December 11, 2023

Immigration Green Card

Immigration Is Good For You

February 2023 U.S. Immigration Alert – Work Visas

6 min read

Seyfarth Synopsis: U.S.
immigration agencies have started 2023 at full steam and have
issued numerous legal updates. The below will provide a summary of
these updates that occurred in January 2023:

USCIS announced that this year’s cap registration will open
on March 1, 2023 at noon EST and close on March 17, 2023 at noon
EST. Employers should be prepared to submit critical data points
associated with each H-1B registration once the registration period
opens in March. USCIS intends to notify employers of the cap H-1B
registration selections by March 31, 2023. Employers must have an
account online with USCIS as a “registrant” to submit cap
H-1B registrations. Employers can open new registrant accounts on
February 21, 2023. Please see the full client alert here.

As a result of a settlement agreement in Edakunni v.
Mayorkas,
USCIS confirmed that it will concurrently process
L-2 and H-4 I-539 (application to change or extend status) and
I-765 (employment authorization application) applications with the
H-1B or L-1 petitions when filed concurrently. The bundling of
those applications applies to both regular and premium processed
H-1B or L-1 petitions. For example, if the H-1B was filed with
premium processing, and the H-4 (I-539) and H-4 EAD (I-765)
applications were filed with the H-1B petition, then USCIS will
also process the dependent applications with premium
processing.

This new update went into effect on January 25, 2023, and will
last for two years. USCIS has not confirmed if USCIS will
adjudicate pending I-539 or I-765 applications that were filed
concurrently with Form I-129, prior to January 25, 2023. Please see
the full client alert here.

Premium processing is now available for all EB-1C Multinational
Executive and Manager immigrant petitions and all EB-2 National
Interest Waiver (NIW) immigrant petitions. This new update applies
to all new and pending EB-1C and NIW immigrant petitions. The EB-1C
and NIW premium processing filing fee is $2,500, in which USCIS
will process the EB-1C or NIW petition in 45 calendar days.

In this update, USCIS also announced that it expects
to gradually open premium processing to new categories and process
these applications in 30 days:











Case

Cost

Expected Implementation Period

Pending Optional Practical Training (OPT) or
STEM OPT I-765 EAD applications

$1,500

March 2023

All pending and new OPT and STEM OPT I-765
applications

$1,500

April 2023

Pending I-539 applications for F-1, J-1, and
M-1

$1,750

May 2023

All I-539 applications for F-1, J-1,
and M-1

$1,750

June 2023

All other cases that are eligible for premium processing incur a
$2,500 filing fee and are processed within 15 calendar days. There
is no proposed timeline for implementing premium processing for
other I-539 applications, including those in E-2, E-3, H-4, L-2, or
O-3 status.

4. 60-Day Extension for RFE, NOID/NOIR, and Other Cases

USCIS confirmed that it will again extend the 60-day
flexibility through March 23, 2023, to respond to Requests for
Evidence (RFEs), Continuations to Request Evidence (N-14), Notices
of Intent to Deny (NOID), Notices of Intent to Revoke (NOIR), and
other cases, if the request or notice was issued between March 1,
2020, and March 23, 2023.

USCIS will also accept a Form I-290B, Notice of Appeal or
Motion, or a Form N-336, Request for a Hearing on a Decision in
Naturalization Proceedings (Under Section 336 of the INA), if:

  • The form was filed up to 90 calendar days from the issuance of
    a decision USCIS made; and

  • USCIS made that decision between Nov. 1, 2021, and March 23,
    2023.

Notably, USCIS anticipates that, barring changes presented by
the pandemic, this will be the final extension of these
accommodations
. USCIS will announce at a later date if this is
the final 60-day flexibility extension.

5. Expansion of Consular Processing in India

The U.S. Mission in India announced that it has opened nonimmigrant visa
interviews on certain Saturdays for individuals subject to
in-person interviews. The U.S. Embassy in New Delhi and Consulates
in Mumbai, Chennai, Kolkata and Hyderabad have all opened in-person
interview appointments for select Saturdays.

To reduce wait times and open more visa appointment
availability, the Mission stated that it also has taken the
following steps:

  • Implemented remote processing of interview waiver cases for
    applicants with previous U.S. visas;

  • Dozens of temporary consular officers will arrive in India to
    increase processing capacity by March 2023.

  • Increasing the number of consular officers permanently assigned
    to the Embassy and Consulates.

  • More than 250,000 additional B-1/B-2 appointments have been
    recently released.

  • Consulate General Mumbai, which is the busiest consular post in
    India, also extended its weekday operating hours to make space for
    additional appointments.

The Mission also expects that visa processing will be at full
staffing (pre-pandemic levels), by Summer 2023.

6. 48-Month Extension of Green Cards for I-751 and I-829
Applicants

USCIS is extending the validity of Green Cards for
applicants who properly and timely file Form I-751, Petition to
Remove Conditions on Residence, or Form I-829, Petition by Investor
to Remove Conditions on Permanent Resident Status, for 48 months
beyond the card’s expiration date. This change started for Form
I-829 applications on January 11, 2023, and it started on January
25, 2023 for Form I-751 applicants.

This means that the Form I-751 and Form I-829 receipt notices
will extend the validity of a Green Card for 48 months for
individuals who timely filed these applications. The expired green
card and receipt notice serve as proper I-9 documentation and
travel documentation to reenter the U.S. for 48 months beyond the
expiration of the green card. USCIS will also issue new receipt
notices to eligible conditional permanent residents who previously
received notices with an extension shorter than 48 months and whose
cases are still pending.

7. Travelers from China Are Required to Present Negative
COVID-19 Test

All air travelers (two years and older) originating from China
(PRC) must present a negative COVID-19 test. These travelers,
including non-immigrants, U.S. lawful permanent residents, and U.S.
citizens, must present a PCR test or an antigen self-test
administered and monitored by a telehealth service or a licensed
provider and authorized by the Food and Drug Administration (or the
relevant national authority) no more than 2 days before their
departure from the PRC, Hong Kong, or Macau, and show a negative
test result to the airline upon departure.

Due to a significant number of U.S.-bound travelers transiting
in Canada from China, the CDC also announced that passengers
transiting Incheon International Airport, Toronto Pearson
International Airport, and Vancouver International Airport must
provide a negative COVID-19 test if they have been in the PRC in
the last 10 days no more than 2 days before their departure to the
U.S.

More information on this update can be located here.

8. Proposed USCIS Fee Increases

USCIS has proposed a rule that, if implemented, will result in
significant fee increases for many immigration filings. The rule is
currently in the 60-day commenting period that will end on March 6,
2023. USCIS will then respond to the comments and prepare and
publish a final rule. It is expected that USCIS will take several
months to draft and publish the final rule.

The proposed rule contains many changes, including but not
limited to, a new $600 asylum fee that will apply to many
employment-based petitions, additional fees for Advance Parole and
EAD applications when bundled with I-485 applications, and changing
premium processing from 15 calendar days to 15
business days. Below is a chart of the proposed
employment-based fees:































Immigration Benefit

Current Fee

Proposed Fee

Proposed Change (%)

Additional $600 Asylum Program Fee (Yes or
N/A)

H-1B Pre-Registration Fee

$10

$215

2050%

N/A

I-129 H-1B; H-1B1 Petitions

$460

$780

70%

Yes

I-129 L Petitions

$460

$1,385

201%

Yes

I-129 O Petitions

$460

$1,055

129%

Yes

I-129 E and TN Petitions

$460

$1,015

121%

Yes

I-130 Petition

$535

$710

33%

N/A

I-140 Petition

$700

$715

2%

Yes

I-485 (Filed with I-131 and I-765)

$1,225

$2,820

130%

N/A

I-485 (Filed without I-131 and I-765)

$1,225

$1,540

26%

N/A

I-765 Paper Filing

$410

$650

59%

N/A

I-765 Online Filing

$410

$555

35%

N/A

I-539 Paper Filing

$370 (without biometrics)

$620

68%

N/A

I-539 Online Filing

$370 (without biometrics)

$525

42%

N/A

N-400

$640

$760

19%

N/A

Seyfarth will offer more details and insights once more
information is available. Please contact the author or your
Seyfarth attorney if you have any questions.

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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