Starting on October 1, 2023, employment authorization documents (EADs), both initial and renewals, will be issued for a validity period of 5 years for certain non-citizens. Those who are eligible for the 5-year period of work authorization include adjustment of status applicants, those who have pending asylum applications, refugees and asylees, as well as those applying for cancellation of removal in removal proceedings.
Biden Administration Announces Extension and Expansion of Temporary Protected Status for Venezuelans
On September 21, 2023, the Biden Administration announced an 18-month extension and expansion of Temporary Protected Status (TPS) for Venezuelans who came to the U.S. prior to July 31, 2023, due to unsafe conditions in Venezuela. Temporary Protected Status provides temporary legal status in the U.S. and work authorization for those who meet certain criteria. The administration will be publishing an official announcement in the Federal Register with further details.
Will all the Employment-Based Preference Categories be “Current” in October 2023?
On July 28, 2023, Congressmen Raja Krishnamoorthi (D-Illinois) and Larry Bucshon, M.D. (R-Indianna) led 56 of their colleagues in sending a letter to Secretary of State Antony Blinken and Department of Homeland Security Secretary Alejandro Mayorkas requesting the Biden administration take executive action to provide relief to highly skilled immigrant workers by advancing all the USDOS Visa Bulletin employment-based categories “Dates for Filing” to “Current”, and allowing employment-based applicants to file their I-485 applications for U.S. permanent residence based on the “Dates for Filing” charts. Since then, there has been much speculation regarding whether the Biden administration will entertain such administrative action. To date there has been no official response from the administration indicating that it intends to take such administrative action and if so, when. We will know if such action will be taken in October 2023 by mid-September when the USDOS issues the Visa Bulletin for October 2023. Given that the administration hasn’t already enacted this type of administrative relief for highly skilled workers, and USCIS is still mulling over proposed filing fee increases that would raise filing fees, decouple the I-485 Adjustment of Status filing fee from the I-765 Employment Authorization and I-131 Advance Parole filing fees, and enact a new filing fee for I-765 and I-131 renewals, we do not believe it is likely that the Biden administration will take such action starting in October 2023. If the Biden administration is considering taking such executive action, we believe it will be in conjunction with the implementation of the new filing fee rule. Thus, we do not believe that all employment-based preference categories will become “Current” in October 2023. However, we hope that there is a significant advancement in the employment-based preference categories in October 2023 which will allow those whose categories recently backlogged to move forward with their I-485 applications. Stay tuned! Mid-September is right around the corner!
U.S. Supreme Court Upholds Biden’s Policy Prioritizing Federal Immigration Enforcement Against Certain Classes of Non-Citizens
On June 23, 2023, the Supreme Court issued a decision in United States v. Texas, 599 U. S. __ (2023) (reversing United States v. Texas, 606 F. Supp. 3d 437 (2023)). The case was brought before the U.S. Supreme Court by the States of Texas and Louisiana challenging the Biden Administration’s policy of establishing federal civil immigration enforcement priorities. The Supreme Court held that the States lacked Article III standing to challenge the Biden administration’s immigration enforcement priorities and effectively reversed the Texas district court holding. The Biden policy prioritizes the arrest and removal of dangerous non-citizens and suspected terrorists.
USCIS Announces the 2023 H-1B Cap Winners
Yesterday, U.S. Citizenship and Immigration Services (USCIS) announced that it received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2024 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap). USCIS has run the “lottery” and notified all of the winners.
Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered):
• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
• Selected: Selected to file an H-1B cap petition.
• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, disputed, or otherwise invalid.
Once the initial filing period has ended (June 30, 2023), USCIS will evaluate whether there are any “leftover” H-1B visas for this registration period and will announce whether there will be an additional round of selections and filing period for H-1B petitions.
U.S. Department of State is Increasing Non-Immigrant Visa Processing Fees
On 3/28/23, the DOS will publish a final rule in the Federal Register increasing non-immigrant consular processing fees. The effective date is 60 days after publication.
Below are the adjustments to the fee recommendations that the Department of State will implement in the final rule:
• The application processing fee for non-petition based NIVs (except E category), will be raised from $160 to $185. This represents a 15.6 percent increase over the current fee, but is $60 or 24.5 percent below the original proposal of $245.
• The application processing fee for H, L, O, P, Q, and R category NIVs, will be raised from $190 to $205. This represents a 7.9 percent increase over the current fee, but is $105 or 33.9 percent below the original proposal of $310.
• The processing fee for the BCCs for Mexican citizens age 15 and over will be raised from $160 to $185. This represents a 15.6 percent increase over the current fee, but is $60 or 24.5 percent below the original proposal of $245.
• The fee for E category NIVs will be raised from $205 to $315. This represents a 53.7 percent increase over the current fee, but is $170 or 35 percent below the original proposal of $485.
• The fee for the exchange visitor waiver of two-year residency requirement will be maintained at $120, instead of the proposed $510.
Premium Processing Expansion for F-1 OPT and STEM OPT Applications
USCIS announced the expansion of premium processing for certain F-1 students seeking Optional Practical Training (OPT) and F-1 students seeking STEM OPT extensions who have a pending I-765 Application for Employment Authorization and wish to request a Premium Processing upgrade.
Online filing of Form I-907 Request for Premium Processing is now also available to F-1 students with pending OPT and STEM OPT applications.
The expansion of Premium Processing for F-1 students will occur in phases, and F-1 students requesting Premium Processing should not file before these dates:
- Beginning on March 6, 2023, USCIS will accept Premium Processing requests (paper or online) for F-1 students with pending Form I-765 Applications for Pre-Completion or Post-Completion OPT) and STEM OPT Extensions.
- Beginning on April 3, 2023, USCIS will accept Premium Processing Requests (paper or online) for F-1 students filing their initial Form I-765 Applications for Pre-Completion/Post-Completion OPT or STEM OPT Extensions.
The Premium Processing fee for Form I-765 Employment Authorization for F-1 OPT and STEM OPT applications is $1,500.00 and the processing time is 30 days.
Join CYA for a Zoom Presentation: 2023 H-1B Cap Survival Bootcamp
Interested in learning more about the 2023 H-1B Cap process? We’ll be hosting a 2023 H-1B Cap Survival Bootcamp presentation and discussion via Zoom on Friday, March 3rd from 12pm MST to 1pm MST. Space is limited! If you’d like to attend the presentation, please RSVP no later than 5pm on Friday, February 17th to reserve your spot.
USCIS Reaches Cap for Additional H-2B Visas
On February 1, 2023, USCIS announced that it has received enough H-2B petitions to reach the cap for the additional 18,216 H-2B visas that were made available for returning workers for the 1st half of fiscal year 2023, with start dates on or before March 31, 2023. USCIS continues to accept H-2B petitions for the additional 20,000 H-2B visas allotted to nationals of Haiti, El Salvador, Guatemala, and Honduras.
Time to Roll the Dice! The 2023 H-1B Lottery is On!
USCIS has announced that the registration period for this year’s H-1B Cap Lottery will be from 10am MT on Wednesday, March 1, 2023, until 10am MT on Friday, March 17, 2023. We anticipate that USCIS will notify the “winners” by the end of March 2023 and the 90-day filing period will be from April 2023 through the end of June 2023. However, we are still waiting for further details from USCIS regarding this year’s H-1B lottery.