Author: Caroline Lee

The Department of Homeland Security (DHS) published a temporary final rule that will increase the automatic extension period applicable to certain expiring Employment Authorization Documents (EADs) to up to 540 days from the expiration date stated on the EADs. The temporary final rule is effective as of April 8, 2024. DHS is effecting these changes to prevent renewal applicants from experiencing a lapse in their employment authorization and documentation. Without this temporary rule, DHS estimates that approximately 800,000 renewal EAD applicants would be in danger of having their applications remain pending beyond the current 180-day auto-extension period because of USCIS processing delays. Thus, the 540-day extension is a welcome and necessary update. Comments on the temporary final rule are due by June 7, 2024.

The H-1B cap lottery opened on March 6, with USCIS rolling out new technological updates and company-centric “organizational accounts,” allowing employers to link multiple members of their organization to the account for the H-1B registration process. Despite these updates, there have been bumps with the lottery process, including employer and company signatures not showing up on the registration summaries, despite the parties having signed as directed. Additionally, there have been reports of 404 error messages resulting from reverting Form G-28 and USCIS between the employer and the legal representative, as well as payment problems with registration. USCIS appears to have resolved the technical glitches at this time; here’s hoping the remainder of the lottery period will go smoothly!

As a reminder, the H-1B lottery will close on March 22 at 12 pm EST.  Please schedule a consultation with Curray York & Associates if you have questions about H-1Bs!

USCIS released data from FY2023 showing that it completed 10 million immigration cases and reduced its backlog for the first time in over a decade, making progress towards its strategic initiatives. The agency also announced that its data improved customer experiences, addressed humanitarian needs, and strengthened employment-based immigration in the last year. Per USCIS, it reduced backlogs by over 15% in 2023 and effectively eliminated its backlog of naturalization applications; the median processing time for naturalization applications dropped from 10.5 months to 6.1 months by the end of the fiscal year. USCIS also launched new online tools in 2023 which are intended to enhance customers’ experience and increase efficiency.

The agency stated that it will continue to build on its progress in 2024 while monitoring and addressing remaining processing delays. Within this framework, USCIS has announced new filing fees effective April 1, and has stated that the new fees will allow it to recover operating costs, reestablish and maintain timely case processing, and foster efficiency in the adjudication of immigration benefits.

Heads up – U.S. Citizenship & Immigration Services (USCIS) filing fee increases may be coming our way shortly.  It’s possible that the USCIS Final Fee Rule could be published as a final rule within the next few weeks. As it has been eight years since the last fee increase, the Biden Administration may prioritize finalizing this rule sooner rather than later. Once the final rule is published in the Federal Register, it will likely take effect at least 60 days later.

For context, on January 4, 2023, USCIS issued a proposed rule on adjusting the fee schedule, which included increasing application fees by a 40% overall weighted average increase. As highlighted by the American Immigration Lawyers Association, as a result of these changes, employers would be required to pay:

• 70% more for H-1B petitions
• 129% more for O-1 petitions
• 201% more for L-1 petitions
• a $600 surcharge for Forms 1-129 and I-140
• Over 2,000% more for the H-1B electronic registration system fee
• 130% more for AOS, AP and EAD applications when filed together

USCIS has already announced an increase in premium processing fees, which will take effect on February 26, 2024.  Stay tuned for more on filing fee increases!

As early as January 2024, a limited number of H-1B specialty occupation workers will be able to renew their visa stamps in the United States, as opposed to traveling to a U.S. consulate abroad. The H-1B domestic visa renewal pilot will initially be limited to just 20,000 participants and will allow H-1B holders to renew their visas by mailing them to the Department of State rather than traveling outside the United States where they may be subject to uncertain wait times to secure an appointment at a U.S. consular office before returning. A Federal Register notice with full details is expected to be published in December. The Department of State is also working to extend interview waivers for certain temporary visas and offer a digital visa for travel to the US, with the goal of improving efficiency and reducing the backlog for consular visa appointments.

On October 20, 2023, the Department of Homeland Security (DHS) issued a notice of proposed rulemaking designed to provide much-needed updates to the H-1B specialty occupation program. Per DHS, the proposed rule will “modernize the H-1B specialty occupation worker program by streamlining eligibility requirements, improving program efficiency, providing greater benefits and flexibilities for employers and workers, and strengthening integrity measures.”

The H-1B nonimmigrant visa program permits U.S. employers to temporarily employ foreign workers in specialty occupations, which are defined by statute as occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent. The H-1B program is highly regulated and quota-based; demand for H-1B visas significantly outpaces the number of available visas each year.

Highlights of the proposed rule include:

• Streamlining eligibility requirements – the criteria for specialty occupation positions would be revised to clarify that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position;
• Improving program efficiency – the proposed rule codifies that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new filing;
• Providing greater benefits and flexibilities for employers and workers – certain exemptions to the H-1B cap would be expanded for certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. DHS would also extend certain flexibilities for students on an F-1 visa when students are seeking to change their status to H-1B. Additionally, DHS would establish new H-1B eligibility requirements for rising entrepreneurs; and
• Strengthening integrity measures – in addition to changing the selection process, misuse and fraud in the H-1B registration process would be reduced by prohibiting related entities from submitting multiple registrations for the same beneficiary. The rule would also codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition.

The notice of proposed rulemaking was published in the Federal Register on October 23, 2023. A 60-day comment period is now open, and at this time the rule remains a proposal, and not final.

If you have questions about the H-1B program or the proposed rulemaking, reach out to the attorneys at CYA to schedule a consultation!

On Monday, Oct. 2, the U.S. Supreme Court declined to review a long-litigated case on practical training and work authorization for international students. The Washington Alliance of Technology Workers (Washtech) argued that the Department of Homeland Security (DHS) could not expand Optional Practical Training (OPT) from 12 to 36 months in science, technology, engineering and math (STEM) fields. However, several court decisions previously found that DHS possessed the authority to expand STEM OPT to 36 months. Washtech filed a petition for writ of certiorari to ask the Supreme Court to review a D.C. Circuit decision in favor of DHS’s authority. The Supreme Court denied the petition, signaling that no further review of the D.C. Circuit’s earlier decision in favor of STEM OPT will occur.

OPT and STEM OPT allow international students to remain in the U.S. and work after graduation from their educational programs. Of particular importance, the additional 24 months in STEM OPT allows employers more time and a better opportunity to secure an H-1B petition for students, as H-1B lottery numbers have become increasingly difficult to secure. The Supreme Court’s decision ensures that STEM OPT will remain protected and available for international students in the STEM fields.

As we look ahead to the 2024 H-1B lottery, please reach out to schedule a consultation if you have current employees on OPT or STEM OPT and are interested in entering them in the lottery!

Given the scope and destruction of the recent wildfires on Maui, U.S. Citizenship and Immigration Services issued a fact sheet on the 2023 Hawaii wildfires and its impact on I-9 and E-Verify.  The fact sheet contains information on completing Form I-9 or reverifying when an employee’s documents are lost, stolen, or damaged, as well as how to recreate destroyed Form I-9 records.  For example, new employees whose documentation was lost, stolen or damaged may present a receipt showing they have applied for a replacement document.

For more information on I-9 or E-Verify compliance, schedule a consultation with a CYA attorney today.

U.S. Citizenship and Immigration Services (USCIS) is launching several new online tools designed to facilitate efficiency and provide better access to the agency for people with pending immigration matters.  The USCIS customer service digital tools include the following:

• Text Ahead Feature – Applicants will have the ability to opt-in to the text back feature from USCIS on an escalated service request after calling the 1-800 Contact Center number or through the online Ask Emma function (available on the USCIS website).
• Online Appointment Request Form – USCIS is launching a new online appointment request feature that is designed to provide more flexibility and certainty for applicants needing specific types of appointments, including ADIT Stamps, Emergency Advance Parole (EAP), or Immigration Judge Grants.
• Online Change of Address Function – To access this feature, applicants or attorneys must use their myUSCIS account. The new online Change of Address function will update all systems within USCIS, for each receipt number provided in real time.
• Online Biometrics Rescheduling – Per USCIS, the online function to request a new biometrics appointment date can be used only two times. The system will ask customers to select a reason for the reschedule request, the current appointment date and time, the customer’s date of birth, and ASC location. This tool cannot be used for rescheduling missed biometrics appointments, however.

If you have questions about how to access or use the new USCIS digital tools, contact a CYA attorney today!

The U.S. Department of State posted the July 2023 visa bulletin, and there are some significant shifts to be seen. Unfortunately, in the most notable movement, EB-3 for India retrogressed from June 15, 2012, in June to January 1, 2009, and EB-3 for the rest of the world, Mexico, and the Philippines also retrogressed. U.S. Citizenship and Immigration Serves has stated that for July 2023, applicants in all family-sponsored preference categories must use the Dates for Filing chart and applicants in all employment-based preference categories must use the Final Action Dates chart.

If you have questions about the visa bulletin or EB-3 retrogression, please contact the attorneys at CYA today!