By: Jacob Campbell & Mahsa Aliaskari

Recent processing time trends at the U.S. Citizenship and Immigration Service (USCIS) are raising concerns for both Employers and F-1 visa holders relying on automatic extensions of work authorization while awaiting the processing of their F-1 STEM Employment Authorization Document (EAD) extension applications.

While USCIS published processing time data reflects that 80% of F-1 EAD applications are processed within 2 months, our observations suggest a notable shift towards longer processing times, ranging from 4 to 6 months. This shift underscores the need for careful consideration and proactive measures among those relying on automatic extensions of work authorization.

Why is a potential increase in processing times problematic? 

  • The extension applications for a STEM EAD may be filed only within 90 days of the current F-1 EAD expiration date.
  • The auto extension based on a timely extension filing is only good for 180 days beyond the initial F-1 EAD expiration date.
  • If USCIS takes up to 6 months to process the extension application and it was filed closer to the expiration date of the initial EAD, there is an increased risk of a gap in work authorization.

Who should apply for STEM Extensions & When?

STEM OPT EAD Eligibility: F-1 students who have completed a degree in a qualifying STEM field are eligible to apply for a STEM OPT extension. The initial OPT period allows for up to 12 months of work authorization, and the STEM extension provides an additional 24 months.

When to Apply: Students should apply for the STEM OPT extension during their initial OPT period. The application can be submitted up to 90 days before the expiration of the initial OPT EAD.

How to Apply: To apply for the STEM OPT extension, students must complete and submit the Form I-765 (Application for Employment Authorization). Along with this form, they need to submit supporting documents, including the Designated School Official (DSO) endorsed Form I-20 and the required fee.

Employment Considerations

While USCIS recently provided extended automatic extensions of certain EAD categories from 180 to 540 days, notably absent from this list were F-1 STEM EADs.  The F-1 EAD automatic extension remains at the standard 180-day auto-extension period.

If the new STEM EAD card is not issued and available for an employee to present as proof of continued work authorization before the 180-day mark, they will be at risk and will have to stop working until they are able to present appropriate documentation confirming work authorization before their employment may continue. 

Options for Consideration to Reduce the Risk of a Gap in Work Authorization

  • File Early! Prepare documents and complete the necessary training plan paperwork and Form I-20 endorsements with the DSO as early as possible to file the extension application early during the 90 day filing window.
  • Premium Processing: STEM extensions can be filed or “upgraded” to premium processing.  This expedite option means USCIS is required to process the STEM extension application within 30 business days.  The USCIS premium processing fee is $1,685.
  • USCIS Case Inquiry: The Seyfarth Global Immigration and Mobility team often assists clients with guidance on leveraging USCIS’ case inquiry options.  If the expedite premium processing fee is not feasible, a case inquiry through the online process available on the USCIS website may help.  While the effectiveness of this service may vary, it is definitely something worth consideration.  

While there are evident improvements in USCIS service levels and processing times, consistency remains a challenge. Anticipating unforeseen circumstances and staying vigilant about trends remains crucial for effective planning and proactive measures to mitigate employment disruptions. The Seyfarth Global Immigration and Mobility team will continue to monitor developments and trends with USCIS. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.

By: Rania Abboud

For many highly skilled international workers, securing an H-1B visa in the United States can be elusive. With this year’s lottery results announced, employers find themselves exploring alternative strategies to retain invaluable talent. Among these strategies is the consideration of relocating talent to Canada, where a range of enticing options await.

Exploring Canadian Alternatives: LMIA-Exempt Work Permits:

Canada offers a variety of LMIA-exempt work permits that could serve as a beneficial alternative for those not selected in the H-1B lottery. Here’s a closer look at two significant LMIA-exempt categories:

  1. Intra-Company Transfers (ICT): Employees of companies that have branches, subsidiaries, or affiliates in Canada may qualify for an intra-company transfer. This is particularly suited to employees at managerial or executive levels, or those possessing specialized knowledge, allowing them to move to Canadian operations without the need for a Labour Market Impact Assessment (LMIA).
  2. C20 Reciprocity: The C20 category under the International Mobility Program permits certain foreign workers to enter Canada to support significant economic and cultural benefits to the country through reciprocal agreements, bypassing the LMIA requirement.

While the processing times for such applications can be lengthy, particularly when managed from the U.S., there is a strategy that can help mitigate delays: Global Skills Strategy (GSS). This initiative offers expedited processing for qualifying skilled workers, with work permit applications processed within two weeks. This is particularly advantageous for individuals who are in the U.S. and whose temporary visa status in the U.S. may be expiring soon.  The work permit options and expedite protocols available may be the answer to providing a swift transition that limits prevents employment interruptions.

Advantages for Employers:

Utilizing LMIA-exempt pathways like ICT or C20 offers several benefits for multinational corporations:

  • Continuity and Efficiency: Transfers under these categories help maintain continuity in projects and leverage specialized knowledge which might be lost otherwise due to U.S. visa limitation. 
  • Strategic Growth: Establishing a stronger presence in Canada allows an avenue for expansion into North American markets more effectively.
  • Simplified Processes: LMIA exemptions streamline the legal and administrative burdens associated with international employee transfers.

For key talent in the U.S. who are not selected in the FY2025 H-1B CAP lottery who also do not qualify for any other U.S. work visa, relocating to Canada using LMIA-exempt work permits presents a promising alternative. Options like intra-company transfers and the C20 reciprocity program, coupled with GSS expedited processes, companies can retain critical talent and individuals can continue their professional journeys without major disruptions.

For additional information, we encourage you to contact the author of this article or a member of Seyfarth’s Global Immigration and Mobility team.

By: Rachel V. See and Annette Tyman

Seyfarth Synopsis: On April 29, 2024, the Department of Labor published extensive guidance on the use of artificial intelligence in hiring and employment. While the guidance is addressed to federal contractors, all private-sector employers using or considering using artificial intelligence should pay attention. The guidance makes clear that long-standing nondiscrimination principles fully apply to AI and outlines “Promising Practices” designed to mitigate AI risks in employment, including the risk of unlawful bias from the use of AI. While not a binding standard, the Department of Labor’s issuance of these “Promising Practices” demonstrates regulators’ evolving expectations surrounding employers’ use of AI.

This blog post first appeared as a legal update.

President Biden’s comprehensive Executive Order on AI, issued in October 2023, directed multiple federal agencies to issue AI-related guidance.[1] As part of this “whole of government” approach, the Department of Labor was specifically tasked with publishing guidance for federal contractors on “nondiscrimination in hiring involving AI and other technology-based hiring systems.”

The April 29 AI guidance issued by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) consists of two parts: (1) a Q&A section addressing how OFCCP will apply existing nondiscrimination laws to AI tools, and (2) a list of “Promising Practices” for the development and use of AI in employment.

While the Department of Labor’s guidance is specifically addressed to federal contractors, it has far-reaching implications for employers generally, not just federal contractors. Consistent with the EEOC’s position, the guidance makes clear that long-standing nondiscrimination principles fully apply to AI, and the “Promising Practices” represent OFCCP’s attempt to capture best practices for mitigating AI risks in employment, drawing from the prior work of stakeholders in the responsible AI ecosystem. While not a binding standard, OFCCP’s issuance of these “Promising Practices” represents a significant marker of the evolving expectations surrounding employers’ use of AI.

Applying Existing Laws to AI: OFCCP Reinforces Foundational Principles

In the Q&A portion of the guidance, OFCCP makes clear that federal contractors are fully responsible for affirmatively ensuring their AI tools comply with existing nondiscrimination laws. The agency also emphasizes federal contractors’ obligations to maintain records related to AI tools, and reminds contractors that their obligation to provide reasonable accommodations extends to the contractor’s use of automated systems. OFCCP also explains how it will use its existing authorities to investigate federal contractors’ use of AI in employment decisions. Key takeaways include:

  • AI tools can constitute “selection procedures” subject to OFCCP’s existing regulations. Consistent with prior statements from OFCCP in 2019[2] and the EEOC in May 2023,[3] OFCCP again emphasizes and confirms that AI-based tools used to make employment decisions can be “selection procedures” under the Uniform Guidelines on Employee Selection Procedures (UGESP) from 1978, and validation processes required under UGESP.
  • Reasonable accommodations obligations fully apply. Federal contractors must make reasonable accommodations to ensure individuals with disabilities have equal access to jobs, including in the contractor’s use of AI-based selection procedures.
  • Employers are responsible for their AI tools, whether they developed them themselves or if they are using an AI vendor. OFCCP unambiguously warns that federal contractors cannot delegate or avoid their nondiscrimination and affirmative action obligations by using third-party AI products. During an OFCCP audit, contractors must be able to provide the information and records needed for OFCCP to assess compliance, including information about the impact and validity of AI-based selection procedures. In addition, information regarding the design of tool as well as information regarding whether alternative approaches were considered and tested for adverse impact may be requested during audits.  

While these principles are not new, OFCCP’s firm stance serves as a call-to-action for employers to proactively examine their use of AI. As OFCCP Acting Director Michelle Hodge recently warned, federal contractors “can’t just pull something off the shelf and decide to use it” without ensuring compliance with OFCCP regulations. Just like federal contractors should not rely solely on an affirmative defense of, “I thought my AI vendor was handling that,” private-sector employers should be mindful of these evolving standards and how these defenses may be received if accusations of unlawful bias from the use of AI arise. Now is an excellent time for employers using AI – whether or not they are federal contractors – to work closely with trusted legal counsel to develop a comprehensive approach to AI risk management.

OFCCP’s “Promising Practices” Reflect an Evolving Consensus on AI Risk Management

The “Promising Practices” portion of OFCCP’s guidance outlines recommendations to help federal contractors “avoid potential harm to workers and promote trustworthy development and use of AI.” These recommendations span the AI lifecycle, from development to deployment and monitoring, and include “big picture” concepts like the creation of internal AI governance frameworks. Many of the practices identified in the “Promising Practices” closely align with concepts from the National Institute of Standards and Technology’s AI Risk Management Framework.

OFCCP’s guidance acknowledges that these “Promising Practices” are “not expressly required,” and that it is “not an exhaustive list but rather an initial framework” and further cautions that “the rapid advancement and adoption of AI in the employment context means that these practices will evolve over time.”

Despite their non-mandatory nature, employers should not ignore OFCCP’s guidance. In that regard, the impact of OFCCP’s April 29 “Promising Practices” on employer behavior may follow a trajectory similar to the EEOC’s 2017 “Promising Practices” for preventing harassment, which had a significant impact on the way employers thought about harassment prevention. By 2017, some proactive employers had already implemented policies and procedures aligned with the EEOC’s recommendations. But with the #MeToo movement contemporaneously gaining momentum in late 2017, increased public awareness of harassment and demand for action prompted further employer action. This provided the impetus for some employers to re-evaluate and revise their harassment policies and training programs to align with the EEOC’s recommendations. The ultimate goal was to prompt the implementation of more proactive, comprehensive, and systemic approaches to preventing harassment, rather than relying solely on reactive measures like complaint reporting and investigations.

OFCCP may be hoping that its “Promising Practices” on AI will follow a similar trajectory. Like the EEOC’s 2017 effort on harassment, OFCCP’s AI “Promising Practices” did not emerge from thin air; they reflect principles identified by various stakeholders, contain similar themes articulated in the White House’s recently issued guidance to federal agencies, emphasizing the need for “stakeholder engagement, validation and monitoring, and greater transparency” in the federal government’s own use of AI, and closely align with NIST AI RMF, which has gained significant traction as a foundational resource for organizations seeking to manage AI risk.

Key themes and recommendations in OFCCP’s “Promising Practices” include:

  • Transparency and notice to employees and applicants. OFCCP advises federal contractors to provide clear notice about their use of AI, what data is being collected, and how employment decisions are being made.
  • Stakeholder engagement. OFCCP advises federal contractors to consult with employees and/or their representatives in the design and deployment of AI systems.
  • Fairness assessments and ongoing monitoring. OFCCP advises federal contractors to analyze AI tools for discriminatory impact before use, at regular intervals during use, and after use. Where issues are identified, OFCCP advises employers to take steps to reduce adverse impact or consider alternative practices. While some of this advice may sound obvious to those experienced in AI risk management, OFCCP’s inclusion of these concepts emphasizes their importance.  Likewise, OFCCP also advises employers to ensure meaningful human oversight of AI-based decisions. While OFCCP does not provide greater clarity regarding how it might be defining “meaningful human oversight,” the inclusion of this concept in OFCCP’s “Promising Practices” invites contractors and employers to examine and consider how human oversight mechanisms may or may not be present in their existing AI processes.
  • Documentation and recordkeeping. OFCCP advises federal contractors to retain information about the data used to develop AI systems, the basis for decision-making, and the results of any fairness assessments or monitoring.
  • Vendor management. OFCCP advises federal contractors to carefully vet AI vendors. Among other things, OFCCP’s “Promising Practices” discuss the desirability of verifying the source and quality of the data being collected and analyzed by the AI system, the vendor’s data protection and privacy policies, and critical information about the vendor’s algorithmic decision-making tool, such as the screening criteria, the predictive nature of the system, and any differences between the data used for training and validation and the actual candidate pool. OFCCP also discusses the desirability of having access to the results of any assessment of system bias, debiasing efforts, and/or any study of system fairness conducted by the vendor and cautions that relying on vendor assurances alone is not enough – emphasizing the importance of being able to verify key information about the vendor’s practices.
  • Accessibility for individuals with disabilities. OFCCP advises federal contractors to ensure AI systems are accessible, allow for reasonable accommodation requests, and accurately measure job-related skills regardless of disability.

As federal contractors or other employers consider whether changes to their AI risk management practices are warranted in light of OFCCP’s issuance of these “Promising Practices”, contractors and employers should be mindful of legislative activity mandating or otherwise incentivizing employers to implement an AI risk management framework similar to the “Promising Practices” described in OFCCP’s guidance.  OFCCP’s “Promising Practices” are not mandatory, but aspects of them may soon be mandatory under future legislative or regulatory efforts.[4]

Implications for Employers

Federal contractors and private-sector employers should expect continued coordination between OFCCP, EEOC and other enforcement agencies on AI issues. While OFCCP’s April 29 AI guidance is addressed to federal contractors, OFCCP’s “Promising Practices” reflect progress toward regulatory consensus regarding AI risk management, and their issuance invites both federal contractors and other employers to evaluate their existing AI risk management practices and to consider whether further proactive processes may be warranted or desirable.

We will continue to monitor these developing issues. For additional information, we encourage you to contact the authors of this article, a member of Seyfarth’s People Analytics team, or any of Seyfarth’s attorneys.


[1] The Department of Labor is one of several federal agencies directed by President Biden to issue AI-related guidance, and the White House’s April 29 statement summarizes the federal government’s progress towards meeting the various deadlines set forth in President Biden’s executive order. Seyfarth attorneys have written about the Wage Hour Division’s Field Assistance Bulletin addressing the application of the Fair Labor Standards Act to use of artificial intelligence and other automated systems in the workplace, also issued on April 29. See https://www.wagehourlitigation.com/2024/05/dol-issues-guidance-on-wage-hour-risk-posed-by-artificial-intelligence/

[2] See https://www.dol.gov/agencies/ofccp/faqs/employee-selection-procedures

[3] See https://www.eeoc.gov/laws/guidance/select-issues-assessing-adverse-impact-software-algorithms-and-artificial

[4] For instance, the version of Connecticut SB2 passed on April 24, 2024 by the Connecticut Senate specifically requires deployers of “high-risk” AI systems to implement a risk-management policy and program, and makes specific reference to the NIST AI RMF. Likewise, legislation introduced in California (AB 2390), New York (S5641A), Illinois (HB 5116), Rhode Island (H 7521), Washington (HB 1951) contain similar language mandating AI deployers to implement a governance program that contains reasonable administrative and technical safeguards to map, measure, manage, and govern the reasonably foreseeable risks of algorithmic discrimination – concepts that are core to the NIST AI RMF. Additionally, on May 3, 2024, Colorado SB 205, a bill with similar legislative language, passed the Colorado Senate. 

By: Mahsa Aliaskari and Daniela Mayer

As noted in our post in February 2024, U.S. Citizenship and Immigration Services (USCIS) issued a final rule updating the H-1B cap registration process and creating a beneficiary-centric selection process. The rule took effect this year with the FY25 H-1B cap registration period, which ran from March 6, 2024, to March 22, 2024.

With the surge in cap lottery submissions since the introduction of online registration in 2020, we’ve witnessed a persistent decline in selection rates for the H-1B cap lottery, as individuals submit multiple registrations to enhance their chances of success.  However, recent updates from USCIS regarding selection numbers for FY25 indicate a potential positive shift, with fewer “eligible registrations” reported. Whether this change is attributed to the implementation of new rules, prevailing market dynamics, or a blend of both factors is yet to be determined. 

On April 30, 2024, USCIS announced that a sufficient number of electronic registrations were received for the FY 2025 H-1B cap season with a selection rate of approximately 26%. USCIS announced that 470,342 eligible registrations were received from 52,700 employers, and USCIS selected 120,603 registrations. In the update, USCIS notes that they “saw a significant decrease in the total number of registrations submitted compared to FY 2024, including a decrease in the number of registrations submitted on behalf of beneficiaries with multiple registrations.”

A closer look at their numbers reflect similar volume in companies and people between FY 2025 and FY 2024, where we can see the impact of the rule is in the number of eligible registrations:

  • The number of unique beneficiaries this year for FY 2025 (approximately 442,000) was comparable to the number last year for FY 2024 (approximately 446,000).
  • The number of unique employers this year for FY 2025 (approximately 52,700) was also comparable to the number last year for FY 2024 (approximately 52,000).
  • The number of eligible registrations, however, was down dramatically for FY 2025 (470,342) compared with FY 2024 (758,994) — a 38.6% reduction.
  • Overall, we saw an average of 1.06 registrations per beneficiary this year in FY 2025, compared to 1.70 for FY 2024.  

Source: H-1B Electronic Registration Process | USCIS

As USCIS aimed to curb abuse in the registration process, the beneficiary-centric selection method seems to have yielded a notable 38.6% decrease in eligible registrations, marking a positive and favorable development.  All eligible CAP cases from the lottery selections must be filed by June 30, 2024.  Stay tuned to our Seyfarth Global Immigration & Mobility Blog for updates.

https://www.bigimmigrationlawblog.com

By: Valerie Salcido, Mahsa Aliaskari, and Jake Campbell

Seyfarth Synopsis: U.S. Citizenship and Immigration Services (USCIS) recently announced a Temporary Final Rule extending the automatic extension period for certain Employment Authorization Document (EAD) renewal applicants from 180 days to 540 days.

In alignment with ongoing efforts aimed at streamlining operations and enhancing processing efficiency, the U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) that extends automatic work authorization for certain Employment Authorization Document (EAD) renewal applicants from 180 days to 540 days. While not all EAD categories will benefit from this TFR, it promises significant relief to a substantial number of employees. The extension benefits certain EAD applicants whose EAD renewal applications were on or after October 27, 2023 and remain pending; and new renewal application filed until September 30, 2025.

Key Takeaways:

  1. Who benefits?
  • Applicants who timely and properly submitted their Form I-765 applications on or after October 27, 2023, and the application remains pending as of April 8, 2024.
  • Applicants who timely and properly file their Form I-765 applications between April 8, 2024 and September 30, 2025.
  1. Who is eligible for the 540-day auto-extension?
  • Timely and accurately filed Form I-765 for EAD renewal, i.e. filed and received by USCIS before the current EAD expires
    • Note exception for certain applicants with Temporary Protected Status (TPS) or a pending TPS application.
  • EAD category must be eligible for an automatic extension, and the renewal is in the same category
    • Note exception for A12 or C19 categories – these are interchangeable.
  1. Are there exceptions to the 540 day auto-extension?
  • Spouses – Auto extension is limited for H-4, E, and L-2 dependent spouses to the expiration date of their I-94. If the I-94 expires before the 540-window ends, then the auto-extension will also end on the I-94 expiration date.
  • Students – F-1 STEM OPT EAD extension applicants do not benefit from this TFR. The auto extension for this EAD category will remain at 180 days.

Categories Eligible for Automatic Extensions

The below is a non-exhaustive list of categories eligible for a 540-day automatic extension:

Eligible Categories
(c)(9)Pending Adjustment of Status under Section 245 of the Act
(c)(26)Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status.
(a)(17)Spouse of principal E nonimmigrant with an unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status
(a)(18)Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status
(a)(3)Refugee
(a)(5)Asylee
(a)(12)Temporary Protected Status (TPS) Granted
(c)(8)Asylum Application Pending
(c)(19)Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”.

More information on the eligible categories can be found here.

Proof of an Automatic Extension

Employers should inform their I-9 compliance team and refer to this webpage when determining whether a Form I-797C, Notice of Action, if presented with the facially expired EAD, is acceptable to verify work authorization for Form I-9. Employers may attach a copy of the webpage with the employee’s Form I-9 to document the extension of employment authorization and/or EAD validity. For guidance on completing Form I-9 covering automatic extensions and proof of employment authorization for hiring, rehiring, and reverification, as well as all other Form I-9-related guidance, please visit I-9 Central.

Seyfarth Shaw will continue to monitor any further developments. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.

By: Daniela Mayer and Mahsa Aliaskari

In light of prolonged Department of Labor (DOL) processing times and recent regulatory settlements involving the DOL and Department of Justice, employers are reevaluating their approaches to securing permanent residence (“green card”) sponsorship for essential talent. While the Program Electronic Review Management (PERM) process has been a staple for many U.S. companies, its multi-phase nature, extensive testing of the U.S. labor market, and mounting processing delays have rendered it increasingly impractical and costly. Notably, the DOL phase alone can now stretch up to nearly two years, causing significant disruptions, particularly in cases of position changes or company-wide restructuring.

These challenges have spurred companies to reassess their green card strategies, seeking more efficient and adaptable alternatives. One such avenue that warrants attention amidst PERM’s evolving landscape is the National Interest Waiver (NIW).

Traditionally, employers have gravitated towards PERM for its structured approach.  The lengthy processing times and often unrealistic nature of the PERM program are the catalyst for reassessing sponsorship programs and green card strategies for securing and retaining key talent.

This is where the NIW presents a compelling alternative, especially for companies with talent pools encompassing Engineers, Scientists, AI or Machine Learning Architects, or Pilots across industries. The NIW’s criteria, which focus on the potential national impact of an individual’s work, offer a departure from conventional visa categories.

Unlike the extraordinary ability visa category, the NIW does not solely prioritize individuals at the pinnacle of their respective fields, and broadens the scope of eligible candidates and fosters innovative strategies for talent acquisition and retention.

This shift in focus is particularly pertinent as well for companies operating within critical sectors of the U.S. economy. Employees with STEM backgrounds, whose work carries significant current or future implications for national interests, may find the NIW pathway particularly suitable.

The Seyfarth Immigration team specializes in partnering with companies to assess and optimize their immigration strategies. Against the backdrop of evolving PERM challenges and the NIW’s potential, there exists an opportunity to recalibrate sponsorship programs. Should you have any questions, please e-mail the authors directly.

On the morning of February 14, 2024, several clients reached out after encountering issues with the photo matching tool in E-Verify. They reported discrepancies where the photos transmitted by E-Verify did not align with the photos on the employees’ documents. It became increasingly clear that E-Verify was not rendering the correct photos from the government’s databases. Instead, random photos were appearing on the photo-match screen. We quickly investigated, reaching out to several electronic I-9 vendors, and clients, to assess the scope of the issue. After confirming that the issue was widespread, we informed U.S. Citizenship and Immigration Service (USCIS). Fortunately, the agency was able to quickly resolve the problem.

How to Handle Affected Photo Match Cases:

Cases with erroneous photos should be closed, and a new E-Verify submissions should be made to ensure the correct images are displayed in order to complete the photo match process.

Employers utilizing electronic I-9 systems are encouraged to closely collaborate with their vendors to understand the resubmission process and identify any necessary actions on their part. Moreover, employers should verify that cases did not mistakenly receive a Tentative Nonconfirmation (TNC) based on an erroneous photo match.

What Is E-Verify?

E-Verify, established under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), is an online platform enabling employers to check the work eligibility of their employees electronically. It does not replace the Form I-9.

E-Verify requires employers to input details from an employee’s Form I-9, into the system. This data is then digitally matched against records held by the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA), with responses typically provided in seconds to confirm whether the employee is authorized to work or if further steps are necessary to resolve the case.

The program is jointly managed by the SSA and USCIS. USCIS plays a pivotal role in ensuring adherence to U.S. immigration laws by offering support and training for the E-Verify program, assisting users, conducting outreach activities, and pioneering technological advancements for verifying employment eligibility. E-Verify is voluntary unless mandated by the E-Verify Federal Contractor Rule or individual state regulations.[1]

 What is the Photo-Matching Tool?

When using E-Verify, the system will guide users to perform a photo comparison process. This involves checking certain documents provided by the employee against a corresponding photo shown during the E-Verify case creation. This step is crucial for verifying that the document presented by the employee aligns with the data accessible to the DHS.

There are four specific List A documents that activate the photo matching feature: 1. the U.S. passport, 2. the passport card, 3. the Permanent Resident Card (also known as Form I-551), and 4. the Employment Authorization Document (Form I-766). Upon the presentation of any of these documents by an employee, employers are required to make copies of both sides of the document (for a U.S. passport, this means copying the Passport ID page and the Passport Barcode page) and keep these copies with the employee’s Form I-9. If the details on the employee’s Form I-9 match with DHS records, E-Verify will display a photo from the document that was presented.

Employers must compare the photo E-Verify displays against the actual document’s photo or a photocopy of it. Employers should not use the E-Verify photo to compare against the employee themselves. That comparison should have already been conducted during the Form I-9 verification process, before initiating the E-Verify case. The aim is to confirm the photos are “reasonably identical” with allowances for minor differences due to the document’s condition or variations in monitor quality.

It’s important to note that E-Verify photos include a watermark to deter misuse. A genuine document provided by the employee should not have this watermark. However, the absence of a watermark in the employee’s document photo does not discredit its authenticity.

The Seyfarth Immigration Compliance and Enforcement team regularly trains companies in E-Verify protocols, develops policies to ensure E-Verify compliance anti-discriminatory processes, and audits current systems in an effort to minimize liability and recommend improvements. We also focus on the interplay between electronic systems and E-Verify. With increasing information sharing between government agencies, it is more important than ever to ensure that those responsible for managing the E-Verify process understand the timelines involved, the process, and the need to treat all employees fairly. Please contact the author at Dlurie@seyfarth.com for more information.


[1] For more information on state E-Verify regulations, current Seyfarth clients may reach out to Dlurie@seyfarth.com for information related to our 50 State E-Verify Mandate survey.

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By: Jason E. Burritt, Victoria Ma, Gabriel Mozes, Mia Batista, and Brooke K. Gary

Seyfarth Synopsis: U.S. Citizenship and Immigration Services (USCIS) issued a final rule on the upcoming H-1B cap registration, creating a beneficiary-centric selection process, starting this FY 2025 H-1B cap registration period, which will run from March 6, 2024 to March 22, 2024.

1. FY 2025 H-1B Cap Registration Period

USCIS announced that this year’s cap registration will open on March 6, 2024, at noon EST and close on March 22, 2024, at noon EST.  Employers should be prepared to submit critical data points associated with each H-1B registration once the registration period opens in early March, which will occur through USCIS’ newly developed online organizational account system, launching on February 28, 2024. Employers and their legal representatives can collaborate on preparing H-1B cap registrations in the new system.

2. H-1B Cap Registration Final Rule: Integrity Measures

A. Background

On October 23, 2023, the Department of Homeland Security (DHS) issued its long-anticipated Notice of Proposed Rulemaking (NPRM) on modernizing the H-1B program. One focus within this proposal aimed at improving integrity measures by addressing H-1B cap registration abuse and changing the way USCIS selects registrations to prevent employers from manipulating the registration process. As a reminder, USCIS received over 780,000 H-1B cap registrations in March 2023 (up more than 300,000 from the prior year) and more than 52% of these registrations were received from beneficiaries who had two or more registrations.  In this Notice, DHS emphasized its interest in ensuring that H-1B allocations benefit petitioners who truly intend to employ the foreign worker and not those who “game” the selection process. On January 30, 2024, USCIS announced the H-1B Registration final rule, making some of the provisions proposed in the October 2023 NPRM final.

B. H-1B Cap Registration Updates

For the FY 2025 H-1B cap registration and beyond, the selection process will be beneficiary-centric, rather than a registration-centric process. USCIS will select registrations by unique beneficiary rather than by registration. Through these changes to the registration process, USCIS aims to ensure that each beneficiary has the same chance of selection, regardless of the number of  registrations submitted on their behalf.

Registrants – meaning employer petitioners — must include the foreign national’s valid passport information or valid travel document information, and cannot use more than one passport or travel document. In addition, the document must be the same document the beneficiary intends to use to enter the United States if issued an H-1B visa. The only narrow exception to this provision is that a travel document may be used in lieu of a valid passport where a foreign national cannot obtain passport, for example stateless individuals and refugees.

Following registration, each unique beneficiary will be entered into the selection process only once, regardless of the number of many registrations submitted on their behalf. If a beneficiary is selected, each registrant – again, meaning employer petitioner — who submitted a registration on that beneficiary’s behalf will be notified and will be eligible to file a petition on that beneficiary’s behalf during the applicable petition filing period.

The H-1B petition must be supported by the same identification document provided in the registration. However, USCIS has discretion to allow changes, including but not limited to, a legal name change due to marriage, change in gender identity, or a change in passport number or expiration date due to renewal or replacement, between registration and filing of the petition.

C. Failure to Follow New Integrity Rules

Under the new system, a beneficiary may not be registered under more than one passport or travel document. If USCIS determines that multiple registrations are submitted for the same beneficiary using different identifying information, USCIS may find those registrations invalid and deny or revoke the approval of that beneficiary’s filed H-1B petition.

In addition, the Notice codifies USCIS’s authority to deny or revoke an H-1B petition where the statements in the petition, H-1B registration, labor condition application (LCA), or temporary labor certification are found to be inaccurate, fraudulent, or misrepresented, which includes the attestations on the H-1B registration, through which registrants confirm a true offer of employment.  

3. Conclusion

These changes to the cap registration process seek to prevent fraud and misuse of the H-1B cap registration system. The new final rule will both strengthen integrity and create a more equitable process for beneficiaries, while also providing a pathway for beneficiaries with multiple job offers.

Employers should act now to identify and begin preparation for the H-1B registration process for candidates or current employees who require H-1B sponsorship. In addition, employers should work with their proposed cap beneficiaries to ensure that they have valid passports or travel documents and prepare for the registration.

Seyfarth will continue to offer insights and updates to the FY 2025 H-1B cap process.  Please reach out to the authors or your Seyfarth attorney if you have any questions.

By: Jason Burritt, Steven Brouillard, Valerie Salcido, and Victoria Ma

Seyfarth Synopsis:  Effective April 1, USCIS will implement significant filing fee increases, in particular for petition and applications related to employment-based benefits.

U.S. Citizenship and Immigration Services (USCIS) published a final rule, which will take effect on April 1, 2024, to adjust certain immigration and naturalization benefit request fees. Through this rule, USCIS will implement substantial fee increases especially for employment-based petitions, reshaping the cost landscape for immigration benefits.

Key Takeaways:

1. H-1B Cap Registration Fee Increase: USCIS will substantially increase the H-1B cap registration fee from $10 to $215 per registration, a 2050% surge, effective March 2025 for the FY 2026 cap season and beyond. The fee of $10 remains in effect for this year, the FY 2025 cap season. This change is part of USCIS’s initiative to align fees with the operational costs linked to the administration of the H-1B registration system.

2. New Asylum Program Fee for Employment-Based Visas: USCIS will implement a $600 Asylum Program Fee for I-129 and I-140 petitions, with a reduced fee of $300 for small employers, defined as those with 25 or fewer full-time employes, and exempting nonprofit employers.

3. Fee Changes for Form I-129, Form I-140, and Form N-400: USCIS will significantly change the filing fees associated with various immigration forms, particularly impacting Form I-129, Petition for a Nonimmigrant Worker, Form I-140, Immigrant Petition for Alien Workers, and Form N-400, Application for Naturalization. Please find below a detailed breakdown of the fee changes and their implications:

Form I-129:

Under the current fee schedule, USCIS requires the same $460 filing fee for all classifications using form I-129, including for example H-1B, L-1, TN and E-3. Through the final rule, USCIS will impose different filing fees for different classifications, as fully outlined in the chart below.  For example, the Form I-129 filing fee for an H-1B petition will rise by 70%, reaching $780 from $460, and the L-1 petition filing fee will rise by 201%, reaching $1,385 from $460. Certain exemptions and reduced fees may apply to small employers and nonprofit organizations, providing a nuanced fee structure based on the size and nature of the petitioner. These increases do not include the new Asylum Program Fee described above. In addition, for certain H-1B and L-1 petitions, the USCIS Fraud Prevention and ACWIA fees remain unchanged.

Form I-140:

USCIS will impose a nominal 2% increase from $700 to $715 for I-140 petitions. These increases do not include the new Asylum Program Fee described above.

Form N-400:

The USCIS fee rule includes adjustments to the filing fee for Form N-400, the application for naturalization.  Under the revised fee schedule:

  • Form N-400, Application for Naturalization (online filing), previously priced at $640, will increase by 11% to $710.
  • Form N-400, Application for Naturalization (paper filing), formerly priced at $640, will increase by 19% change to $760.

4. Premium Processing Timeline Change: USCIS will extend the premium processing adjudication period from 15 calendar days to 15 business days, providing USCIS more time to adjudicate petitions, which will impact planning for immigration filings. In addition, the new fees for premium processing requests will take effect on February 26, 2024. For more details, please see our client alert–U.S. Citizenship and Immigration Services Increases Premium Processing Fees–here.

5. New Process and Fees for Adjustment of Status Applications: USCIS will implement a fee of $1,440 for most adjustment of status applications, featuring a reduced fee of $950 for applicants under 14 applying concurrently with a parent. This fee structure marks a departure from the initially proposed $1,540 adjustment filing fee, retaining USCIS’s tradition of offering reduced fees for applicants filed by children.

Notably, the agency will unbundle I-765, Application for Employment Authorization (EAD) and I-131, Application for Travel Document (Advance Parole, or AP) fees from the adjustment of status filing fee. Under the current fee structure, the adjustment fee covers associated EAD and advance parole applications. The new fee schedule mandates separate charges for these documents.  USCIS will charge a reduced fee of $260 for EAD applications filed concurrently with the adjustment application, and for EAD renewals during the pendency of the adjustment. Applicants, however, will pay $630 for initial AP and subsequent renewals, with no discounts for concurrent filing with adjustment applications or renewals during the adjustment process.

Summary of New Fees for Common Employment-Based Petitions:

The below chart details current and proposed fees for common employment-based petitions. It excludes statutory fees. Employers will be subject to the following new fees for common employment-based and related application types as of April 1, 2024:


*The percentage reflects the change from the current base filing fee, exclusive of separate biometrics fee, which will now be included in the new base filing fee.

**For adult applicants, exclusive of separate biometric fee, which will now be included in the new base filing fee.

***Adjustment of status applicants will pay half the standard I-765 fee if they paid the full fee for a concurrently filed or pending adjustment application.

What Employers Could Do to Prepare for the Change:

Based on the response to the 2020 Final USCIS Fee Rule, there is good reason to expect that one or more court challenges will be brought against this newest rule, which could delay or ultimately prevent its implementation. Nevertheless, sponsoring employers must anticipate the budget impact, consider the extended premium processing timeline, and familiarize themselves with updated USCIS forms that will be mandatory as of April 1, 2024. We encourage clients to work with your Seyfarth Shaw legal team to submit cases before April 1 to benefit from the current fee structure and form editions. Strategic planning is crucial amid this transformative adjustment in the immigration landscape.

Seyfarth Shaw will continue to monitor any further developments. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.

By: Weija (Victoria) Ma

Seyfarth Synopsis: Department of Homeland Security (DHS) published a final rule to increase premium processing fees. The new fees will start on February 26, 2024.

On December 27, 2023, USCIS announced an inflation adjustment to premium processing fees effective February 26, 2024.

Pursuant to the USCIS Stabilization Act, codified through the USCIS Stabilization Rule by the inflationary adjustment calculation provided by INA 286(u)(3)(C), 8 U.S.C. 1356(u)(3)(C), DHS possesses the authority to adjust the premium processing fees charged by USCIS on a biennial basis.

DHS will increase the fees reflecting the 12.3% increase in the Consumer Price Index for All Urban Consumers (CPI-U) from June 2021 to June 2023. The fee increases are as follows:

Form (Classification)Previous FeeNew Fee
Form I-129, Petition for a Nonimmigrant Worker (All available Form I-129 classifications, except as noted below)$2,500$2,805
Form I-129, Petition for a Nonimmigrant Worker (H-2B or R-1 nonimmigrant status)$1,500$1,685
Form I-140, Immigrant Petition for Alien Worker$2,500$2,805
Form I-539, Application to Extend/Change Nonimmigrant Status$1,750$1,965
Form I-765, Application for Employment Authorization (F-1 Optional Practical Training and F-1 STEM Optional Practical Training Extension)$1,500$1,685

Companies should include these new fee increases for budgeting purposes. Please note that individuals and companies may only request premium processing if their classification is eligible for premium process service. Eligible classifications can be found here.

Seyfarth will continue to monitor and report on any new developments in this area.  If you have any questions, please feel free to reach out to the author or your Seyfarth attorney.