Business Immigration Monthly – January 2023 – Work Visas
10 min read
H-1B QUOTA REGISTRATION OPENS IN APPROXIMATELY 1 MONTH – IS
YOUR COMPANY READY?
The H-1B quota registration for FY2024 (October 1, 2023 to
September 30, 2024) should open during the first week of March
2023. It is assumed that the U.S. Citizenship and Immigration
Services (USCIS) will announce within the next two weeks the
official dates of the registration period and any changes to the
electronic registration process this year.
Similar to previous years, the USCIS in FY2024 will be
authorized to approve 65,000 initial regular H-1B quota petitions.
The USCIS will also be authorized to approve an additional 20,000
initial H-1B quota petitions for individuals who have earned a U.S.
advanced degree (a.k.a U.S. advanced degree exception).
Last year, the USCIS announced that it received more than
483,927 H-1B quota registrations which was an approximately 60%
increase over the previous year. Additionally, the USCIS indicated
that approximately 31% of the registrations (150,000) were filed
requesting the U.S. advanced degree exception. Because more than
85,000 H-1B quota registrations were submitted, the USCIS conducted
random selection processes of the registration submitted. Employers
with registrations selected were then allowed to submit H-1B quota
petitions during a 90-day window on behalf of the individuals
identified in the selected registrations. Unlike in previous years,
the USCIS selected last year a significantly higher number of
registrations (127,600) to ensure that it would not have to conduct
multiple selection processes to meet the quota numerical
allocations. It is assumed that the USCIS will again this year
select a higher number of registrations so that it does not have to
conduct multiple selection processes.
Because the H-1B quota registration period will be opening in
approximately one month, we would encourage employers with current
and potential employees who are subject to the H-1B quota to
contact the MFEM Immigration Group as soon as possible in order to
allow sufficient time for us to gather the data necessary to timely
file the quota registrations.
USCIS ROLLS OUT FURTHER EXPANSION OF PREMIUM PROCESSING
The USCIS offers Premium Processing for many employment-related
immigration petitions. The advantage of Premium Processing is that,
for an additional fee, USCIS will review the immigration petition
often quicker than under their standard processing times.
Starting January 30, 2023, Premium Processing will become
available for all pending and initial petitions for Multinational
Executive/Managers (EB-1C) and National Interest Waivers (NIW).
Such petitions serve as a basis for individuals to qualify to apply
for Permanent Resident status. The Premium Processing fee will be
$2,500 and USCIS will review these petitions within 45 calendar
days (not 15 calendar days).
In addition, USCIS plans to continue its roll out of the
expansion of its Premium Processing service to other
petition/application types to comply with Emergency Stopgap USCIS
Stabilization Act. The USCIS indicated the following anticipated
schedule for the further expansion:
- To be announced in March 2023: Premium Processing of the Form
I-765 for F-1 students seeking Optional Practical Training (OPT)
and F-1 students seeking STEM OPT extensions who have a pending
Form I-765, Application for Employment Authorization. For this
service, the Premium Processing fee will be $1,500 and USCIS will
review these applications within 30 calendar days (not 15 calendar
days).
- To be announced in May 2023: Eligibility to request a Premium
Processing upgrade of a pending I-539 application for an in-country
change of status to F-1, F-2, J-1 or J-2 nonimmigrant status. For
this service, the Premium Processing fee will be $1,750 and USCIS
will review these applications within 30 calendar days (not 15
calendar days).
- To be announced in June 2023: Eligibility to request a Premium
Processing for an initial I-539 application for an in-country
change of status to F-1, F-2, J-1 or J-2 nonimmigrant status. For
this service, the Premium Processing fee will be $1,750 and USCIS
will review these applications within 30 calendar days (not 15
calendar days).
As discussed in the article below, the USCIS is proposing to
change Premium Processing from calendar days to business days.
The exact timing of the aforementioned USCIS Premium Processing
roll-out will depend on whether its standard processing times
increase. USCIS is bound by a legislative requirement that limits
the expansion of premium processing if its standard processing
times increase.
MORE FEES, FEES, FEES!
Both the USCIS and the Department of State (DOS) have proposed
fee increases indicating that additional funding is required to
support services being offered. The following is more detailed
information about the proposed increases with potential timing for
the increases:
USCIS Proposes Substantial Fee Increase
On January 4, 2023, the USCIS commenced the regulatory process
to increase its filing fees for employers who are sponsoring
foreign workers and individuals who are applying for temporary
status or Permanent Resident status (Green Card). While the overall
weighted average fee increase is 40%; some family-based and
employment-based immigration filings will feel the brunt of the
proposed increases.
In the fee increase proposal, the USCIS explains the reason for
the significant increase suggesting, “if USCIS ultimately
received the resources identified in this proposed rule and
subsequently achieves significant efficiency gains, this could
result in backlog reductions and shorter processing times.”
The USCIS processing backlogs increased from 1.4 million cases in
December 2016 (last major adjustment to processing fees) to a
current backlog of 8 million cases as of September 2021.
Proposed Employment-Based Fee Changes
- To support humanitarian programs which have a cost estimate in
excess of $425 million, all employment-based petitions (Forms I-129
and Forms I-140) will be required to pay an Asylum Program Fee of
$600 for each Petition in addition to the regular increased filing
fee.
- The fee for Form I-129 Petition for a Nonimmigrant Worker would
change from a base fee of $460 to varying rates depending on the
type of temporary employment sought: H-1B Workers ($780), L-1
Intracompany Transferee ($1,385), O-1 Extraordinary Workers
($1,055), E-1, E-2, E-3 and TN Treaty Workers ($1,015). The Asylum
Program Fee of $600 would be assessed in addition to these regular
increased filing fees.
- The fee for Form I-539 dependent accompanying family members
would increase from $370 to $620.
- The fee for Form I-765 Employment Authorization would increase
from $410 to $650.
- The fee for the H-1B quota registration would increase to $215
from the current $10.00 fee. This fee increase will not be in place
for the FY2024 H-1B quota registration which as discussed above
will be available in March 2023.
- USCIS also proposes to change the Premium Processing times from
calendar days to business days.
Proposed Permanent Resident Status or Citizenship Fee
Changes
- The fee for Form I-140 Immigrant Petition for Alien Worker
would increase from $700 to $715. The Asylum Program Fee of $600
would be assessed in addition to this regular increased filing
fee.
- Individuals filing Form I-485 Adjustment of Status in the
United States who desire interim employment authorization (EAD) and
international travel permission (Advance Parole) would pay $2,280
per applicant rather than the current fee of $1,225 if age 14 to
78, or $1,140 for persons age 79 and older, or $750/$1,140 for
children under age 14.
- The fee for Form N-400 Application for Naturalization/U.S.
citizenship will increase from $640 to $760.
As an incentive to file eligible applications on-line, USCIS
proposes some slightly lower fee increases for on-line processing
of certain applications.
USCIS estimates the proposed fee rule would generate an
additional $1.9 billion annually to support USCIS staffing and pay
for customer service efforts, technology enhancements (on-line
filings), initial asylum requests at U.S. borders and refugee
resettlement costs. The last adjustment to fees for standard
processing of immigration petitions was December 23, 2016.
Comments on the proposed fee increases are due by March 6, 2023.
USCIS will review the comments and then release a final regulation.
The final regulation will indicate the date on which the increased
filing fees will become effective, unless a court postpones or
prevents the implementation of the new fees.
Update on Proposed Increases to DOS Fees for Consular
Services
On December 28, 2021, the DOS proposed the following increases
to its visa processing fees for nonimmigrant visas, Border Crossing
Cards for Mexican nationals, and for processing a waiver of the
two-year home residence requirements (INA 212(e)) for certain J-1
visa holders:
Proposed changes
- Non-petition-based nonimmigrant visa processing would increase
from $160 to $245 per application. 90% of all nonimmigrant visas
processed by U.S. Consular posts fall into the non-petition
classifications and include visas for visitors (B-1/B-2), students
and exchange visitors (F-1/F-1, M-1/M-2, and J-1/J-2); transit
travelers (C), crew members (D); representatives of foreign media
(I), and Border Crossing Cards (BCCs) for Mexican nationals age 15
or older.
- Petition-based nonimmigrant visa processing would increase from
$190 to $310 per application. These include visas for temporary
workers (H), intracompany transferees (L), worker having
extraordinary ability/achievement (O); athletes, artists, and
entertainers (P); international cultural exchange participants (Q);
and religious workers (R).
- The processing fee for treaty traders (E-1), treaty investors
(E-2) and Australian workers (E-3) and any dependent family members
would increase from $205 to $485 per application.
- The processing fee for a J-1 waiver of the two-year home
residence requirement for certain J-1 visa holders would increase
from $120 to $510.
The DOS received 340 comments on its fee increase proposal and
has not yet released a final regulation indicating the date on
which it plans to implement the fee increase. However, in a
regulatory filing, the DOS indicated that it would like to
implement the new fees in March 2023.
LEGISLATION ENACTED WITH CHANGES IN THE E VISA AND H-2B
PROGRAMS
On December 23, 2022, the President signed FY2023 the James M.
Inhofe National Defense Authorization Act (NDAA), which authorizes
and specifies the Department of Defense’s (DOD) military
activities. Among other provisions, the NDAA changed two provisions
that will impact E-visa eligibility and the H-2B Program.
Change in E-Visa Eligibility
Section 5902 of the FY2023 NDAA grants individuals and companies
with Portuguese nationality the right to apply for E visas.
Additionally, the same section adds a three-year domicile
requirement to the use of “Citizenship by Investment” to
apply for an E visa. To apply for an E-visa, the applicant must be
a national of one of the Treaty Countries under the qualifying
Treaty of Friendship, Commerce, and Navigation or its equivalent.
Certain E-visa Treaty Countries, such as Grenada, allow individuals
to obtain citizenship through financial investment in the country
through “Citizenship by Investment” (CBI). The use of the
CBI allows certain investors in these E-visa Treaty Countries to
become eligible to apply for E-2 visas through investment in
another country. To limit such CBI use, Section 5902 introduces the
limitation that CBI nationals of the Treaty Countries would be
ineligible for the E visas unless they are domiciled in the treaty
country for a continuous period of not less than 3 years at any
point before applying for E visa. This domicile requirement does
not apply to individuals who have previously been granted E
visas.
Extend H-2B Visa Workers’ Eligibility in Guam and the
Commonwealth of Northern Mariana Islands (CNMI)
Section 5901 of the FY 2023 NDAA extends specific H-2B
workers’ eligibility for services in Guam and the Commonwealth
of Northern Mariana Islands (CNMI) for one additional year through
December 31, 2024.
Generally, under the H-2B program, U.S. employers or agents who
meet specific requirements can hire and bring foreign nationals to
the U.S. to fill temporary nonagricultural jobs. One of the
specific requirements is that the job must be temporary; for
example, the job must be in seasonal or intermittent need. However,
since FY 2018, NDAA had exemptions from this “temporary need
requirement” for certain H-2B workers who perform services
related to military realignment or healthcare in Guam and the CNMI.
For eligibility, such H-2B workers’ services or labor in Guam
or the CNMI must be (1) for construction, repairs, renovations, or
facility services; and (2) related to the military realignment in
Guam or the CNMI. Additionally, NDAA extends the H-2B eligibility
to a healthcare worker at a facility that jointly serves members of
the U.S. armed forces, dependents, and civilians in Guam or the
CNMI. Graduates of medical schools coming to perform service or
labor as members of the medical profession are excluded from this
exception for these healthcare workers.
Since the NDAA was created in 2018, it has expanded this
exemption to include the H-2B numerical limit and temporary need
requirement, and FY 2023 extends this exemption to December 30,
2024.
USCIS UPDATES PAROLE PROCESSES FOR CUBANS, HAITIANS,
NICARAGUANS, AND VENEZUELANS
On January 5, 2023, the Department of Homeland Security (DHS)
announced a new procedure by which Cubans, Haitians, Nicaraguans,
and Venezuelans, and their immediate family members outside the
country can request to come to the United States for up to two
years. The stated reason for the new procedure is the need to
reduce irregular migration of Cubans, Haitians, Nicaraguans, and
Venezuelans, and to allow qualifying individuals to lawfully enter
the United States on a case-by-case basis for urgent humanitarian
reasons or significant public benefit. No numerical limit has been
placed on the number of applicants and there is no mention of a
termination date for the program.
To qualify for the program, and be paroled into the US,
beneficiaries must be outside the country, and:
- Have a valid, unexpired passport (including minor
children); - Be able to pay for commercial air travel to U.S. POE and final
U.S. destination; - Have an eligible “supporter” (sponsor) in the U.S.
file Form I-134A with USCIS; - Go through security and public safety vetting;
- Comply with vaccine requirements;
- Meet eligibility criteria;
- Demonstrate that a parole is warranted for significant public
benefit or urgent humanitarian reasons and that a favorable
exercise of discretion is merited.
Certain individuals are not eligible for the procedure. These
include persons with prior orders of removal within the last five
years or persons subject to bars based on prior removal orders. In
addition, persons who have crossed illegally into the US after the
date of this announcement are not eligible, though a single-entry
exception exists if the person was given voluntary departure or
allowed to withdraw the application for admission. Persons who
irregularly crossed the Panamanian or Mexican border after this
date are ineligible, as are children under 18, not accompanied by a
parent.
MFEM News
REGISTER TODAY for the MFEM Immigration
Group’s Complimentary Annual Immigration Seminar on Thursday,
February 23rd
The MFEM Immigration Group will be hosting its next
complimentary immigration seminar on the morning of Thursday,
February 23rd at the DoubleTree Hotel in Arlington Heights,
Illinois. Topics for this year’s seminar will include:
- Is Your Company Ready for the FY2024 H-1B Quota Lottery?
- All Is Not Lost – Viable Options if the H-1B Quota Registration
is Not Selected - Why Is It Taking So Long for the Government to Review
Cases? - Crossroads Between Remote Work and Immigration Rules
- Hot Topics – Managing the Past and Preparing for the
Future - There will also be two Q&A sessions during which time
attendees can ask their immigration questions to one of the MFEM
Immigration Attorneys.
Additional information about the seminar (including how to
register for the seminar) is available in the News and Events
Section of the MFEM website (link).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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