General information

On March 19, 2024, the American Immigrant Investor Alliance, IT Service Alliance, and an EB-5 investor filed a lawsuit in the U.S. District Court for the District of Colorado challenging the legality of the new USCIS final fee rule, scheduled to take effect on April 1, 2024.  (Moody, et al. v. Mayorkas, et al., 3/19/24).  The District Court of Colorado may issue an order this week that stops the new fee rule from going into effect on April 1, 2024.  If so, USCIS would likely continue to accept the current filing fees and forms until the Court decides on the legality of the new fee rule.  Stay tuned, it’s going to be an exciting week!   

Due to technical issues and glitches with the online H-1B Cap Registration system, USCIS has extended the deadline for H-1B Cap Registration to Monday, March 25, 2024, at 12 noon ET. Once the registration period ends, USCIS will run the lottery and notify the winners that they have been selected to proceed with filing an H-1B petition by June 30, 2024. Good luck to all registrants!

If you thought USCIS was catching up with the 21^st century, think again! USCIS recently issued updated guidance regarding the signature requirement for the USCIS fillable version of the Form I-9. Even though the Form I-9 is an electronic fillable form, USCIS has clarified that employers/employees must still print and manually sign the form rather than typing or electronically signing signatures. Thus, employers and employees using the fillable version of the Form I-9 may electronically type answers directly into the form, except for the signature blocks. Any I-9s that have been completed with an electronic signature are noncompliant and need to be corrected. For more info, see this link.

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!

The Senate is hurrying to pass a set of six government funding bills before the shutdown deadline looms at the end of Friday March 8th. While there’s confidence that a shutdown won’t occur, securing unanimous agreement among all 100 senators on a voting schedule is still crucial. Once the Senate greenlights the funding bills, they’ll head to President Joe Biden for his signature, after having been approved by the House on Wednesday. Lawmakers are grappling with two impending shutdown deadlines, one on Friday March 8th and another on March 22nd.

If government agencies close for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work. Below is a brief summary of how U.S. immigration agencies have operated during prior shutdowns.

• U.S. Department of Homeland Security (DHS): Nearly three in four DHS employees – more than 185,000 people – would be required to continue working through a shutdown, without receiving a paycheck. Those working without pay include law enforcement officers, analysts, investigators, and disaster response officials conducting work such as border security and deportation and removal operations. DHS provided the following information regarding what would happen during a government shutdown.
• U.S. Citizenship and Immigration Services (USCIS): USCIS is a fee-funded agency so if the government shuts down, USCIS typically continues to operate per normal with the exception of any programs that receive appropriated funds such as the E-Verify program.
• U.S. Department of State (DOS): Visa and passport operations are fee-funded and thus are not normally impacted by a shutdown. However, consular operations can be impacted if there are insufficient fees to support operations at a particular post. In this case, posts will generally only handle diplomatic visas and emergencies.
• U.S. Customs and Border Protection (CBP): CBP personnel are considered “essential.” Ports of entry will be open, and processing of passengers will continue; however, processing of applications filed at the border may be impacted.
• Immigration and Customs Enforcement (ICE): ICE enforcement and removal operations continue during a shutdown, although ICE attorneys generally focus on the detained docket. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
• Executive Office for Immigration Review (EOIR): Immigration court cases on the detained docket will proceed during a lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes.
• U.S. Department of Labor (DOL): The DOL would stop processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. Web-based systems, such as FLAG and PERM, would be inaccessible, and BALCA dockets will be placed on hold.

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.

This week Senate negotiators proposed a bipartisan deal to address the situation at the U.S. – Mexico border. However, on Wednesday, the Senate encountered a roadblock as the bipartisan border and national security bill failed to move forward.

The vote margin was razor-thin, with 49 senators in favor and 50 opposed; 45 Democrats and four Republicans supported advancing the bill, falling short of the required 60 votes to initiate debate. The majority of the GOP caucus opposed the bill’s advancement, arguing that it inadequately addressed the escalating crisis at the US-Mexico border, where unauthorized crossings have surged to record levels. Additionally, five members of the Democratic caucus voted against the bill due to concerns over the severity of proposed border security measures and the allocation of funds for Israel’s military amidst ongoing conflicts, notably in Gaza. The proposed $118 billion bill included provisions granting the president new authority to close the border during periods of heightened crossings and expediting the asylum review process, potentially leading to expedited deportations. It also allocated $60 billion in military aid for Ukraine, $14 billion in security assistance for Israel, and $10 billion in humanitarian aid for civilians affected by conflicts in Ukraine, Gaza, and the West Bank.

USCIS has published a final rule in the Federal Register that will improve the odds of winning the H-1B Visa Lottery in 2024 and beyond!  Below is what we know about this year’s H-1B Cap Registration process and the changes that are being made.

The registration period for this year’s H-1B cap lottery will open at 10 am MT on Wednesday, March 6, 2024, and run through 10 am MT on Friday, March 22, 2024.  Once the registration period ends, USCIS will run the “lottery” and notify the “winners” who can then proceed with filing the H-1B petition within the 90-day filing period (April 1, 2024, through June 30, 2024).  The H-1B petition will be approved for a start date no earlier than October 1, 2024.  It is unclear yet whether there will be multiple rounds of “selections” and H-1B filing periods throughout 2024 like there were last year.

Here is a summary of the most significant changes to the H-1B Cap Registration Process:

1.  The H-1B Cap Registration fee will remain $10.00 per registration for this year.  However, starting next year, the H-1B Cap Registration fee will increase to $215.00 per registration.

2. Instead of selecting the H-1B Cap Lottery winners by registration, USCIS will select registrations by unique beneficiary.  Each unique beneficiary who has a registration submitted on their behalf will be entered into the selection process once, regardless of how many registrations are submitted on their behalf.  If a beneficiary is selected (i.e. wins the H-1B lottery) each registrant who submitted a registration on that beneficiary’s behalf will be notified of the beneficiary’s selection and will be eligible to file an H-1B petition on that beneficiary’s behalf during the H-1B filing period.

3. Each beneficiary must submit a valid passport or travel document ID information to register for the H-1B Cap Lottery.  Each beneficiary can only register one valid passport or travel document and it must be the passport/travel document that the beneficiary intends to use to apply for H-1B status at the U.S. Consular Office abroad.  The beneficiary will be required to provide a copy of the passport used for H-1B Cap Registration with the H-1B petition (if selected).  If a beneficiary registers more than one passport/travel document and/or the registered passport/travel document information does not match what is submitted with the H-1B petition, then USCIS may deny or revoke the H-1B petition. 

4. The H-1B start date, can now be on or after October 1, 2024.

5. For those who are selected (win the H-1B lottery), and can file an H-1B petition this year, USCIS has increased the filing fees for H-1B petitions and premium processing.  USCIS filing fees will be determined based on whether the petitioner has 25 or more full-time employees, whether the petitioner is a 501(c)(3) non-profit entity, and the type of visa classification sought (i.e. H-1B). 

Stay tuned for more information about how the H-1B Cap Lottery goes this year!

Today, USCIS published a new filing fee rule in the Federal Register. In addition to the I-907 premium processing fees increasing on February 26, 2024 (prior fee of $1,500 increases to $1,685, prior fee of $1,750 increases to $1,965, and prior fee of $2,500 to $2,805), the key takeaways are:

• USCIS will distinguish between large, small, and non-profit petitioners – For I-129 petitions, the filing fee will differ depending on the visa type, the # of full-time employees, and whether the petitioner is a 501(c)(3) non-profit entity.  Large employers will pay higher filing fees, while small employers (those with 25 or fewer full-time employees), and non-profits will pay a lower filing fee.

• Asylum Program Fee – Petitioners filing Forms I-129, I-129CW, and I-140, will be subject to a new “Asylum Program Fee” of $600 ($300 for small employers (25 or fewer full-time employees) and $0 for 501(c)(3) non-profits), in addition to the USCIS filing fee and other required fees (i.e. the training and fraud prevention fee for H-1Bs).  The asylum program fee will fund USCIS implementation of the Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers (Asylum Processing IFR) (87 FR 18078 Mar. 29, 2022). 

• Online v. Paper Filing – For Forms I-90, I-130, I-539, N-400, N-336, N-565. N-600, N-600K, I-765, the online filing fee is less than the paper filing fee.

• De-coupling of the I-485 from the I-765 and the I-131 – USCIS will no longer offer the I-485/I-765/I-131 bundled filing fee package which currently includes the filing fees for the initial applications and all I-765 and I-131 renewals.  On April 1, 2024, USCIS will begin charging a separate fee for the I-485 application ($1,440) plus additional fees for the I-765 ($260 if filed initially with an I-485 application or for an I-765 renewal while the I-485 application is pending, which represents a discount of half the regular I-765 filing fee), plus $630 for an I-131 Advance Parole based on a pending I-485.  Advance Parole renewals will be $630. 

• N-400 filing fee discount for those whose household income is at or below 400% of the federal poverty income guidelines.  The filing fee decreases from $760 (paper filing) to $380.

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!