By: Nelli Shevchenko

The U.K. Home Office has updated the Employer’s Guidance on Right to Work Checks on 28 February 2023. The guidance contains important information about obligations and compliance processes for UK right to work applications made by UK-based employers. Changes include clarifications on eVisa and BRPs checks, use of ID Service Providers, and clarifications of documents for certain status holders (students).

  • eVisa and pending applications

New changes are also introduced to enable some individuals with outstanding, in-time applications (for permission to stay in the UK, or an appeal, or Administrative Review (3C leave)) to prove their right to work using the Home Office online checking service. Previously such people could only rely on the Employer Checking Service, which could take several days to process. Home Office online checking service will speed up the process to establish person’s right to work in the UK for this category.

  • Clarification on evidence for employing students (Annex B)

The guidance now provides additional information on what evidence employers should consider to obtain from the relevant educational institution in relation to term times for the employees who hold Student visa.  These additional documents are important to establish a statutory excuse for all student employees, because they ensure that the students do not take up employment that is in breach of the “right to work” conditions of their Student Visa and that they are permitted to undertake the work in question. The new wording states that:

‘[t]he dates should be provided by the sponsoring education provider, either directly or indirectly if the student is providing a letter or email, they have received from their sponsoring education provider setting out the required details. It would be for you, as the employer, to determine if the information provided is sufficient, whether received from the sponsoring education provider directly or via the student. For instance, where information showing course dates on the education provider’s website differs from that in any letter received, you may wish to seek further clarification.’

The onus is therefore on the employer to ensure that the information provided is a genuine reflection of the student employee’s right to work conditions, and it is important to check that the information provided is coming from the educational provider. Whilst the official website pages are commonly used, it is highly advisable that a letter confirming the person’s individual terms dates covering the full period of employment is obtained and retained.

  • Information on short-dated Biometric Residence Permit cards (BRPs)

Other  new changes in line with the growing number of U.K.  eVisa holders include: confirmation that an employer should not presume that BRPs with an expiry date of 31 December 2024 are issued in error (where the individual has permission to stay ending after this date). The online right to work check should display the correct expiry date of the relevant immigration permission.

  • Use of ID Service Providers (IDPS)

In relation to checks using an Identity Service Provider (IDSP), the guidance states that some providers offer services in relation to manual checks of physical documents or checks via the online service. The guidance makes it clear that ‘other than where you use an IDSP expressly for right to work checks of British or Irish citizens with a valid passport (or Irish passport card), it is not possible to establish a statutory excuse against liability for a civil penalty if the manual document-based check, or online service right to work check, is performed by an IDSP.’

Employers should therefore be aware that they cannot outsource the Right to Work checks in the UK to IDPS completely. Companies must still conduct the checks themselves on all employees who are not British or Irish citizens.

By: Victoria Ma

Seyfarth Synopsis: In its continued efforts to increase efficiency and reduce burdens to the overall immigration system, U.S. Citizenship and Immigration Services (USCIS) announced the expansion of premium processing for certain F-1 students seeking Optional Practical Training (OPT) and F-1 students seeking science, technology, engineering, and mathematics (STEM) OPT extensions. 

As of March 6, 2023, F-1 applicants who have an already-filed and pending Form I-765 Application (Employment Authorization Document or EAD) under the following categories and wish to request a premium processing upgrade can file Form I-907, Request for Premium Processing Service, with USCIS:

  • (c)(3)(A) – Pre-Completion OPT;
  • (c)(3)(B) – Post-Completion OPT; and
  • (c)(3)(C) – 24-Month Extension of OPT for STEM students.

Additionally, beginning April 3, 2023, USCIS will accept Form I-907 Premium Processing requests, filed either via paper form or online thorough a USCIS online account, for all pending and new OPT and STEM OPT I-765 applications.

The government fee to premium process F-1 EAD applications is $1,500. Upon receiving the I-907 and government fee, USCIS will process the EAD application in 30 calendar days.

Online filing of Form I-907 is now available to F-1 students in the above categories. Eligible applicants can file their premium processing requests either via paper form or online. To file online, an applicant must create a USCIS online account. There is no additional cost to create a USCIS online account. Applicants can submit forms, pay fees, and track case status through their USCIS accounts.

For the applicants who previously filed their I-765 application in paper form and wish to file Form I-907 electronically, they should reference the USCIS Account Access Notice received for the Online Access Code and link their paper-filed applications to their online account; otherwise, they will need to file a paper Form I-907 with the USCIS Chicago lockbox.

Seyfarth will continue to monitor any further developments and phases of USCIS’s premium processing expansion. Should you have any questions, please e-mail the author directly or alert your Seyfarth Shaw contact.

By: Jake Campbell and Victoria Ma

Seyfarth Synopsis: The below summarizes recent legal updates that impact U.S. immigration:

1. H-1B Cap Registration is Live

H-1B cap registration opened on March 1, 2023 at noon EST and closes on March 17, 2023 at noon EST.  Employers should be prepared to submit critical data points associated with each H-1B registration before the registration period ends. USCIS indicated that it will notify employers of selections by March 31, 2023, and will confirm the filing period for H-1B petitions.

2. USCIS Updates Child Status Protection Act Age Calculation for Certain Adjustment of Status Applicants

On February 14, 2023, USCIS began to use the Dates for Filing chart to calculate a noncitizen’s age in certain situations under the Child Status Protection Act (CSPA). Before this guidance, USCIS determined visa availability for certain noncitizen children’s CSPA age calculation based only on the Final Action Date chart, even if applicants could apply for adjustment of status using the Dates for Filing chart, leaving many dependent children in an uncertain situation with a potential risk of being separated from their parents’ applications.

This policy change applies to pending adjustment of status applications. For previously denied adjustment of status applications, individuals may file a motion to reopen within 30 days of the denial. If it has been more than 30 days after the denial , USCIS has discretion to excuse the untimely filing of the motion to reopen; however, the individual bears the burden to demonstrate that the delay was reasonable and beyond the individual’s control.

3. Possible U.S. Stateside Visa Renewals Later This year

Earlier this month, Bloomberg Law interviewed Julie Stufft, Deputy, Assistant Secretary of Visa Services in the Bureau of Consular Affairs, and reported that the U.S. Department of State intends to launch a pilot program later this year offering stateside visa renewals for H-1B and other temporary visa holders. Currently, these visa holders can only obtain their visas abroad. U.S. stateside visa renewals were discontinued in 2004. Restoring this program will save those applicants from having to leave the country to renew their visas and will reduce the workload of consular offices abroad.

4. Board of Immigration Appeals (BIA) Found Noncitizens Inadmissible Under Immigration and Nationality Act (INA) §212(a)(9)(B)(i) Are Not Required To Depart And Remain Outside The United States During That Entire Period Of Inadmissibility

Temporary 3- and 10-year admissibility bars apply when a non-U.S. citizen departs the United States after having been unlawfully present in the United States for more than 180 days, or 1 year or more, respectively. Previously, the foreign national must have completed the 3- or 10-year ban while remaining abroad. However, the Board of Immigration Appeals held that noncitizens who are inadmissible for a specified period of time pursuant to section 212(a)(9)(B)(i) of the INA due to their previous unlawful presence and departure are not required to reside outside the United States during this period in order to subsequently overcome this ground of inadmissibility. See Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023).

5. Proposed USCIS Fee Increase Comment Period Extension

On January 4, 2023, the United States Citizenship and Immigration Services (USCIS) published a proposed rule to increase fees for most immigration benefit requests. The rule is currently in the commenting period, which ends on March 13, 2023. Individuals can submit comments here. After the commenting period concludes, USCIS will respond to these comments and may publish a Final Rule. This process is expected to take several months.

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.

By: Gabriele Vennewald and Rania Abboud

Please note: while we address some country-specific updates related to the COVID-19 pandemic, this Alert contains information regarding global restrictions and closures as they stand today. Given the constantly changing nature of this situation, we highly recommend reviewing any global mobility inquiries on a case-by-case basis, including any consulate-specific or immigration authority resources, in “real-time” before traveling internationally. Please reach out to our Global Mobility Team in advance of any international travel.

Australia – Sponsorship Notification Obligations

Australia requires companies sponsoring work visas to hold a valid business sponsorship.  While this business sponsorship triggers notification obligations, experience shows that it is not uncommon for sponsors to overlook these obligations.

The Australian Immigration Department has published these obligations here.  Generally the Department seems to take a generous approach to failures to notify (for example, director appointments and changes in ownership).  Nevertheless, failure to notify within 28 days of the event constitutes a breach of the sponsorship obligations, and may be used as added ammunition should the Department have concerns with a sponsor in relation to other factors or breaches that come to their attention (for example, through a sponsor monitoring exercise).

In those cases where the Department does commence action, it can become time and labor intensive for a sponsor to respond to the Department’s requests or notices – – even when ultimately no sanction is applied.  Sanctions may include the following:  

  • Not being approved for sponsorship for TSS or any other visa
  • Being barred from sponsoring additional visa holders for a specified time
  • Cancellation of all of existing sponsorship approvals
  • Requiring the sponsor to enter into an enforceable undertaking (ie. a written promise to undertake and complete certain actions to show that the failures have been rectified and won’t recur)

A Sponsor may also be issued a Civil infringement notice carrying one of the following financial penalties:

  • AUD 1,650 for individuals and AUD 8,250 for corporate entities per obligation breach for a first notice
  • AUD 3,300 for individuals and AUD 16,500 for corporate entities per obligation breach for subsequent notices
  • Civil penalty of up to AUD 82,500 for a corporation and AUD 16,500 for an individual for each failure.

Canada-  Visitors can continue to apply for work permits inside Canada, with temporary policy extended by 2 years

On February 28, 2023, Immigration, Refugees and Citizenship Canada (IRCC), announced the extension of their temporary policy allowing foreign nationals currently in Canada as visitors and who receive a valid job offer to be able to apply for, and receive, a work permit without having to depart the country.  Visitors applying under this public policy who held a work permit within the last 12 months will also continue to be able to request interim work authorization to begin working for their new employer prior to receiving an approval. This COVID-era temporary public policy has been extended by 2 years – – until February 28, 2025 – – to help address labor shortages during this period of economic expansion.

To be eligible to apply, an applicant looking to benefit from this temporary public policy must:

  • Hold valid status in Canada as a visitor on the day they apply.
  • Have a job offer supported by a labor market impact assessment (LMIA) or an LMIA-exempt offer of employment (applications for open work permits are not eligible under this policy).
  • Submit an application for an employer-specific work permit no later than February 28, 2025.
  • Meet all other standard admissibility criteria.

Germany – New Visa Processing Fees for National Visa Applications and New Checklists for Schengen Visa Applications

The German missions in India announced that, effective February 27, 2023, the visa processing fees for national visas will change to 6.700 INR; the national visa fee for minors will change to 3.400 INR.

The fees for Schengen visas will remain the same.

The German Consulate in India publishes up to date fee information on their website here under “Step 5 Visa Fees”.

Schengen Visa Applications

In order to further streamline the process, the German Consulates in India have updated their visa checklists.  The checklist for Schengen business visitor visa applications can be found here.

It is important to note that if the inviting company arranges for accommodation, then they should confirm this in their invitation letter.  The applicant is then not required to provide further proof of accommodation such as a hotel reservation.

Another important change relates to the format of sponsor and applicant financial documentation. The Indian sponsoring employer needs to provide evidence such as the Certificate of Incorporation of the Company, GST Registration,  Proof of Company Registration and Acknowledgement of the company’s ITR Returns for the last three years  (latest first, for example, 2022 to 2020).

The Consulates in India also point out that the typical three-week processing time only starts once the application reaches the Consulate. This might take up to six working days depending on the delivery conditions and public holidays.

Singapore – Ease of Entry Requirements Related to Safety Measures During the Pandemic

The Singapore government announced that for visitors all COVID-19 border measures are removed as of Monday, February 13, 2023. This is regardless of vaccination status or traveler profile.

The Ministry of Manpower reminds the public that all foreign nationals who apply for new work passes must still be fully vaccinated (including booster, if required) with WHO-EUL vaccines as part of work pass requirements.   After entering Singapore, they must verify their overseas vaccination records and update them in the National Immunization Registry (NIR) by taking a serology test or getting their digitally-verifiable vaccination certificates (DVCs) verified at a local clinic.

Switzerland – Relaxation of Requirements

The State Secretariat for Migration (SEM) has decided to implement various changes to the requirements to hire certain Non-EU/EFTA nationals as of February 2023.

Labor market review may be waived in certain shortage occupations such as Managers, Engineers, and ICT specialists.  In professions with a pronounced shortage of skilled workers, permits may also be granted for positions that do not necessarily require a university degree (non-academic professions).

Please see the following details:

Relaxation of Requirements in connection with Labor Market Review

The Swiss cantonal authorities may waive the labor market review in the following occupational categories that are evidently affected by the structural shortage of skilled workers:

  • Managers (executive positions) in Information and Communication Technology, in Management Consulting, in the Finance and Insurance industry, in the mechanical, Electrical, and Metal industry, and in the production of Chemical, Pharmaceutical and Food Products;
  • Engineering occupations, scientists, and researchers in Mathematical, Scientific, and Technical fields, as well as specialized professionals in Information and Communications Technology;
  • Health Care professions: Medical Specialists, Medical Residents, specialized Nursing personnel (e.g., Surgical Nursing, Acute and Emergency care), Radiology Assistants, as well as
  • University Teachers.

 In critical circumstances, the competent authority can demand suitable evidence (e.g., advertisement of the vacant position at the RAV or in the EU/EFTA area, etc.).  The reason for such requests may be, for example, the cantonal labor market situation, regional economic priorities, or macroeconomic interests.

Ease of Educational/Professional Requirements

In professions with a pronounced shortage of skilled workers, qualified persons with special professional knowledge or skills or indispensable skilled workers may be admitted (Art. 23 para. 3 let. C FNIA).  Permits may also be granted for positions that do not necessarily require a university degree (non-academic professions), e.g., in the skilled trades or in the field of nursing specialties or if the professional experience required as a rule after a completed course of study is still lacking. In terms of the legal requirements, either at least a vocational training qualification or several years of professional experience, usually at least 5 years is a prerequisite.

The following occupational fields may fall under the enforcement facilitations in terms of professional qualifications:

  • Health Care professions: Specialized Nursing personnel (e.g., Surgical, Acute and Emergency care), Radiology Assistants;
  • Technical and specialized occupations in the field of Information and Communications Technology

By: Jake Campbell

Applying for an Immigration visa.

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:

  1. H-1B Cap Registration

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.

  1. Bundling of Concurrently filed H-4 and L-2 I-539 and I-765 Applications with H-1B or L-1 Petitions

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.

  1. I-140 EB-1C and National Interest Waiver Premium Processing and Forthcoming Premium Processing for Certain I-539 and I-765 Applications

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:

CaseCostExpected Implementation Period
Pending Optional Practical Training (OPT) or STEM OPT I-765 EAD applications$1,500March 2023
All pending and new OPT and STEM OPT I-765 applications$1,500April 2023
Pending I-539 applications for F-1, J-1, and M-1$1,750May 2023
All I-539 applications for F-1, J-1, and M-1$1,750June 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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$2152050%N/A
I-129 H-1B; H-1B1 Petitions$460$78070%Yes
I-129 L Petitions$460$1,385201%Yes
I-129 O Petitions$460$1,055129%Yes
I-129 E and TN Petitions$460$1,015121%Yes
I-130 Petition$535$71033%N/A
I-140 Petition$700$7152%Yes
I-485 (Filed with I-131 and I-765)$1,225$2,820130%N/A
I-485 (Filed without I-131 and I-765)$1,225$1,54026%N/A
I-765 Paper Filing$410$65059%N/A
I-765 Online Filing$410$55535%N/A
I-539 Paper Filing$370     (without biometrics)$62068%N/A
I-539 Online Filing$370     (without biometrics)$52542%N/A
N-400 $640$76019%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.

By: Mia Batista, Steven R. Brouillard, and Victoria Ma

Seyfarth Synopsis: H-1B Registration is approaching! Employers should identify any current employees and employment candidates who may require H-1B visa sponsorship.

This Legal Update is intended to assist employers with understanding the general process of the H-1B electronic registration program and identifying any current employees and employment candidates who may require H-1B visa sponsorship. We recommend that employers identify any such H-1B registration candidates as soon as possible.

Background – Regular Cap and Master’s Cap

Congress set the current annual regular quota for the H-1B visa category at 65,000 (commonly known as the “regular cap”), meaning that USCIS can approve up to 65,000 H-1B visa petitions each fiscal year. For the 2024 fiscal year (beginning October 1, 2023, and ending September 30, 2024), the regular cap quota remains at 65,000. Of the 65,000 H-1B visas, up to 6,800 visas are reserved for nationals of Chile and Singapore pursuant to free trade agreements with those countries.  

In addition to the 65,000 quota for the regular cap, there is an additional quota of 20,000 H-1Bs reserved for registrants holding a U.S. master’s degree (or higher). To be eligible for the “master’s cap,” the employee must have completed a master’s degree (or higher) awarded by an accredited public or not-for-profit U.S. institution prior to the petition filing date.

Once USCIS receives 65,000 registrations to meet the regular cap and 20,000 H-1B registrations towards the master’s cap, the Service will conduct two separate selections to identify the cap registration winners. USCIS will first apply the random selection process to all cap registrations received under the regular cap to identify the initial 65,000 selections. Any master’s cap registrations not selected in the first lottery will be eligible for selection in a separate H-1B master’s cap lottery, effectively being granted two opportunities at H-1B lottery selection.

H-1B Cap Registration and Selection Statistics from Last Year

For FY 2023, USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations, resulting in an approximate 26% chance of selection overall. Both the regular cap and the master’s cap were exhausted last year during the electronic registration. In other words, USCIS did not conduct a second round of selections in FY 2023. By contrast, in FY 2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations. For FY 2022, USCIS conducted two additional selection rounds in addition to the electronic registration period in March 2021.  It is difficult to predict how quickly the H-1B quota will be exhausted.

Electronic Registration Process

In 2020, USCIS implemented an electronic registration system for all cap-subject H-1B petitions, requiring employers to register cap cases electronically. Prior to their electronic registration system implementation, employers prepared entire H-1B petitions to file on April 1st of each year and then awaited confirmation from USCIS to determine if the H-1B petition was selected, frequently taking several months to receive confirmation.

The electronic registration system is more efficient. Employers will typically learn of the results, by the first week of April. Last year, the initial registration period ran from March 1, 2022 to March 18, 2022. After the registration period closed, USCIS conducted registration selection for both the regular cap and master’s cap, and then announced the results by March 31, 2022. Employers were invited to file H-1B petitions for the selected registrations between April 1, 2022 and June 30, 2022.

USCIS will continue to utilize electronic registration for FY 2024’s H-1B cap season. The registration period 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. If an employer needs to create a new registrant account online, February 21, 2023 is the earliest time to create a new registrant account.

The earliest cap H-1B filing date for FY 2024 will likely be April 3, 2023, based on this being the first business day in April. Thus, we anticipate that the 90-day H-1B filing period will likely run from April 3, 2023 to July 2, 2023.

The current cap H-1B registration fee is $10.00 per registered beneficiary payable to U.S. Department of Homeland Security. While USCIS is proposing to increase the cap H-1B registration fee from $10 to $215, the registration fee will remain at $10 per registered beneficiary this year payable to U.S. Department of Homeland Security.

Upon electronic confirmation of selection, an employer will have 90 days to file a cap-subject H-1B petition for the specified beneficiary. An employer can request a start date of no earlier than October 1, 2023. Again, it is likely that USCIS may begin accepting petitions for FY 2024 on April 3, 2023 because April 1, 2023 is a Saturday. This is critical especially for registrants’ whose current employment authorization is expiring before April 1, 2023. Please reach out to your Seyfarth representative for more information.

Current Employees and Potential Candidates

Employers should consider filing H-1B petitions for any current employees who hold F-1 student status and who will thus need H-1B status to continue working once their F-1 Employment Authorization, also known as Optional Practical Training (OPT) or STEM OPT, expires. In addition, any pending hires should be assessed to determine whether an H-1B will be required for continued employment, including those in J-1 academic programs with limited practical training time as well as those who currently reside outside the United States without any other employment authorization options. Moreover, employers may also want to consider any current employees who hold dependent family member visa status (i.e., H-4, L-2, and E-3). Further, any current employees who hold TN, E-3, or L-1 status and who are beginning the green card process may benefit from converting to H-1B status.

Exceptions to the Annual H-1B Cap

With some exceptions, current H-1B workers are not subject to the annual cap, including H-1B workers extending their status, changing from one H-1B employer to another, changing the terms of existing H-1B employment, or filing for a second (concurrent) H-1B position.  In addition, foreign nationals seeking to work for an institution of higher education, for a related or affiliated nonprofit entity, or for a nonprofit research organization or a government research organization are not subject to the H-1B cap.

Alternatives to the H-1B Visa

In some cases, there may be alternatives to the H-1B visa. If an employee falls into one of the following categories, an H-1B cap petition may not be needed:

  • Citizens of Canada or Mexico who are eligible for a TN visa. Please note, however, that not all Canadian or Mexican employees will qualify for TN status.
  • Citizens of Australia, Chile, or Singapore.
  • The spouse of an L visa or E visa holder, who is eligible for spousal employment authorization incident to their status.
  • The spouse of an H-1B visa holder, who is eligible for spousal employment authorization (EAD).
  • J-1 nonimmigrants who have at least 18 months of academic training available as of April 1, 2023.
  • With limited exceptions, H-1B employees who have held H-1B status at any time with a cap-subject employer.
  • A foreign national who is married to a U.S. citizen and has received or will receive an Employment Authorization Document in connection with the pending green card process.
  • Certain other foreign nationals who may qualify for an O, E, or L visa.

Although an employee may fall into one of the aforementioned categories, there may be reasons why employers should file a cap-subject petition on an employee’s behalf. As such, please contact your Seyfarth representative to determine if you should register an individual listed in one of these categories.

Conclusion

Employers should act now to identify and begin H-1B processing for candidates or current employees who require H-1B sponsorship. If an employer misses the registration period or filing deadline for an employee who requires H-1B sponsorship, the employee can lose legal status in the United States, including permission to work. Seyfarth is continuing to monitor for announcements and updates related to the H-1B electronic registration process and will publish updates to this alert accordingly. Should you have any questions, please e-mail the authors directly or your Seyfarth Shaw contact.

By: Steven Brouillard and Jake Campbell

Seyfarth Synopsis: Starting January 25, 2023, USCIS will adjudicate I-539 and I-765 applications for H-4 and L-2 dependents when those applications are filed concurrently with the I-129 petition.  The bundling of those applications applies to both regular and premium processed H-1B or L-1 petitions.

USCIS will return to its historical process of adjudicating applications for H-4 and L-2 dependents when the Forms I-539 (application to change or extend status) and I-765 (employment authorization application) are filed concurrently with the H-1B or L-1 petition. In addition to L-2 or H-4 extensions, dependents seeking to change to H-4 or L-2 status using Form I-539 will also benefit from the bundled adjudication, provided that the Form I-129 is filed concurrently. The practice of bundled adjudications will be in effect for two years, effective January 25, 2023.

This shift in practice is the result of a settlement agreement in Edakunni v. Mayorkas, which challenged the lengthy adjudications for H-4 and L-2 dependents. Under the Trump administration, USCIS implemented several changes – requiring biometrics appointments and de-coupling the adjudication of I-539 applications filed together with Form I-129 – that led to extensive processing times for H-4 and L-2 dependents. USCIS, under the Biden administration, has taken several steps to improve the processing time for dependent applications. On May 17, 2021, USCIS suspended the biometrics appointment requirement for those filing an I-539 requesting H-4, L-2, or E dependent nonimmigrant status. On November 10, 2021, USCIS reached a settlement agreement in Shergill v. Mayorkas that permits L and E spouses to work incident to status, and provides automatic extensions of employment authorization for certain I-765 renewal applications.  

We expect USCIS to make an announcement regarding the Edakunni settlement agreement shortly. It remains unclear how USCIS will adjudicate pending I-539 or I-765 applications that were filed concurrently with Form I-129, prior to January 25, 2023.

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

By Steven R. Brouillard and Victoria Ma

Seyfarth Synopsis: On January 12, 2023, USCIS announced the final phase of premium processing expansion for EB-1 Multinational Executive and Manager and EB-2 National Interest Waiver (NIW) Form I-140 Petitions, as well as steps to expand premium processing for certain I-765 and I-539 applications.

Background:

On March 30, 2022, the Department of Homeland Security (DHS) published a final rule, Implementation of the Emergency Stopgap USCIS Stabilization Act. This final rule codified certain premium processing and adjudication timeframes. Pursuant to this final rule, U.S. Citizenship and Immigration Services (USCIS) announced initiatives to increase efficiency and reduce burdens to the overall legal immigration system, including expanding premium processing to more petitions and applications. As a result, USCIS extended premium processing to certain pending EB-1 Multinational Executive and Manager (EB-1C) and EB-2 National Interest Waiver (NIW) petitions over three separate phases in May 2022, July 2022, and September 2022.

On January 12, 2023, USCIS announced the final phase of premium processing expansion for EB-1C and NIW immigrant visa petitions. This expansion is part of USCIS’s continued efforts to implement and achieve its processing backlog reduction goals. USCIS has previously stated that they aim to achieve their established new cycle time goals by the end of fiscal year 2023.

EB-1C Multinational Manager and EB-2 National Interest Waiver Immigrant Visa I-140 Petitions

Starting from January 30, 2023, premium processing will be available for all pending and new EB-1C Multinational Executive and Manager immigrant visa petitions and all pending and new EB-2 National Interest Waiver (NIW) immigrant visa petitions.

Before January 30, 2023, only EB-1C petitions with a receipt date of January 1, 2022 or earlier are eligible for premium processing; and only NIW petitions with a receipt date of February 1, 2022 or earlier are eligible for premium processing.

The premium processing filing fee for EB-1C and NIW immigrant visa petitions is $2,500. Premium processing service for EB-1C and NIW immigrant visa petitions means that USCIS will adjudicate the petition within 45 calendar days, as opposed to the standard 15 calendar days that many other immigration benefits enjoy. With processing times often exceeding one year for EB-1C/NIW petitions at the Texas and Nebraska Service Centers, this is welcome news. Upgrading an EB-1C/NIW petition to premium processing only expedites the adjudication of the I-140 petition and does not guarantee expedited processing of any pending I-485 applications.

Employment Authorization Document Applications for F-1 Students

The January 12th USCIS announcement also stated that in March 2023, USCIS will expand premium processing to F-1 students seeking Optional Practical Training (OPT) or STEM OPT who have a pending I-765 employment authorization application. The fee will be $1,500 for a 30-day adjudication period.

Additionally, in April 2023, USCIS expects to expand premium processing to all pending and new OPT and STEM OPT I-765 applications. USCIS will announce specific dates for each group in February this year. The premium processing eligibility timeline for employment authorization applicants in other nonimmigrant visa categories remains unclear.

I-539 Applications For Certain Students And Exchange Visitors

Finally, the January 12th USCIS announcement provided an update on the agency’s plan to expand premium processing to I-539 applications.  In May 2023, USCIS anticipates expanding premium processing for pending I-539 applications for certain student and exchange visitors. It is likely that this extension phase would be limited to applicants seeking F (academic student), M (vocational student), and J (exchange visitor) nonimmigrant status. The fee will be $1,750 for 30-day adjudication period. In June 2023, USCIS expects to expand premium processing to all pending and new I-539 applications filed by certain student and exchange visitors.

At present, 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.

Seyfarth will continue to monitor developments with respect to premium processing expansion policy updates. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.

On January 4, 2023, the United States Citizenship and Immigration Services (USCIS) published a proposed rule to increase fees for most immigration benefit requests. If implemented, employers will pay significantly more for most nonimmigrant and immigrant filings. The fee increases projects to boost revenues by over $4.5 billion providing USCIS with the much-needed resources the agency claims are necessary to “improve service levels.”   The USCIS is funded mainly by these user filing fees, as opposed to appropriations, which fund other agencies like the Department of Labor (DOL).  The rule is subject to a 60-day comment period closing on March 3, 2023. Details and key takeaways appear below.

What are the key takeaways for employers from the proposed rule?

  • Fees for cap H-1B registration would increase dramatically from $10 to $215 per registration.  Fortunately, the comment period makes it impossible for this increase to be implemented for the upcoming cap H-1B registration in March 2023.
  • USCIS seeks to collect additional fees from the employer community to help fund the asylum and humanitarian relief programs. Every I-129 and I-140 petition would require a separate $600 Asylum Program Fee payment. This fee would apply to all initial petitions, changes of status, and extensions of stay that use Form I-129. This $600 fee would be in addition to the separate Form I-129 and I-140 filing fee increases. The proposed fee is currently $600 regardless of the size of an employer or the number of foreign nationals it employs.
  • Premium processing service would change from 15 calendar days to 15 business days. Business days are defined as the days that the federal government is open for business, which does not include weekends or federally observed holidays. This could add a one to two week delay to case processing.
  • Adjustment of Status (AOS) applications would no longer benefit from one bundled fee for the I-485, I-131 (Advance Parole), and I-765 (EAD) applications. The total fees for a bundled AOS application (including the I-485, I-131, and I-765) would increase from $1,225 to $2,820. USCIS would also eliminate the reduced AOS fee for individuals under 14 years of age. Thus, some individuals may only opt to file the I-485 without I-131 and I-765 applications.
  • Individuals with a pending AOS application would need to pay the I-765 and I-131 filing fees with USCIS when renewing Advance Parole or Employment Authorization.
  • Filing fees for H-1B petitions would increase from $460 to $780 (Not including the additional $600 Asylum Program Fee).
  • Filing fees for L-1 petitions would increase from $460 to $1,385 (Not including the additional $600 Asylum Program Fee).
  • Filing fees for E or TN petitions would increase from $460 to $1,015 (Not including the additional $600 Asylum Program Fee).
  • Filing fees for I-140 immigrant visa petitions would  increase more modestly from $700 to $715 (Not including the additional $600 Asylum Program Fee).
  • Filing fees for online applications would be lower than paper-based applications. For instance, USCIS proposes a new filing fee of $555 for I-765 applications filed online and $650 for paper-based I-765 applications. Similarly, the proposed filing fee for online I-539 applications is $525 and the proposed fee for paper-based I-539 applications is $620. USCIS views it less expensive to process when forms are filed electronically. The proposed rule cites the increase of online filings during COVID and encourages “continued use of online filing at the same or a higher rate after the pandemic, DHS proposes a lower fee for online filing of immigration benefit requests for which both paper and online filing options are available.”
  • Filing fees for EB-5 related Regional Center and investor petitions would see the most significant increases, with USCIS rationalizing the increases by referring to the mandate of the EB-5 Reform and Integrity Act of 2022 (RIA) and noting that RIA “requires DHS to . . . set fees for EB-5 program related immigration benefit requests at a level sufficient to recover the costs of providing such services, and completing the adjudications within certain time frames.”  The rule also discusses the need to increase staffing levels at the Immigrant Investor Program Office and “believes that immigrant investors and regional centers are able to pay the fees.” USCIS proposes to increase I-526E investor applications from $3,675 to $11,160 and I-829 petitions from $3,835 to $9,525. Regional Center Designation I-956 applications are proposed to increase from $17,795 to $47,695 and the I-956G Annual Statement is proposed to increase from $3,035 to $4,470.
  • To encourage the naturalization of Lawful Permanent Residents (e.g. green card holders) to U.S. Citizens, USCIS proposes  a modest increase for the N-400 application from $640 to $760.

Where can I find the new proposed fee schedule from USCIS?

The chart showing the current and proposed fee increases is available starting at page 407 of the proposed rule.  (See 88 Fed. Reg. 402, 407 (Jan. 4, 2023)). Seyfarth has prepared the below chart to show the current fees and proposed fees for the most common employment-based petitions and applications. We have also included EB-5, Immigrant Investor Program, related fees.

Comparison of Current and Proposed Fees

History and Other Insights

The last time USCIS successfully increased fees was in 2016. There was a thwarted attempt to raise fees in August 2020, with an effective date of October 2, 2020. The 2020 final fee rule was challenged however, by AILA and partners, and a preliminary injunction and stay was issued by the U.S. District Court for the Northern District of California. Another injunction was issued by the U.S. District Court for the District of Columbia also staying the effective date.  One of the arguments outlined by the plaintiffs in the August 2020 complaint focused on the government’s lack of an explanation for the proposed fees. According to the complaint, there was inadequate explanation for the “dramatic change in the financial needs of the USCIS. DHS does not disclose calculations underlying its skyrocketing costs or explain why it projects a massive budget shortfall despite the agency’s recent history of running at a surplus with substantial cash reserves.” 

USCIS has learned from the failed fee increase attempt in 2020. In the 2023 proposed rule, USCIS appears to have spent a great deal of time and effort creating the 210-page document, describing in detail the fee review USCIS undertook. According to the USCIS Press Release, USCIS “determined that the agency’s current fees, which have remained unchanged since 2016, fall far short of recovering the full cost of agency operations. USCIS is required to publish a fee rule biannually and proposes these changes to account for the expansion of humanitarian programs, federally mandated pay raises, additional staffing requirements, and other essential investments.”

What happens next?

USCIS will host a public engagement session on the proposed fee rule on January 11, 2023. The agency will accept comments from the public until March 6, 2023. Individuals or employers may  visit review the proposed rule here and submit comments here. The Seyfarth Government Relations and Policy group is assisting various companies and organizations in preparing comments and would welcome the opportunity to speak with anyone interested in participating.

We expect that the comments will include concerns from small businesses, non-profits, and  educational institutions who are not generally in a position to absorb the enormous increase and will feel a disproportionate impact. Consequently, it is possible that with enough feedback, changes to the proposed schedule could be made, but it is highly unlikely that this will occur.  

Once the comment period is closed, USCIS will then take time to respond to the public comments and publish a final rule, which will contain the date of implementation. In 2016, the last time USCIS successfully increased fees, it took over seven months from the date the proposed rule was published before the new fees became effective. In short, it will take many months before the higher fees take effect, if at all.  If the rule is finalized without significant changes, it is very likely that litigation will ensue. Seyfarth will offer more details and insights once more information is available.

For questions or assistance please contact the Seyfarth Immigration, Immigration Compliance and Enforcement or EB-5 Immigrant Investment groups, or the authors directly- Dawn Lurie at dlurie@seyfarth.com or Steven Brouillard at sbrouillard@seyfarth.com.

By: Dawn Lurie, Matthew Parker* and Amber Stokes*

As U.S. Citizenship and Immigration Services (“USCIS”) continues to deal with their backlogs, they have announced that, effective September 26, 2022, USCIS is automatically extending the validity of expired Forms I-551, Permanent Resident Card ( or “PRC”), commonly known as a Green Cards, for lawful permanent residents (or “LPRs”) who properly file a Form I-90, Application to Replace Permanent Resident Card.

This extension will now extend the validity of an expired green card for 24 months from the expiration date of the green card. In June of 2021 the USCIS first introduced the concept of extending an expired green card by using  an I-797C, Notice of Action (“receipt notice”) for a Form I-90. These original extensions were   granted for a 12-month extension to an expired I-551’s validity. This will assist green card holders facing long extension times who wish to present their green cards as proof of employment eligibly.   

The I-797C, Notice of Action for anyone with a pending Form I-90 after September 26 will reflect the new 24-month extension. Additionally, USCIS has already begun issuing amended receipt notices for LPRs with an already pending Form I-90 application and a receipt notice dated before September 26.

How Do I Complete the Form I-9 using the Expired Green Card and Form I-90 Receipt Notice?

First thing to note is that a I-797C, Notice of Action for a Form I-90 presented with an expired green card combination is an acceptable List A document that establishes identity and employment authorization and does not require reverification.

Here are the steps for recording these documents for a new hire

  1. Record the document title and issuing authority in the appropriate List A fields of Section 2.
  2. Record the document number of the employee’s expired green card, located on the back of the card.
  3. Record the expiration date as the ”Card Expires” on the front of green card plus 24 months. In other words add two years onto the “Card Expires” date listed on the employee’s green card.
  4. Record “PRC EXT” and the I-797C receipt number in the Additional Information box.
Employment Eligibility Verification Graphic

Things to Remember

  • Employees that present an expired green card and Form I-90 (I-797C receipt notice) should not be reverified.
  • No action needs to be taken on existing employee’s I-9s where they have previously presented the I-797C granting a 12-month extension along with the expired green card.

For questions or assistance regarding Form I-9 compliance, please contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.

* Matthew Parker and Amber Stokes are part of Seyfarth’s Business Immigration team, however they are not practicing attorneys.