General information

The Centers for Disease Control and Prevention (CDC) announced on March 10 that it had terminated the order requiring a negative pre-departure COVID-19 test for aircraft passengers traveling to the United States from the People’s Republic of China (PRC), as well as from the Special Administrative Regions of Hong Kong and Macau. The new announcement from the CDC also terminates the requirement that passengers transiting Incheon International Airport (South Korea), Toronto Pearson International Airport (Canada), and Vancouver International Airport (Canada) on their way to the United States provide a negative COVID-19 test if they have been in the PRC, Hong Kong or Macau in the last 10 days.

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. 

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.

Today at 12pm EST the H-1B Cap Registration widow will close, and US Citizenship and Immigration Services (USCIS) will conduct the FY2024 H-1B lottery. By April 1^st, USCIS will electronically notify winners, and winners will have 90 days (until June 30^th) to submit their substantive H-1B petition to USCIS for consideration.  Yesterday afternoon registrants and attorneys were experiencing difficulty completing the H-1B registration process and many were receiving an error message when attempting to pay the $10 filing fee. This understandably created much stress and anxiety for all parties as the H-1B registration deadline is today. USCIS has acknowledged this issue and is working on a fix. USCIS states on its website that USCIS will extend the registration deadline to account for these technical difficulties, but has not released further information at this point in time. Stay tuned for more details and see this link for the most up-to-date information.

Fingers crossed for all of our H-1B cap applicants to be selected in the lottery! If you submitted the H-1B cap registration on you own and would like assistance preparing the substantive petition to USCIS please feel free to reach out to us for a consultation.

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.

In a very exciting development, Bloomberg law reported late last week that the U.S. Department of State is planning to launch a pilot program later in 2023 to offer visa renewals from within the United States for individuals in H-1B and L-1 status. Stateside processing of visa renewals used to be offered by the U.S. Department of State but was discontinued in 2004. Revitalizing this stateside renewal process would be a very welcome change to an immigration process that currently requires everyone who needs to renew a visa to travel abroad to a U.S. consulate or embassy. While the pilot project will begin with just individuals in H-1B and L-1 status, it may be expanded to include other visa categories. Stay tuned for more information as this exciting new pilot program continues to be rolled out.

House Representative Pramila Jayapal (D-W.A.) recently reintroduced the Access to Counsel Act to ensure that U.S. citizens, green card holders, and other individuals with legal status are able to consult with legal counsel, relatives, or other interested parties to seek assistance if they are detained by Customs and Border Protection (CBP) for more than one hour at ports of entry, including airports. Companion legislation will be introduced in the Senate in the coming weeks by Senator Alex Padilla (D-CA).

The Access to Counsel Act would:

• Require the Department of Homeland Security to ensure that people with valid travel documents who present themselves at the border, airports, or other points of interaction can communicate with counsel and other interested parties if they are subjected to prolonged inspection by CBP. 
• Allow counsel or a covered interested party the ability to advocate on behalf of the individual by providing information or documentation in support of the individual.
• Invalidate any effort by CBP to persuade someone to relinquish their legal status (by executing an I-407 or Record of Abandonment of Lawful Permanent Resident Status) if that person has been denied access to counsel.

The Access to Counsel Act was originally introduced by Representative Jayapal in 2017 as a response to Donald Trump’s Muslim Ban.

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 1^st 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.

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.