I-9 Handbook Updated to Reflect Cap-Gap Extension for Eligible F-1 Students
As of March 26, 2025, the U.S. Citizenship and Immigration Services (USCIS) has updated the M-274 Handbook for Employers, to reflect the Dec. 18, 2024, Department of Homeland Security final rule automatically extending the duration of status and employment authorization granted under 8 CFR §274a.12(c)(3)(i)(B) or (C) for F-1 students who are the beneficiaries of H-1B petitions requesting a change of status.
The handbook now states students who are the beneficiaries of an H-1B petition who request a change of status from F-1 status to H-1B status may be eligible for a cap-gap extension of status and employment authorization until April 1 of the fiscal year or until the validity start date of an approved H-1B whichever is earlier.
If a company employs an F-1 student on optional practical training (OPT) status and has filed an H-1B petition for that student in a timely manner, the updated handbook states the employee may be eligible to continue working beyond the expiration date on their OPT Employment Authorization Document (EAD) while awaiting the start date of the approved or pending H-1B petition.
Types of Cap-Gap Extensions
These are the relevant cap-gap extensions, according to the updated handbook:
F-1 Status Extension (without optional practical training
If a student in F-1 status with no OPT has an H-1B petition filed, they will receive a cap-gap extension of their F-1 status only, with H-1B status starting on the approved petition’s validity date.
F-1 Status and OPT Extension
If a student in F-1 status with OPT has an H-1B petition filed, they will receive a cap-gap extension of both F-1 status and OPT. They can work under OPT until April 1st or the H-1B validity date, whichever is earlier.
Cap-Gap Extensions and the I-9 Form
For an eligible F-1 students to receive an automatic EAD extension, the handbook says employers must:
Timely file a petition to change the student’s status to H-1B
Request an employment start date in the relevant fiscal year
An expired EAD, along with a relevant USCIS notice showing the above requirements, is considered a valid, unexpired EAD for Section 2, List A purposes on Form I-9. This automatic extension ends if the H-1B petition is rejected, denied, revoked, or withdrawn pursuant to 8 CFR 214.2(f)(5)(vi)(B).
Travel Advisory for Non-U.S. Citizens: What You Need to Know
As we approach the busy spring and summer travel season, it is important to keep in mind factors that could affect non-U.S. citizens, including visa holders and legal permanent residents’ return to the U.S. after international travel.
Consular Updates
Whether travel is required to obtain a visa, maintain operations abroad, or for personal pleasure, all international travel should be planned with careful consideration and attention to these updates.
Revision of Visa Interview Waiver (dropbox) eligibility requirements: Starting Feb. 18, 2025, a key change is that individuals must have held a visa in the same category that expired less than 12 months before their new application to be eligible for the dropbox option.
Potential delays and longer visa processing times: U.S. consulates abroad will likely face higher demand and fewer locations may be available for processing.
Consular Refusals: Despite U.S. Citizenship and Immigration Services (USCIS) approval, a consular officer has the discretion to deny a visa and return the case to USCIS for re-adjudication.
Documents to Carry While Traveling
Check to ensure you have these documents:
Check passport expiration dates prior to any international travel. Your passport should be valid for at least six months beyond your authorized period of stay in the United States. If not, renew your passport prior to travel.
Ensure that your visa stamp is valid prior to any international travel. If your visa stamp has expired, make appropriate plans to obtain a valid visa stamp.
Please be sure to carry the following documents with you before embarking on an international trip:
Valid passport (valid for six months beyond trip itinerary) with a valid visa stamp
Original approval notice issued by U.S. Citizenship and Immigration Services (USCIS).
For example: I-797 Notice of Approval
For lawful permanent residents: Green Card (Form I-551) or advance parole if your green card is pending
Recent signed employment verification letter
Two or three recent paystubs
Valid license for driving overseas and for use as a second form of photo ID
Medications in their original packages. Bring only the amount of medication you will need. Prescription medications should be under the traveler’s name.
Takeaways
In light of these new updates, non-U.S. citizens should consider the following:
Booking visa appointments in advance of your trip, depending on your eligibility (dropbox or in-person), as slots fill up quickly
Consider using “third-country national processing” at U.S. consulates other than your home country. Confirm with U.S. consulate prior to your travel and visa appointment.
Seek any necessary approval for international travel from your employer and notify immigration legal counsel before and after international travel
Contingency planning in place for potential visa delays
Flexible airline ticket in case of unexpected travel bans or other sudden developments
Ensure you have an emergency contact in the U.S. who can assist and act on your behalf if needed, whether an employer or another individual
Before traveling internationally, review your immigration status with your employer and legal counsel to assess any impact on your non-immigrant status or green card processing. Upon arrival, check your I-94 status on the CBP website to confirm your class of admission and expiration date, and send the updated I-94 and visa stamp to your employer and legal counsel. Additionally, note that all electronic devices and accounts may be subject to search upon re-entry to the U.S.
Employers and employees alike should approach planned travel outside of the U.S. with caution and care.
H-1B Public Access Files: Are You in Compliance?
The H-1B visa classification provides a pathway for U.S. employers to sponsor foreign national employees to work in a specialized knowledge position in the U.S. Employers that have experience with the H-1B visa classification know some of the regulatory hurdles that accompany this visa classification, including the requirement to pay the higher of the prevailing wage or actual wage. However, some employers may not know the H-1B visa classification also requires employers to create and maintain a Public Access File for each H-1B employee.
An employer’s responsibilities as an employer of an H-1B nonimmigrant worker are federal law and U.S. Department of Labor (DOL) regulations require the employer to obtain a Labor Condition Application (LCA) and maintain a public access file, per these requirements:
Notice Requirement
Notice of the LCA must be posted, or if the position falls under a collective bargaining, agreement must be provided to the union, before filing the LCA. The notice may be the LCA itself or a document of sufficient size and visibility that indicates: H-1Bs are being sought; the number of H-1Bs being sought; the occupational classification; the wages offered; the period of employment; the location(s) of employment; and that the LCA is available for public inspection. The notice also shall state where complaints may be filed.
The notice must be posted “in at least two conspicuous locations at each place of employment” for a total of 10 consecutive days on or within 30 days before the LCA is filed. An employer may provide an electronic copy of the notice to employees in the same occupational classification through any means it normally communicates with employees to include home page, electronic bulletin board, or email. If email, it need only be sent once. Other electronic notices should be posted for 10 consecutive days.
Labor Condition Application Process
The employer must file an LCA with the DOL containing attestations that state the following:
a) The employer is offering and will offer during the H-1B nonimmigrant’s period of authorized employment the greater of either the actual or prevailing wage level for the position offered
b) The employer will provide working conditions for the H-1B nonimmigrant that will not adversely affect the working conditions of workers similarly employed (conditions include benefits which are to be offered to the nonimmigrant on the same basis and same criteria as other U.S. workers)
c) There is not a strike or lockout in the course of a labor dispute in the position offered at the place of employment
d) The employer has provided or will provide notice of this LCA filing to the bargaining representative of the employer’s employees or, if there is no bargaining representative, then to the affected workers either through electronic posting or by posting in a conspicuous location at the place of employment
e) The employer has determined its status concerning H-1B dependency
f) The employer has provided the information about the occupation in the LCA form.
An employer is required to provide a signed copy of the certified LCA to the H-1B employee no later than the date the employee reports for work.
Public Access File
Within one day of filing the LCA, an employer must make available a Public Access File for public inspection to interested parties. Any member of the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning, or taking photographs. The public access file must be available either at the employer’s principal place of business or at the work location. The Public Access File must include the following documents:
a) Labor Condition Application: A signed copy of the filed LCA must be kept in the H-1B employee’s Public Access File
b) LCA cover pages with instructions: Form ETA 9035CP must be retained in the Public Access File
c) Actual wage statement: A full, clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the same position as the H-1B employee. The DOL defines “actual wage” as the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question. Payroll records are not required for public display but must be retained.
d) Prevailing wage statement: A copy of the documentation used to establish the prevailing wage. This may be a general description of the source and methodology, although wage data must be retained.
e) Notice: A copy of the notice provided to the union or employees
f) Benefits summary: A summary of benefits offered to U.S. workers in the same occupational classification as the H-1B employee. If there are any differentiation in benefits, a statement as to how differentiation in benefits is determined.
g) List of entities. Where the employer utilizes the definition of “single employer” in the Internal Revenue Code (IRC), a list of any entities included as part of the single employer in making H-1B determinations
h) Merger, acquisition, or corporate change of employer: In the event of an organizational change, the public inspection file must also contain 1) A sworn statement by a successor entity accepting all liabilities of predecessor entity, 2) Affected LCA numbers(s) and effective dates(s), 3) Description of successor entity’s actual wage system, and 4) Successor entity’s employer identification number
i) Exemptions: If an organization is deemed to be H-1B dependent or a willful violator, and it indicates that an employee is exempt under 20 CFR §655.737, a list of exempt H-1B employees
j) Recruitment: If an organization is deemed to be H-1B dependent or a willful violator, a summary of recruitment methods used and the time frames of recruitment of U.S. workers
Retention Requirements
The records in the Public Access File must be kept either at the employer’s principal place of business in the U.S. or at the place of employment. The employer shall retain the records for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no nonimmigrants were employed under the LCA, one year from the date the labor condition application expired or was withdrawn. If a complaint is filed, the Public Access File must be kept until the complaint is resolved.
Notably, DOL will retain an LCA for five years from the certification or other final action date.
Payroll records are not required to be maintained in the Public Access File. However, they must be retained for the retention period but no less than three years in the event of a DOL inspection.
Failure to comply with the Public Access File requirements may result in penalties, fines, or other adverse actions. It is essential for employers to maintain accurate and up-to-date Public Access Files to demonstrate compliance with the H-1B regulations.
ETIAS 2026? Start of European Travel Authorization System Delayed Again
Implementation of the European Travel Information and Authorization System (ETIAS) has been delayed again. Initially expected to be operational in 2022, ETIAS is now scheduled to start in the last quarter of 2026. This delay allows more time for the Entry/Exit System (EES) to be fully implemented, which is expected to become operational in October 2025.
ETIAS will be a requirement for non-EU nationals from visa-exempt countries, including the United States, for short-term stays in the Schengen Area.
ETIAS is not a visa. Americans will maintain their visa-free privileges but will need to obtain the new travel authorization. This applies to U.S. visitors traveling to Europe for short stays of up to 90 days per 180-day period for any of the following purposes:
Tourism
Leisure activities
Business
Health and medical treatment
Transit en route to a third-country destination (only required if leaving the airport’s international transit area)
U.S. citizens will need to provide the following to register:
Valid Passport: U.S. passport must be valid for at least three months after planned departure from the Schengen Area
Payment Method: A debit or credit card to pay the application fee, which is slated to be approximately $8
Email Address: To receive approved ETIAS authorization
Additionally, travelers will need to fill out an online application form with:
Personal Information: Full name, date and place of birth, gender, and contact details
Passport Details: Passport number, issue date, and expiry date
Travel Plans: Intended first entry country and travel dates
Security Questions: Information about health, criminal record, and previous travel issues
The application process is designed to be quick and straightforward, with most approvals granted within minutes.
ETIAS will not be mandatory for U.S. citizens right away. There will be a six-month transitional period followed by a six-month grace period. During the transitional period, Americans will be allowed to cross the external border without ETIAS. They must meet all other entry conditions. During the grace period, Americans will be allowed to cross the external border without ETIAS only if it is the first time they are entering since the end of the transitional period.
ETIAS is valid for up to three years and for multiple trips to Europe. ETIAS authorizations validated during the transitional or grace periods can be used for trips once it becomes mandatory.
Backlogged Priests: Resolving the Bipartisian Immigration Issue
The Religious Workforce Protection Act is a bipartisan legislative initiative introduced on April 8, 2025, by U.S. Senators Susan Collins (R-Maine), Tim Kaine (D-Virginia), and Jim Risch (R-Idaho). This bill aims to address significant challenges faced by foreign-born religious workers in the United States, particularly those hindered by visa backlogs, by proposing extensions to the R-1 nonimmigrant visa status and facilitating reentry for affected individuals.
Background: The Role of Foreign-Born Religious Workers & the Diocese of Paterson
Religious organizations across the U.S. rely heavily on foreign-born clergy and religious workers to serve their communities. For instance, in Idaho, nearly 25% of clergy members are foreign-born, highlighting their integral role in maintaining the vitality of faith communities. These individuals often enter the U.S. on R-1 visas, designated for nonimmigrant religious workers, with the intention of eventually obtaining permanent residency through the EB-4 visa category.
Diocese of Paterson v. U.S. Department of State Takes a Stand
In August 2024, the Diocese of Paterson, New Jersey, along with five of its priests, initiated a lawsuit against the U.S. Department of State, the Department of Homeland Security, and the U.S. Citizenship and Immigration Services. This legal action challenges recent modifications to the EB-4 visa program, which have introduced significant obstacles for foreign-born religious workers seeking permanent residency in the United States.
Background of the Lawsuit
The EB-4 visa category, designated for special immigrants including religious workers, has undergone procedural changes that have led to substantial backlogs. Specifically, in March 2023, the U.S. government integrated applicants from certain countries, such as Guatemala, Honduras, and El Salvador, into the same visa queue as religious workers. This integration, coupled with the existing annual cap of 10,000 green cards for the EB-4 category, has resulted in prolonged waiting periods for religious workers seeking permanent residency.
The Diocese of Paterson, serving approximately 400,000 Catholics across 107 parishes, relies heavily on foreign-born clergy to address the shortage of domestic vocations. The diocese asserts that the recent visa changes jeopardize the ability of these priests to continue their ministry, potentially leading to their abrupt departure from the U.S. The lawsuit emphasizes that such departures would disrupt the spiritual guidance provided to thousands of parishioners.
Implications for Religious Communities
The procedural changes have broader implications beyond the Diocese of Paterson. Religious organizations nationwide, including the U.S. Conference of Catholic Bishops, have expressed concerns about the sustainability of their ministries under the current visa constraints. Bishop Mark Seitz of El Paso highlighted the disruptive nature of these changes, noting that priests facing visa expirations are compelled to leave their congregations, leaving communities without essential spiritual leadership.
Legal Arguments Presented
The lawsuit, brought by Attorney Raymond G. Lahoud of Lahoud Law Group, P.C., contends that the U.S. government’s implementation of the visa changes violated the Administrative Procedure Act by not providing appropriate notice and opportunity for public comment. It further argues that the alterations infringe upon the religious freedoms of the affected clergy and their congregations by hindering their ability to practice their faith and maintain consistent spiritual leadership.
As of April 2025, the lawsuit remains pending in the U.S. District Court in Newark, New Jersey. This legal action underscores the ongoing challenges faced by religious institutions in navigating immigration policies that directly impact their operations and the well-being of their communities. The outcome of this case may set a precedent for how similar situations are addressed in the future, highlighting the critical intersection of immigration policy and religious practice in the United States.
Provisions of the Religious Workforce Protection Act
The Religious Workforce Protection Act introduces targeted measures to alleviate these challenges:
Extension of R-1 Visa Duration: The act grants the Secretary of Homeland Security the authority to extend R-1 nonimmigrant status beyond the current five-year limit for religious workers already in the U.S. This extension allows them to continue their service without interruption while their permanent residency applications are processed.
Reentry for Departed Religious Workers: Religious workers who were compelled to leave the U.S. due to visa expirations and processing delays would be permitted to reenter the country under this legislation, ensuring that faith communities can retain their essential personnel.
Limited Job Flexibility: The bill allows for limited job flexibility for religious workers awaiting decisions on their EB-4 applications. This provision ensures that these workers do not have to restart the lengthy permanent residence process due to changes in their employment, such as moving to a different parish or receiving a promotion.
Support from Religious Communities
The Diocese of Boise has expressed strong support for the act, emphasizing that the current visa constraints jeopardize the continuity of religious services across its vast territory. Bishop Peter F. Christensen noted that with only 79 priests serving the diocese, the forced departure of foreign-born clergy due to visa issues would create significant challenges.
Other religious organizations have also voiced their backing:
U.S. Conference of Catholic Bishops (USCCB): Bishop Mark J. Seitz of El Paso, chairman of the USCCB Committee on Migration, stated, “We applaud this bipartisan effort, which recognizes the importance of foreign-born religious workers in communities across our nation. Without them, many Americans would be left without the essential religious and social services they provide.”
National Association of Evangelicals: Galen Carey, vice president of government relations, remarked, “Religious communities unite and serve believers of multiple nationalities. It is important that our leaders have the freedom to serve across national boundaries, and that our churches have access to staff with the expertise they need.”
U.S. Council of Muslim Organizations (USCMO): Secretary General Oussama Jammal expressed, “This crucial legislation addresses the hardships faced by religious workers and institutions due to the EB-4 backlog, ensuring that faith communities across the nation can continue to thrive and serve.”
Hindu American Foundation: Managing Director Samir Kalra noted, “The Hindu American Foundation is proud to support the Religious Workforce Protection Act, a common sense solution to ensuring that nonimmigrant religious workers on R-1 visas can continue to stay in the U.S. and serve the spiritual needs of their respective religious communities.”
Legislative Outlook and Implications
The introduction of the Religious Workforce Protection Act reflects a bipartisan commitment to addressing the challenges faced by religious workers and the communities they serve. By facilitating uninterrupted service of religious workers, the act seeks to uphold the vitality of faith communities and ensure that congregations nationwide have access to consistent spiritual leadership. As the bill progresses through the legislative process, its potential impact on religious organizations and their ability to serve their communities remains a focal point for stakeholders across the nation.
Conclusion
The Religious Workforce Protection Act stands as a testament to the collaborative efforts of lawmakers and religious organizations to address the pressing needs of faith communities. By proposing practical solutions to visa-related challenges, the act aims to ensure that religious workers can continue their invaluable service without undue interruption, thereby enriching the spiritual and communal life of congregations across the United States.
Supreme Court Approves Trump-Era Migrant Deportations Under 1798 Wartime Law
Supreme Court Approves Trump-Era Migrant Deportations Under 1798 Wartime Law. The U.S. Supreme Court has given the green light for the government to resume deporting undocumented migrants under a centuries-old wartime law, handing a temporary win to the Trump administration. A Rare Law, Revived in 2025 In a 5-4 decision released Monday, the Court lifted […]
HUD Updates FHA Loan Residency Requirements: Citizenship or Permanent Residency Now Required
The U.S. Department of Housing and Urban Development (HUD) has issued Mortgagee Letter 2025-09, which updates the residency requirements for borrowers seeking Federal Housing Authority (FHA) insured financing. These changes take effect on May 25, 2025, and require that the borrower be a U.S. citizen or a lawful permanent resident to qualify for FHA-insured mortgages.
Under the new rules, non-permanent residents no longer qualify, while lawful permanent residents must provide acceptable documentation, such as U.S. Citizenship and Immigration (USCIS) records, as part of the loan application to prove their lawful status. A social security card alone is not enough to prove immigration or work status. The streamlined refinance procedures also reflect these changes by removing references to non-permanent resident status, which means borrowers who want to refinance their FHA loans must meet the same requirements.
Overall, this shift by HUD may reduce the number of borrowers who can secure FHA loans in areas with substantial non-permanent resident populations, and it may influence both demand and supply in local real estate markets.
H-2B Cap Met for Second Half of FY 2025; Options Still Exist for Employers Seeking Temporary Workers
On March 25, 2025, U.S. Citizenship and Immigration Services (USCIS) announced that the H-2B cap for the second half of fiscal year (FY) 2025 was met on March 5, 2025. Employers seeking to employ H-2B workers to meet their labor demands will need to hire cap-exempt workers or H-2B workers who meet the criteria under the supplemental allocation.
Quick Hits
USCIS announced that the second half of the H-2B cap was met for FY 2025 on March 5, 2025.
The announcement stated that cap-subject H-2B petitions received on or after March 6, 2025, would be rejected.
The agency will continue to accept properly filed cap-exempt petitions and petitions for workers qualifying under the supplemental allocation.
The H-2B program allows employers to hire foreign national workers to meet their temporary, seasonal, one-time occurrence, or peak load nonagricultural labor needs when there is a shortage of willing, able, and qualified U.S. workers. Each year, 66,000 new H-2B visas are available under the annual cap. The cap is split evenly between the first and second halves of the fiscal year.
For FY 2025, the U.S. Department of Labor (DOL) and U.S. Department of Homeland Security (DHS) allocated an additional 64,716 H-2B visas for FY 2025 due to an increased need for H-2B workers. Under this supplemental allocation, additional H-2B cap spots were allocated for citizens of certain countries and returning H-2B workers who were previously counted under the caps of prior years.
Cap-Exempt H-2B Workers
Employers seeking to fill H-2B spots for the remainder of 2025 can sponsor cap-exempt H-2B workers or petition to use the supplemental allocation.
Workers exempt from the congressionally mandated H-2B cap include the following categories:
Individuals who are currently in the United States working in H-2B status and wish to extend their stay, amend the terms of their employment, or change employers
Individuals who have already been counted against the H-2B cap in the same fiscal year (FY 2025)
Individuals who will work as fish roe processors, fish roe technicians, or fish roe processing supervisors
Individuals who will be employed in the Commonwealth of the Northern Mariana Islands or Guam
Supplemental Allocation
Employers may also petition to hire workers under the supplemental allocation. To qualify for the supplemental visas, the petitioning employer must attest that they are suffering or will suffer irreparable harm if they are not able to hire H-2B workers. The workers must qualify under the returning workers allocation or the country-specific allocation.
Under the returning workers allocation:
44,716 visas are reserved for individuals who were issued a H-2B visa or held H-2B status in any of the past three fiscal years, regardless of nationality.
The returning worker visas are divided between the first half of FY 2025, the early second half of FY 2025, and the late second half of FY 2025, depending on the worker’s start date.
Under the country-specific allocation:
20,000 H-2B visas are reserved for nationals of Colombia, Costa Rica, El Salvador, Ecuador, Guatemala, Haiti, and Honduras. These individuals do not need to be classified as returning workers.
The speed and regularity with which the annual cap is met underscores the essential role of H-2B workers in the economy. H-2B workers are employed in diverse industries across the United States, from hospitality and landscaping to fishing and manufacturing. In the second half of FY 2024, the cap was met on March 7, 2024.
Looking Ahead
Employers relying on H-2B workers may need to look for cap-exempt workers, returning workers, or workers from specific countries to meet their labor demands. Employers may also want to begin planning for the FY 2026 H-2B cap, as demand continues to increase in this visa category.
Beltway Buzz, April 4, 2025
The Beltway Buzz™ is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
House Republicans Postpone Votes on Key Bills. On April 1, 2025, Republican leaders in the U.S. House of Representatives canceled all remaining votes for the week after they failed to squash an effort within their own ranks to allow new parents in the House to vote by proxy. The unexpected abbreviated work week means that anticipated votes on the Safeguard American Voter Eligibility (SAVE) Act (a bill that passed the House in July 2024 that would require proof of citizenship to register to vote in federal elections) and the No Rogue Rulings Act (a bill that would prohibit federal district courts from issuing orders providing for injunctive relief beyond the parties to the litigation, meaning no nationwide injunctions) have been postponed. The Buzz will continue to monitor these bills when the House returns to Washington, D.C.
President Trump Sends Nominations for WHD Administrator, DOL Solicitor, to Senate. The political appointee picture at the U.S. Department of Labor (DOL) continues to come into focus. Secretary of Labor Lori Chavez-DeRemer and Deputy Secretary Keith Sonderling are already in place. Previously, the Buzz discussed President Donald Trump’s nominees to run the Occupational Safety and Health Administration (OSHA), as well as the Employment and Training Administration (ETA). This week, President Trump:
Nominated Andrew Rogers to serve as administrator of the Wage and Hour Division (WHD). Rogers served in the WHD during the first Trump administration before moving to the U.S. Equal Employment Opportunity Commission (EEOC), where he served as chief counsel to Commissioner Andrea Lucas. He has served as the Commission’s acting general counsel since February 4, 2025.
Nominated Jonathan Berry to serve as solicitor of labor, which is essentially the DOL’s top attorney. Berry served as the head of the DOL’s regulatory department in the first Trump administration, and also previously served in the U.S. Department of Justice.
Immigration News. The latest news on employment-based immigration policy includes the following:
H-1B Registration Completed; Petition Period Begins. Claudia P. Martorell and Sidra E. Cheema have the details on the closing of the H-1B registration period and the opening—beginning April 1, 2025—of the ninety-day petition filing period with U.S. Citizenship and Immigration Services (USCIS).
Bill Would Eliminate OPT. A group of nine Republicans in the House have introduced the ‘‘Fairness for High Skilled Americans Act of 2025’’ (HR 2315), which would eliminate the Optional Practical Training (OPT) for F-1 students. The OPT program provides F-1 students with up to three years of work authorization after graduation. The bill should not be confused with an identically named bill that has been introduced in previous congresses that would eliminate the 7 percent per-country cap for employment-based visas and make significant changes to the H-1B visa program.
Judge Blocks Vacatur of TPS Designation Venezuela. A federal district court in California temporarily blocked Secretary of Homeland Security Kristi Noem’s recent rescission of Temporary Protected Status (TPS) for certain individuals from Venezuela. The judge determined, in part, that the TPS statute “does not permit the Secretary to terminate a TPS designation ‘midstream’ during the term of the prior designation.” Protected status from deportation for covered individuals was scheduled to terminate on April 7, 2025. Amanda M. Mullane and Daniela Medrano Sullivan have the details.
House Republicans Introduce Labor Bills. House Republicans have introduced bills that address union organizing through the use of “salts,” as well as voting in union representation elections:
Union Salts. Republican Representative Burgess Owens (UT) reintroduced the Start Applying Labor Transparency (SALT) Act, which would require more transparency from union salts, who are professional union organizers who seek employment only in order to organize employees. The Buzz wrote about the SALT Act in 2024.
Representation Elections. Representative Bob Onder (R-MO) introduced the Worker Enfranchisement Act, which would allow a union to become the exclusive bargaining representative of employees only if it wins a majority of votes cast in a secret ballot election “in which not less than two-thirds of such employees vote.” Currently, unions can become the representative of an entire bargaining unit—impacting the terms and conditions of all employees in that unit—if they win a majority of the votes cast, no matter how poor the voter turnout is.
Remembering Justice Reed. On April 2, 1980, former Supreme Court Associate Justice Stanley Forman Reed passed away. While perhaps not as well-known as some of his contemporaries, Reed enjoyed quite a legal career. After serving in the United States Army in World War I, Reed returned to his Kentucky home where he carved out a legal career representing agricultural interests. This led to his 1929 appointment by President Herbert Hoover to serve as general counsel of the Federal Farm Board. In 1932, President Franklin D. Roosevelt appointed Reed as general counsel of the Reconstruction Finance Corporation and then, in 1935, as solicitor general of the United States. Here is where things got interesting for Reed:
As solicitor general, Reed was tasked with defending many of FDR’s New Deal programs. Among other cases, Reed argued and won West Coast Hotel Co. v. Parrish (1937) (the “switch in time that saved nine,” by upholding minimum wage laws) and National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) (upholding the constitutionality of the National Labor Relations Act).
Reed argued and lost A.L.A. Schechter Poultry Corporation v. United States (1935), also known as the “sick chicken” case.
While defending New Deal programs, Reed once argued six cases before the Supreme Court in a span of two weeks, collapsing from exhaustion during the middle of one of the arguments in December of 1935.
In 1938, FDR nominated Reed to serve as an associate justice of the Supreme Court of the United States, where he served until his retirement in 1957.
In 1949, as a sitting justice on the Court, Reed served as a character witness on behalf of Alger Hiss, who was being tried for perjury in connection to accusations that Hiss was a spy for the Soviet Union. Hiss had served under Reed at the Reconstruction Finance Corporation.
Reed is the last serving justice who did not graduate from law school. (He attended law school, but he did not graduate).
Venezuela’s TPS Designation: Federal Judge Issues Nationwide Order Temporarily Reinstating Program
A U.S. district court judge recently issued a temporary nationwide order postponing Secretary of Homeland Security Kristi Noem’s decision to cancel the extension of the Temporary Protected Status (TPS) designation for Venezuela, and the overall termination of TPS designation. The court’s decision sets aside the implementation of these actions until the court issues its final decision on the merits in National TPS Alliance v. Noem.
Quick Hits
On March 31, 2025, a U.S. district court judge issued an order temporarily reinstating Venezuela’s TPS pending further litigation.
Shortly after taking office, Secretary of Homeland Security Noem canceled the extension of the 2021 and 2023 TPS designations for Venezuela and the overall 2023 TPS program for Venezuelans.
This court order ensures that Venezuelan TPS holders retain their legal status and employment authorization through October 2, 2026, while the case is being decided.
Background
The secretary of Homeland Security may designate a foreign country for TPS due to temporary conditions such as ongoing armed conflict, an environmental disaster, epidemics, or other extraordinary and temporary conditions that prevent nationals from safely returning to that country. TPS beneficiaries who meet the parameters of such programs are protected from removal from the United States, and they can receive work and travel authorization.
In 2021, Venezuela was initially designated for TPS and, through extensions, this program remains in place. In October 2023, Venezuela was redesignated for TPS, expanding the program and providing additional relief for citizens of Venezuela who met qualifying criteria. The 2021 and 2023 designations were most recently extended by the Biden administration on January 17, 2025, for eighteen months, to October 2, 2026.
On January 28, 2025, Secretary Noem canceled the extension of the 2021 and 2023 TPS designations for Venezuela. This decision reinstated the expiration of TPS for Venezuelan beneficiaries under the 2021 designation to September 10, 2025, and for new applicants under the 2023 designation to April 2, 2025.
On February 1, 2025, Secretary Noem terminated the 2023 TPS designation, ending temporary legal protections for beneficiaries under the 2023 designation on April 7, 2025.
The Nationwide Order
On March 31, 2025, U.S. District Court Judge Edward Chen issued a nationwide order postponing Secretary Noem’s cancelation of the eighteen-month extension for the 2021 and 2023 TPS designations and the termination of the 2023 TPS designation. This order will remain in place until the court issues its final decision on the merits in National TPS Alliance v. Noem.
Analysis and Impact
The U.S. district court’s order temporarily results in the following, pending further litigation:
Venezuela’s 2023 TPS designation is reinstated.
The eighteen-month extension for 2021 and 2023 TPS designations is reinstated, providing legal protected status for Venezuelan TPS holders through October 2, 2026.
The Employment Authorization Documents (EAD) issued under the 2021 or 2023 TPS designations with an expiration date of September 10, 2025; April 2, 2025; March 10, 2024; or September 9, 2022, remain valid through April 2, 2026.
USCIS issued guidance on I-9 completion. The USCIS guidance instructs employers “to enter April 2, 2026, pending further litigation, on Form I-9 as the new expiration date of the automatically extended EAD.”
Venezuelan TPS holders may also demonstrate a 540-day automatic extension of their EAD “Card Expires” dates upon presenting:
an EAD showing category code A12 or C19; and
a Form I-797 Receipt Notice confirming a pending I-765 application for a category code A12 or C19 EAD renewal showing a “Received Date” between January 17, 2025, and September 10, 2025.
The U.S. district court’s order does not impact TPS designations for other countries.
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USCIS Announces New Employment Authorization Procedures for Certain Hong Kong Residents Under Deferred Enforced Departure
The U.S. Citizenship and Immigration Services (USCIS) announced updated procedures for certain Hong Kong residents covered under Deferred Enforced Departure (DED) to apply for Employment Authorization Documents (EADs). These new procedures, detailed in a Federal Register notice posted for public inspection, enable eligible individuals to apply for EADs that will remain valid through Feb. 5, 2027.
Additionally, the notice automatically extends the validity of existing Hong Kong DED-related EADs that bear an expiration date of either Feb. 5, 2023, or Feb. 5, 2025, and include a Category Code of A11. These EADs are now valid through Feb. 5, 2027, and can be presented as proof of both identity and employment authorization when completing Form I-9, employment eligibility verification.
Background on Deferred Enforced Departure (DED) for Hong Kong Residents
Deferred enforced departure (DED) is a discretionary authority granted by the president of the United States as part of constitutional powers to conduct foreign relations. While DED is not a formal immigration status, it provides eligible individuals with protection from removal from the United States for a designated period.
On Jan. 15, 2025, a presidential memorandum extended DED protections for certain Hong Kong residents through Feb. 5, 2027. This extension applies to individuals who were present in the United States as of Jan. 15, 2025. Eligible individuals under DED are not subject to removal during the designated period and are authorized to work in the United States.
Applying for Employment Authorization
Eligible Hong Kong residents that DED covers may apply for an EAD by filing Form I-765, application for employment authorization. USCIS adjudicates each application on a case-by-case basis to ensure it meets all eligibility requirements and standards. As part of this process, USCIS conducts screening and vetting to identify any potential concerns related to fraud, public safety, or national security.
For individuals who may need to travel outside the United States and return, the Department of Homeland Security (DHS) may, at its discretion, grant travel authorization. To request this authorization, eligible individuals must file Form I-131, application for travel documents, parole documents, and arrival/departure records.
Considerations for Employers and Employees
Employers should be aware that individuals with automatically extended Hong Kong DED-related EADs can present an expired card as valid documentation for Form I-9 purposes. When an employee presents an EAD whose original “card expires” date has passed, employers should determine if it is a Hong Kong DED EAD that has been automatically extended and is, therefore, valid for Form I-9 purposes. To properly assess, employers must look at the “category” section on the expired EAD and identify the code “A11” to confirm the card is eligible for an automatic extension. The extended validity of these documents ensures continued employment authorization through Feb. 5, 2027. For additional information on eligibility and application procedures, visit the official USCIS website or consult the Federal Register notice outlining the DED-related policies for Hong Kong residents.