education, business, or athletics, as well as those who have achieved notable success in the motion picture or television industry, with recognition at a national or international level. The updates include detailed examples from evolving industries, particularly technology and creative sectors, recognizing the changing landscape of work and innovation, thereby allowing individuals in fields like artificial intelligence, digital media, and other emerging areas to better demonstrate their impact.

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The H-1B Visa Program is Dividing MAGA

Elon Musk and Vivek Ramaswamy, who until a few days ago were co-leaders of President-elect Trump’s newly created Department of Government Efficiency (“DOGE”) recently ruffled feathers amongst Trump’s MAGA supporters when Ramaswamy and Musk tweeted their support for the H1B program. In a surprising turn of events after having moved to limit H-1Bs during his first term, Trump responded by applauding the program, noting “I have many H-1B visas on my properties. I've been a believer in H-1B. I have used it many times. It's a great program.”

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DHS Publishes H-1B Modernization Final Rule to Improve Program Integrity and Efficiency

On December 18, 2024, the Department of Homeland Security (“DHS”) published a Final rule in the Federal Register modernizing and increasing the efficiency of the H-1B program, adding benefits and flexibilities, and improving integrity measures. This rule will become effective January 17, 2025.

The final rule imposes changes to the H-1B program and codifies a number of existing rules. We must point out that the final rule is quite lengthy; therefore, our summary does not cover all of the changes. We have outlined a few of the most notable updates and changes below which we feel may be of most interest to our community.

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The New York Times: “Colleges Warn Foreign Students to Get to Campus Before Trump Takes Office”

Ahead of President Trump’s upcoming inauguration on January 20, 2025, some universities, including Harvard, USC, and Cornell are advising their international student body to prepare to return to campus from their winter breaks before Trump is sworn in to office. The warnings are a result of Trump’s expressed desire to reimpose a travel ban previously instituted during his first term as President and ended by President Biden when he took office.

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DHS Permanently Increases Automatic Extension of Certain Employment Authorization Documents for Certain Applicants

On December 10, 2024, The Department of Homeland Security (“DHS”) announced a permanent increase in the automatic extension period for employment authorization documents (“EADs”) up to 540-days from the current 180-days period for certain applicants who timely and properly filed their Form I-765 applications for work authorization.

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USCIS Reaches Fiscal Year 2025 H-1B CAP

United States Citizenship and Immigration Services (“USCIS”) announced on December 2, 2024, they had reached the H-1B Cap for fiscal year 2025. The Service reported having received enough petitions to reach the congressionally mandated limits for the H-1B visa regular cap, as well as the advanced degree exemption (master’s cap) for FY2025. USCIS will be sending non-selection notices to registrants through their online accounts “over the next few days.” 

Employers submitted registrations for 442,000 unique beneficiaries during FY 2025 H-1B cap registration period. USCIS went on to conduct two lottery selections, one in March 2024 and another in August 2024. For those not selected, remember there may still be hope.

Diversity Visa Lottery for Fiscal Year 2026 (DV-2026)

It’s that time of year again! The Diversity Visa Lottery for fiscal year 2026 (“DV-2026”) is live and has begun accepting registrations effective Wednesday, October 2, 2024, at 12:00 noon (EDT). The registration period for the DV Lottery, as it’s commonly referred to, concludes on Tuesday, November 5, 2024 at 12:00 noon (EST). Entries are only accepted electronically--paper entries through the US Postal Service will not be accepted. Keep in mind that the “law allows only one entry per person during each registration period.” Submitting multiple applications will result in disqualification, not better odds, and, yes, “the Department of State uses sophisticated technology to detect multiple entries.” It is recommended that foreign nationals not wait until the end of the period to apply as heavy demand could cause delays on the website.

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