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.

By: Dawn Lurie, Matthew Parker, and Amber Olson

On July 22, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a reminder regarding the Department of Homeland Security’s (DHS) termination of the COVID-19 temporary policy allowing employers to accept expired List B documents for the Form I-9. As of May 1, 2022, employers must only accept unexpired List B documents.

As discussed in previous blogs, DHS adopted a temporary policy at the onset of COVID-19 in 2020 to allow expired List B documents to be accepted for Form I-9 purposes in response to the many difficulties individuals experienced with renewing identity documents. Since May 1, 2022, DHS has returned to their original policy which only allows for unexpired List B documents to be used for the Form I-9.

USCIS reminds employers that they are required to update Forms I-9 for any employees who presented an expired List B document between May 1, 2020 and April 30, 2022 that were not formally extended by their issuing authority, by July 31, 2022 – that’s this weekend! To update, employees must be asked to provide either an unexpired List B document, or unexpired List A document. Please note, if the employee originally presented a List B document that was formally extended by the document’s issuing authority, no further action is required.

The USCIS announcement also offers an informational chart outlining the specifics of updating these Forms I-9 – see below.

Credit – USCIS: https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/reminder-dhs-to-end-covid-19-temporary-policy-for-expired-list-b-identity-documents

While USCIS does not include this in the reminder announcement, prior USCIS guidance for updating Section 2 differs depending on who reviewed the original List B document and who is now reviewing the new List B (or List A) document. If the individual reviewing the new document is the same, simply record the document information in the Additional Information box and initial and date. See Form I-9 Mark Up provided by USCIS. However, if the individual reviewing the new document is different from the original reviewer, then employers have two (2) options:

  1. Record the document information in the Additional Information box and sign their full name and title, instead of initials – and don’t forget to date!
  2. Complete a new Section 2 and attach to the original Form I-9.

For assistance with updating Forms I-9, preparing for a post-COVID I-9 compliance world, or for general questions regarding I-9 compliance, worksite enforcement audits, E-Verify compliance, Department of Labor immigration related wage and hour investigations, general H-1B compliance, and Department of Justice’s Immigrant and Employee Rights section (IER) anti-discrimination matters, please contact the Seyfarth Immigration Enforcement and Compliance group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.

By: Dawn Lurie, Leon Rodriguez, Angelo Paparelli, and Zachary Blas Perez

Seyfarth Synopsis: U.S. Citizenship and Immigration Services (USCIS) has announced an important policy change that will benefit noncitizens holding Temporary Protected Status (TPS). The new policy permits USCIS to issue a new TPS travel authorization document, amending the previous mechanism required for TPS to receive foreign travel permission.  This policy change is significant because  noncitizens who enter on this new TPS travel authorization will now be considered as “inspected and admitted,” and accordingly may qualify for adjustment of status to lawful permanent resident (green card) status with an underlying employment-based or family-based immigrant visa petition.

On July 1, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum: Rescission of Matter of Z-R-Z-C– as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries, announcing a new pathway for persons granted Temporary Protected Status (TPS) to travel outside the United States and be readmitted in a legal status that would allow them, in certain circumstances, to qualify for lawful permanent residency.

This memorandum, written in close consultation with the Department of Homeland Security’s Office of General Counsel (DHS OGC), is an attempt to better harmonize and administer decades of TPS protocols that have been at times inconsistent or infeasible for TPS holders as well as their dependents and other family members.  Just last year, the Supreme Court held, in Sanchez v. Mayorkas, that while a grant of TPS could not be considered an admission, it still constituted a “kind of lawful status” which USCIS has interpreted to make the shortcomings of Matter of Z-R-Z-C- warrant a rescission. (Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021)).

Created by Congress in 1990, TPS is available to eligible noncitizens present in the United States who are nationals of a foreign country that has been designated for temporary protection by the Secretary of Homeland Security.[1]  These countries currently include Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Syria, Somalia, Sudan, South Sudan, Ukraine, Venezuela, and Yemen. All designations of countries for TPS are discretionary, and before any such designation can occur, the DHS Secretary must make a formal finding that conditions in the particular country meet one or more alternative statutory criteria, namely, the presence of ongoing armed conflicts, environmental disasters, or “extraordinary and temporary conditions.”[2]

In general, a noncitizen physically present in the United States who meets the TPS statutory criteria may be granted temporary protection regardless of one’s underlying immigration status and regardless of the lawful or unlawful manner of entry into the country.[3] Broadly, TPS provides protection from removal by DHS, carries with it the inherent right of work authorization incident to TPS status, and allows for the submission to USCIS of an application for advance permission to travel abroad and be readmitted to the US. The USCIS July 1 Policy Memorandum (discussed below) addresses the new process envisioned by the agency for granting pre-departure consent to travel abroad and be readmitted, and explains potential eligibility to qualify for adjustment of status.

Continue Reading Opening the Door to Adjustment of Status with New TPS Travel Authorization Policy

Tuesday, June 28, 2022

2:00 p.m. to 3:00 p.m. Eastern
1:00 p.m. to 2:00 p.m. Central
12:00 p.m. to 1:00 p.m. Mountain
11:00 a.m. to 12:00 p.m. Pacific

Please join Seyfarth’s Immigration Compliance and Enforcement Team as they launch a four-part series focused on critical challenges faced by employers in the current era of more frequent immigration focused audits and investigations.

Employers already know that compliance with rapidly changing I-9 and E-Verify directives from the government is complex and challenging. Couple this with new agreements between agencies to provide access and share information and compliance becomes even more perplexing.

It is critical for employers to ensure that when federal or state agencies send any type of correspondence- or just show up unannounced -your company is prepared.

This series will take a deep dive into the mindset, behaviors and traps of the myriad of federal and state immigration enforcement agencies.

Part 1:  Love Letters From E-Verify – Complexities and Nuances

In our first conversation, our panel will focus on E-Verify compliance and establishing measures essential to proper use of the platform as well as state and federal enforcement. Employers should take any communications from the government seriously and be proactive in their compliance efforts.

We will address:

  • E-Verify account compliance;
  • Mandatory vs. voluntary participation, including FAR contractors; and,
  • E-Verify state requirements and related audits.

Our conversation will also concentrate on account compliance monitoring, including desk reviews, historical reporting tricks and ways to identify issues relating to closing cases, duplicate cases, no cases, and more. Additionally, we will discuss how DOJ’s Immigrant and Employee Rights Section I uses E-Verify data as well how ICE may mine it. Finally, if time permits, we will cover E-Verify compliance challenges, specifically electronic I-9 vendor relationships.

Register Here

Speakers

Dawn M. Lurie, Senior Counsel, Seyfarth Shaw LLP
Angelo A. Paparelli, Partner, Seyfarth Shaw LLP
Zachary Blas Perez, Staff Attorney, Seyfarth Shaw LLP
Leon Rodriguez, Partner, Seyfarth Shaw LLP

If you have any questions, please contact Kate Avery at kavery@seyfarth.com and reference this event.

Future Installments of the Series

  • Immigration Discrimination: U.S. DOJ’s Immigrant and Employee Rights Section.
  • Form I-9 (Employment Eligibility Verification): The Homeland Security Investigations Unit of U.S. Immigration & Customs Enforcement.
  • Site Visits by USCIS’s Fraud Detection and National Security Directorate, and  U.S. Department of Labor Wage and Hour Division H-1B and PERM Labor Certification Investigations.

Learn more about our Immigration practice.

This webinar is accredited for CLE in CA, IL, NJ, and NY. Credit will be applied for as requested for TX, GA, WA, NC and VA. The following jurisdictions may accept reciprocal credit with these accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, CT, NH. The following jurisdictions do not require CLE, but attendees will receive general certificates of attendance: DC, MA, MD, MI, SD. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used in other jurisdictions for self-application. Please note that attendance must be submitted within 10 business days of the program taking place. If you have questions about jurisdictions, please email CLE@seyfarth.com.

By: Angelo A. Paparelli  [1]

Seyfarth Summary: In 2004, U.S. Citizenship and Immigration Services (USCIS) – an agency in the U.S. Department of Homeland Security (DHS) – created its Fraud Detection and National Security (FDNS) Directorate.  Since then, FDNS’s immigration officers have frequently appeared, without prior notice, at the business premises of employers that have petitioned USCIS to authorize the employment of noncitizens on U.S. work visas.  USCIS and FDNS describe these encounters as mere “site visit” intended to confirm the facts stated in employment-based nonimmigrant visa petitions.  As part of its “site visit” program, FDNS typically asks for voluminous documentary records, and demands physical access beyond the employer’s front desk in order to photograph the worksite.

This blog post challenges FDNS site visits as unlawful investigative activities that are conducted in violation of the Homeland Security Act of 2002 (HSA).  The HSA contains an express prohibition limiting the legal authority of USCIS solely to the “adjudication” of requests for immigration benefits,  such as work and travel permission, lawful permanent residency and naturalization.  Investigative activities and intelligence gathering under the HSA, the blog post explains, may only be conducted by two other DHS component agencies –  U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.

The blog post therefore offers guidance to employers on practical strategies to consider when FDNS knocks at the door.

Continue Reading Challenging Unlawful Demands and Site Visits of USCIS’ Fraud Detection and National Security Directorate (FDNS)