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If you or your employee did not get selected in the initial draw from this year’s H-1B lottery, unfortunately, you’re not alone. Since USCIS changed the H-1B process in 2020 to a bifurcated system that permits registration and lottery prior to filing a substantive H-1B petition, the number of applicants has gone up dramatically. Prior to 2020, an employer would need to file a full H-1B petition by the April deadline, and hope to receive a cap number. Now, for a very low registration fee, employers first enter their employees in the lottery, and if selected, the employer may then file a full H-1B petition for the beneficiary.

While the new registration system has many advantages, including not requiring employers to invest the full expense of an H-1B petition without knowing if their employee will be selected in the lottery, it has also had the effect of drastically increasing the pool of applicants, simultaneously decreasing the likelihood of selection for each person. This year’s lottery was especially bleak: during the registration period for the FY 2024 H-1B cap, USCIS saw a significant increase in the number of registrations submitted compared to prior years. There was an increase in the number of registrations submitted, the number of registrations submitted on behalf of beneficiaries with multiple registrations, and the number of registrations submitted on behalf of unique beneficiaries with only one registration. An astonishing 780,884 registrations were received in the lottery period, but ultimately, only 85,000 H-1B visas may be allotted each year. As a result, these numbers spelled disappointment for the vast majority of registrants.

This year’s lottery, more than ever, underscores the need for H-1B reform legislation that ensures that the supply of H-1B visas is responsive to the needs of U.S. employers and the economy.  If you did not receive an H-1B selection and would like to discuss your other visa options, reach out to the attorneys at CYA today.

The Title 42 Covid Ban invoked by the Trump Administration is set to end on May 11, 2023. The controversial policy allowed officials at the southern border to quickly deny asylum seekers due to the ongoing COVID pandemic emergency. Now that the Biden Administration has decided to lift the ban, thousands of applicants are expected at the border in hopes of receiving protection under asylum regulations. In an effort to ease the burden at the southern border, the Biden Administration will be opening Processing Centers in Guatemala and Columbia. The intention is to have applicants present their asylum claims at these centers without having to make the dangerous journey through Latin America and Mexico to get to the US. However, new policies will also permit CBP officers to deny asylum claims at the border if they did not apply for asylum in the countries they passed through or set an appointment with CBP. With the cooperation of the Mexican government, CBP will quickly expel ineligible asylum seekers from several countries, back to Mexico. The Secretary of Homeland Security, Alejandro Mayorkas, called on Congress to provide resources as they prepare for the anticipated surge of asylum applicants and unauthorized entries next month.

U.S. Citizenship and Immigration Services (USCIS) has clarified that effective March 31, 2023, immigration benefit requestors may select their gender on USCIS forms (or change a prior gender selection) without needing to provide supporting documentation for the selected gender. Documents issued by USCIS as a result of the benefit adjudication will reflect the benefit requestor’s gender selection.

In issuing this updated guidance, USCIS notes that “[r]emoving evidentiary requirements regarding gender markers better ensures that all secure identity documents and biographic data are accurate . . . it also removes the burden imposed by requiring that requestors have to publicly discuss or provide documentation regarding the gender listed on their identity documents in order to obtain a benefit or service.”

Currently, the only gender markers available are “Male” (M) or “Female” (F). The Department of Homeland Security is working on options to include an additional gender marker (“X”) for another or unspecified gender identity. USCIS will update its forms and the Policy Manual accordingly.

U.S. Customs and Border Protection (CBP) is moving forward with its “stampless entry program.” Last year, CBP initiated a streamlined arrival process at all 238 arriving airports, 34 seaports, all southern pedestrian ports, and most northern secondary land ports. The objective of this streamlined process is simple – to fully digitize the process of entering the United States. As part of this digitized process, CBP piloted a project to eliminate ink stamps in passports at entry. This fall CBP confirmed that this program will become permanent and expanded to all ports of entry. While CBP officers may stamp passports on request, many will not as a discretionary matter. Similarly, all I-94s are electronically issued – no paper I-94s will be issued.

This digitized change in process will have a practical impact on nonimmigrants and noncitizens. Specifically, now the only record of a noncitizen’s admission into the United States is an electronic I-94 record that is not reviewed by the applicant for admission until after admission and only if the applicant takes it upon him or herself to check their records. Errors in admission status and duration are common, and any negative consequences of an overstay due to CBP error are borne fully by the noncitizen applicant. Because of this, CYA strongly encourages all noncitizens entering the US to promptly check and download their I-94 after each re-entry into the U.S. Any errors should be taken seriously and promptly corrected. Maintaining thorough and complete records of entries and exits is often critical for recapturing nonimmigrant status, proving maintenance of status, and eligibility for naturalization.

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.