By: Mary Honeychurch, Steven Brouillard, Weijia (Victoria) Ma, and Jake Campbell

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

1.  USCIS Releases FY2024 H-1B Initial Registration Period Updates

On April 28, USCIS announced that it received 780,884 registrations for the FY2024 H-1B initial registration, resulting in an approximate 14% chance of selection, a significantly lower selection rate than in previous years.

Cap Fiscal YearTotal RegistrationsEligible Registrations*Eligible Registrations for Beneficiaries with No Other Eligible RegistrationsEligible Registrations for Beneficiaries with Multiple Eligible RegistrationsSelections**
2021274,237269,424241,29928,125124,415
2022308,613301,447211,30490,143131,924
2023483,927474,421309,241165,180127,600
2024780,884758,994350,103408,891110,791

USCIS noted that the significant increase in the number of registration has raised serious concerns that some companies may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary.

As a part of the registration process, each prospective employer, or petitioner, is required to sign an attestation, under penalty of perjury, that:

  1. All of the information contained in the registration submission is complete, true, and correct;
  2. The registration(s) reflect a legitimate job offer; and
  3. The registrant, or the organization on whose behalf the registration(s) is being submitted, has not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

If USCIS finds that that the registrant violated the attestation, USCIS will render the petitioner ineligible to file a petition based on that registration.  USCIS also has discretion to deny or revoke a petition based on a registration that is found to have a false attestation.

Notably, more than 52% of the registrations received this year were from beneficiaries who had two or more registrations submitted on their behalf.  Based on evidence from both FY2023 and FY2024, USCIS stated that it has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating criminal law referrals.

USCIS indicated that it is working on an upcoming H-1B modernization rule that will propose, among other things, changes to the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system.

2. Department of Labor (DOL) Held Webinar to Explain Upcoming Changes to Form ETA 9089 (PERM) Applications

On April 19, 2023 and April 20, 2023, the DOL hosted webinars explaining the upcoming changes to Form ETA 9089 (9089), also known as the PERM application.  As of April 24, 2023, the new 9089 is available in the Foreign Labor Application Gateway (FLAG) system so that filers can begin creating applications on the new 9089.  This new version of the 9089 will be required starting May 16, 2023. The Office of Foreign Labor Certification (OFLC) will no longer accept new applications submitted via the legacy PERM system after May 15, 2023 at 6:59 pm EST.

3. Office of Foreign Labor Certification (OFLC) Issues Updated Guidance Regarding Form ETA 9089, Field H.10-B

On April 14, 2023, the Department of Labor (DOL) announced that it will accept and process requests for reconsideration for denials based solely on Field H.10-B of Form 9089, “Acceptable Alternate Occupation Title” when this field did not contain a specific job title (i.e., “see H-14” or when the employer listed a specific minimum requirement without a job title).  OFLC indicated that it evaluated the denials issued for this reason and determined that, while they are appropriate, it has been inconsistent with denials for this reason, which resulted in confusion for filers.  As a result, OFLC has stopped issuing denials for this reason on pending applications and will not deny cases for this reason for any application submitted on or before May 30, 2023.  OFLC will also overturn denials based solely on this issue if the employer submits a request for reconsideration.  OFLC will identify applications that were denied for this reason and encourages those who have not yet submitted a request for reconsideration not to do so. OFLC indicated that it will prioritize processing for reconsideration requests where the denial was based solely on this issue.

In addition, DOL clarified that a job title should be used when completing this field going forward. The new ETA-9089 in FLAG (see above), however, does not have the same question as the current H.10-B. Instead, the new 9089 will rely on the data entered on Form 9141, Application for Prevailing Wage Determination where the question reads “Indicate the Occupation Required.”  To date, DOL has not clarified whether it will require a job title for this question on Form 9141.

4. Movement in the May 2023 Visa Bulletin

In May 2023, EB-2 Final Action will retrogress by 4.5 months to February 15, 2022.  The EB-3 China Professional/Skilled Worker category will advance by 5 months to April 1, 2019 (Final Action) and by 4 months to June 1, 2019 (Dates for Filing).

In May 2023, filers must use the Final Action Dates in the DOS May 2023 Visa Bulletin for employment-based preference filings and Dates for Filing for family-sponsored filings.

The State Department anticipates further retrogression for EB-1 India and China in the coming months, and retrogression for EB-2 and EB-5 India as soon as June.

5.  U.S. Department of State (DOS) Announces Visa Fees Increase for Certain Visa Categories

On March 28, 2023, DOS published a final rule regarding increases to certain visa application  processing fees and the Border Crossing Card (BCC) for Mexican citizens age 15 and over.  The fee increases take effect on May 30, 2023. The changes include the following:

  • The application processing fee for non-petition based nonimmigrant visa applications (except E category) will be raised from $160 to $185 (15.6% increase).
  • The application processing fee for H, L, O, P, Q, and R categories will be raised from $190 to $205 (7.9% increase).
  • The processing fee for the BCCs for Mexican citizens age 15 and over will be raised from $160 to $185 (15.6 % increase).
  • The fee for E category visa applications will be raised from $205 to $315 (53.7% increase).

6. USCIS Extends Suspension of Biometrics Submission for Certain I-539 Applicants

USCIS announced an extension of the suspension of the biometrics submission requirement for applicants requesting an extension of stay in or change of status to H-4, L-2, or E nonimmigrant status.  The previous suspension was scheduled to end on May 17, 2023.  It has now been extended through September 30, 2023.  USCIS still retains the discretion to request biometrics on a case-by-case basis, and applicants who receive a biometrics appointment notice should plan to attend.

7. DOS Publishes a Notice Regarding Ukrainian J-1 Exchange Visitors

On April 5, 2023, DOS published a notice in the Federal Register describing the details of Special Student Relief (SSR) arrangements for eligible Ukrainian J-1 exchange visitors in the College and University Student category, effective until October 23, 2023.

8. United States Citizenship and Immigration Service (USCIS) Announces Updated Policy Guidance on Mailing Address Procedures for Applicants for Survivor-Based Immigration Relief

On April 11, 2023, USCIS announced that it has updated guidance regarding information disclosure related to Violence Against Women Act (VAWA) self-petitioners as well as T and U visa applicants.  Previously, USCIS had not published guidance in the Policy Manual specific to safe mailing address procedures in these cases, and policies were largely based upon regulations and local office practices.

Under the new guidance, USCIS will not disclose “any information which relates to a protected person,” with limited exceptions.  This includes information that USCIS may have in its records about the protected person that are not directly related to their applications for VAWA, T, or U benefits.  It also provides clear guidance on mailing address procedures for protected persons represented by an attorney or representative, protected persons without an attorney, and protected persons with multiple pending forms.

The updated guidance goes into effect on July 11, 2023.

9. USCIS Clarifies How U.S. Citizenship and Naturalization Provisions Apply to Adopted Children

On April 21, 2023, USCIS issued updated guidance clarifying:

  • The requirements for adopted children to meet the definition of a child for citizenship and naturalization purposes;
  • Eligibility for US citizenship for adopted children (both those living within and outside of the US) and how to obtain a Certificate of Citizenship for adopted children who reside in the US; and
  • Procedure for the acquisition of citizenship and naturalization when an adoption is disrupted or dissolved.

The guidance did not change the requirements, but merely updated the guidance in an effort to make them clearer to adoptive families and adoptees.

10. The Department of Health and Human Services (HHS) Proposes Rule Amending the Definition of “Lawful Presence” for Affordable Care Act Coverage to Include DACA Recipients

On April 24, 2023, HHS released a notice in the Federal Register that would expand access to health care by reducing barriers for Deferred Action for Childhood Arrivals (DACA) recipients. The proposed rule would amend the definition of “lawfully present” to include DACA recipients for the purposes of Medicaid and Children’s Health Insurance Program (CHIP).  To qualify for coverage, DACA recipients would still need to meet all other eligibility requirements for coverage in the State. The proposed effective date for this rule is November 1, 2023.  This proposed rule is currently in the commenting period, which will end on June 23, 2023.

By:  Rania Abboud, Nelli Shevchenko, and Gabriele Vennewald

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.

Canada

Impact of Strike and Change of Exemption Codes

On April 19, 2023, the Public Service Alliance of Canada (PSAC), a union which represents over 155,000 public servants in the federal government of Canada, began a strike.  This strike has affected Canadian immigration in the following ways:

  • Immigration, Refugees and Citizenship Canada (IRCC) consular and in-land extension work permit applications can still be submitted online to IRCC, but processing times may be longer. Additionally, IRCC responses to inquiries/requests may be delayed.
  • Canada Border Service Agency (CBSA) services at the port of entry are expected to be maintained during the labor disruption. However, wait times may increase at the border.

The following links provide additional details on the expected impacts of this strike.

IRCC Changes the Labor Market Impact Assessment (LMIA) exemption codes

On  April 25, 2023, IRCC implemented a new coding system to identify the different eligibilities or criteria for specific LMIA-exempt situations.  Many of these new codes were added in December 2022, but IRCC has waited to fully implement them until now. Although some codes remain the same, others have changed.  Some of the more common codes used are listed below, along with their corresponding new codes, but the full list can be found in the link here:   LMIA-Exempt Work Permit codes – Old vs. New.

LMIA- Exempt Work Permit Name:Previous LMIA Exemption Code:New LMIA Exemption Code:
Intra-company transferee (ICT) – Executive, Senior or Functional managerC12C62
ICT – Specialized knowledgeC12C63
CUSMA – ProfessionalT23T36
CUSMA – ICT Executive or Senior ManagerT24T37
CUSMA – ICT Specialized knowledgeT24T38
Colombia – Professionals or TechniciansT23F12
Colombia – ICT Executive or Senior ManagerT24F13
Colombia – ICT Specialized knowledgeT24F15
Chile – ProfessionalsT23F22
Chile – ICT Executive or Senior ManagerT24F23
Chile – ICT Specialized knowledgeT24F24
South Korea – ICT Executive or Senior ManagerT24F33
South Korea – ICT Specialized knowledgeT24F35
Peru – ProfessionalsT23F52
Peru – ICT Executive or Senior ManagerT24F53
Peru – ICT Specialized knowledgeT24F55
Bridging open work permits (BOWPs)A75A75
Certain Québec Selection Certificate (CSQ) holders currently in QuébecA75A73
Reciprocal employmentC20C20
Spouses or common-law partners of high – skilled workers (TEER 0 through 3)C41C41

China

Issuance of Visitor Visas

After easing the business visitor visa application process, Chinese Consulates are once again accepting tourist visa applications.  Please see further details here.

Germany

Change of Government Filing Fees at German Consulate in Mumbai, India

All government filing fees for processing of visa application at the German Consulate in Mumbai changed as of April 26, 2023 as follows:

The Schengen visa fee for adults changed to 7.200 INR; the Schengen visa fee for minors stays at 3.600 INR.

The national visa fee for adults changed to 6.800 INR; the national visa fee for minors stays at 3.400 INR.

Please see the updated information as well on the Consulate’s website under “Step 5 Visa Fees” here.

Japan

New Benefits in the Special Highly Skilled Professional System (“J-Skip”)

Foreign Nationals who meet the requirements of the “Highly Skilled professional (i)” or “Highly Skilled Professional (ii)” residence status and whose educational background, work experience, and income exceed certain conditions will gain the following additional advantages:

  • be allowed to employ up to two foreign domestic helpers without being required to meet any domestic situation requirements,
  • be allowed to use priority lanes at large airports when entering and leaving Japan, and
  • be allowed to have spouses to work in a wider range of activities in Japan.

For further details please see here.

Japan Future Talent Program (“J-Find”)

The Japan Future Talent Program permits graduates of outstanding overseas universities to stay in Japan for up to two years’ time, with a “Designated Activities” status (Future creation individual) if they engage in “activities to find jobs” or “preparatory activities for starting a business” in Japan within five years of their graduation.  For further details, please see here.

Border Control – Upcoming Changes

The Japanese Government announced changes in Japan’s border control measures effective midnight, April 29, 2023 JPT.   In light of the announcement that new coronavirus infections will no longer be recognized as “new influenza and other infectious diseases,” the following changes will be made to Japan’s border control measures effective midnight on April 29, 2023.

 All entrants will not be required to submit either a “negative test certificate from a test taken within 72 hours prior to departure from Japan” or a “vaccination certificate (3 times)”.

(2) The “sample inspection” currently conducted as a temporary measure for those entering from China (excluding Hong Kong and Macau) on direct flights will be changed to the same inspection upon entry for symptomatic persons as for those entering from other countries/regions.

2. However, the current inspection at the time of entry for symptomatic entrants with novel coronavirus infection and medical treatment at facilities when individuals are found to be positive for novel coronavirus infection will be continued until midnight on May 8, 2023, and the genomic surveillance of infectious diseases will start at midnight on May 8, 2023.

The latest border control measures can be confirmed here.

México

Company Registration Update With Immigration Authorities Required

Mexican companies employing foreign nationals and which are registered with the immigration authorities (INM) are required to update the annual registration with the local immigration office with jurisdiction over their address.  One of the required documents is evidence that the company fulfills it tax obligations.  Accordingly, companies must update their immigration registration each year upon filing their annual corporate tax declaration.  The registration update normally involves a site visit to the company by INM officers. Companies that do not have an updated registration are generally not able to file work permit applications.

United Kingdom 

Changes to Salary Levels, Sponsor Guidance, and Introduction of New Visa Category and Scheme

  • Changes to minimum salary levels for sponsored workers:  on April 12, 2023, the minimum salary requirements were updated for sponsored workers, including Skilled Workers and Global Business Mobility Workers.  The hourly rate for Skilled Worker was increased from £10.10 per hour to £10.75 per hour, but remains subject always to other minimum wage requirements being met.  For Skilled Workers, the general annual threshold was increased to £26,200 – an increase of £600 per year; and for shortage occupation routes, the increase is now to £20,960 per year from previous figure of £20,480.  The Global Business Mobility: Senior or Specialist Worker’s threshold also rose to £45,800 – an increase of £3,400. Scale-up route increased from £33,000 to £34,600 per year.  The annual salary calculations for the “going rate” are now based on weekly working hours of 37.5, rather than the previously used 39-hour per week calculation.  This also has the effect of increased hourly salary rates for certain roles.
  • Changes to sponsor guidance – reports on remote and hybrid working:  due to the COVID-19 pandemic, remote and hybrid working patterns became a norm for many employers.  During the height of the pandemic, the Home Office advice was that no report was required for remote working arrangements.  This position has now changed. The latest updated Workers and Temporary Workers: guidance for sponsors, Part 3, version dated 31 March 2023 sets out a reporting requirement for the licence holders to confirm to the Home Office where a worker has moved, or will be moving to, a hybrid working pattern as a more permanent working arrangement.  The guidance now confirms that a report is required where a sponsored worker:  1) changed work address, 2) moved to full time remote work, or 3) moved to hybrid working pattern. A “hybrid working pattern” is where the worker will work remotely on a regular and planned basis from their home or another address, such as a work hub space, that is not a client site or an address listed on the organization’s licence, in addition to regularly attending one or more of company offices or branches, or a client site..  Short-term changes to work patterns do not need to be reported, and only permanent working patterns need to be reported.  For fully remote workers, the Home Office may call into question why an employee is required to be present in the UK if they can effectively carry out their duties from elsewhere.  It is important that employers be able to confirm and add information about why this is the case (for example, for regulatory or tax reasons; UK-based client facing role).
  • Introduction of Innovator Founder visa:  also in April 2023, the Home Office revamped existing Innovator and Startup routes by abolishing both of the existing routes and introducing a new combined visa type – Innovator Founder visa.   New Innovator Founder visa provisions strip away some of its restrictive provisions including no longer requiring investment funds of £50,000 and allowing its holders to take up supplementary employment.  Innovator Founder endorsing bodies now consist of three approved commercial bodies and one government body.  Notably, the government introduced a cap on the fees that the endorsing bodies can charge for their services which was previously unlimited.  This is a welcome change to the route. However, restrictive and high threshold requirements for ILR still remain in place for the Innovator Founder route which may continue hindering the popularity of the route.

Introduction of Electronic Travel Authorisation (ETA) Scheme

The Home Office announced that the ETA scheme will start its roll-out from Autumn 2023 onwards.  An ETA is a digital permission to travel, similar to the US ESTA scheme. It will be required by all non-visa nationals coming to the UK for up to six months as a visitor, including transit visitors.

Qatari nationals will be the first to apply and trial the scheme, and those who plan to travel to the UK on or after November 15, 2023 will need to apply for UK ETA. Other countries in the Middle East (Bahrain, Jordan, UAE, Saudi Arabia etc.) will follow suit from February 22, 2024. Further roll-out to all other non-visa nationals is expected to come in Autumn 2024.

At the moment, most non-visa nationals do not need to apply for any kind of advanced approval for their visits to the UK. After the ETA scheme becomes operational, non-visa nationals would need to factor in time to apply for an ETA before anticipated trips to the UK.  It is likely that anyone refused an ETA will have to apply for a UK visit visa, so employers and business travelers may wish to factor the timing of this into any business visits which are planned.

The ETA will be valid for 2 years and will permit multiple entries. British, Irish nationals and anyone who already has a valid UK visa status will not need to apply for ETA.

Rules for Offshore Workers and the End of Exemption

Skilled Worker visa sponsorship now applies to employees working in UK waters and the UK territorial sea, which extends 12 nautical miles from the coast. In 2017, the Home Office introduced a concession to the Immigration Rules to allow the employment of foreign nationals who are joining vessels engaged in the construction and maintenance of offshore wind projects in UK territorial waters.  This concession was time limited and following several extensions, the latest Home Office announcement states that it will no longer continue beyond 30 April 2023.  The employers who relied on the exemption for offshore workers would need to ensure their employees have a work permit under existing UK visa routes.

The guidance also includes new duties for employers sponsoring offshore workers.  For the purposes of the guidance, an ‘offshore worker’ is defined as someone who arrives directly into UK waters for the purpose of work without first entering through UK landmass.

From 12 April 2023, employers sponsoring an offshore worker must notify UKVI of the dates that the worker:

first arrives in UK waters at the beginning of the job for which they are being sponsored, and leaves UK waters at the end of the job for which they are being sponsored.

This must be done no earlier than the date the worker arrives or leaves UK waters (whichever is relevant) and no later than 10 working days after the worker arrives or leaves UK waters.

By: Jake Campbell and Weijia (Victoria) Ma

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

1. FY2024 H-1B Cap Registration

On March 27, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that initial registration was complete and that all prospective petitioners with selected registrations selected in the lottery were notified.  Petitioners must file H-1B cap-subject petitions for selected registrations before June 30, 2023.

2. USCIS Issued Guidance on Mobile Biometrics Collection Services

On March 7, 2023, USCIS issued policy guidance to address mobile biometrics collection and biometrics collection in remote locations.  If individuals are unable to attend their biometrics in person due to health or other issues, or because they reside in remote locations, USCIS now has the discretion to offer mobile biometrics services.  USCIS may also coordinate with local law enforcement agencies or other Department of Homeland Security (DHS) agencies to collect biometrics if mobile biometrics collection services are unavailable.  Applicants must follow the instructions on the biometric notice to request mobile biometrics.

3. Premium Processing for OPT and STEM OPT Students

As of April 3, 2023, USCIS will accept premium processing requests for all OPT and STEM OPT I-765 applications, including both new or pending OPT EAD applications.  USCIS will process OPT EAD applications within a 30-day period for a premium fee of $1,500.

4. USCIS Field Offices  – Delivering Forms I-94 with ADIT (Temporary I 551) Stamps by Mail to Prove Temporary Lawful Permanent Resident (LPR) Status

On March 16, 2023, USCIS announced that LPRs may receive Forms I-94 with ADIT (temporary I-551) stamps by mail as temporary evidence of Lawful Permanent Resident status without attending an in-person appointment at a USCIS field office.  According to USCIS, this alternate Form I-94 with an ADIT stamp is an acceptable List A receipt for Form I-9 and E-Verify purposes.

LPRs may request temporary evidence of their status in the form of an ADIT stamp if:

  • They do not have their Green Card; or
  • Their Form I-90, Application to Replace Permanent Resident Card (Green Card), Form I-751, Petition to Remove Conditions on Residence, or Form N-400, Application for Naturalization, is still pending adjudication and their Green Card and extension notice have expired.

To obtain an Form I-94 with an ADIT stamp, LPRs must contact USCIS by calling at 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing impaired).  Immigration services officer will verify the LPR’s information, including their identity and physical mailing address.  The officer will then either create an in-person appointment if needed or submit a request to a USCIS field office.  Upon receipt of the request, if an in-person appointment is not needed, the USCIS field office will then review the request and mail the applicant a Form I-94 with ADIT stamp, DHS seal and a printed photo of the LPR in USCIS’s systems.

5. DHS Extended and Redesignated Somalia for Temporary Protected Status for 18 Months

On March 13, 2023, DHS announced an eighteen-month extension of the designation of Somalian nationals for Temporary Protected Status (TPS) until September 17, 2024.  To benefit from this extension, existing TPS recipients must re-register during the 60-day re-registration period from March 13, 2023 to May 12, 2023.  Eligible applicants who are applying for TPS for the first time can register during the period from March 13, 2023 to September 17, 2024.

6. Extension for Certain Ukrainians Paroled into the U.S.

DHS announced that it is considering, on a case-by-case basis, granting a one-year extension of parole and employment authorization to certain Ukrainian nationals and immediate family members who were paroled into the U.S. at a port of entry between February 24, 2022 and April 25, 2022, prior to the Uniting for Ukraine process became available. According to DHS, it will review cases based on the date of parole, and the review process can take approximately four weeks to consider and vet all the individuals in the group. 

7. COVID-Related Flexibilities

USCIS confirmed on March 23, 2023 that the COVID-related flexibility to file certain notices and requests ended on March 24, 2023.  For the notices or requests issued after March 23, 2023, USCIS must receive the response by the deadline listed in the notice or request to be considered timely filed.  If the notice or request was issued on or before March, 23, 2023, then the 60-day flexibility will apply to file the response after the deadline listed on the notice.  These notices include, but are not limited to, Requests for Evidence (RFEs), Notices in of Intent to Deny (NOIDs), Notices of Intent to Revoke (NOIRs,), and others.

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

  • The form was filed up to 90 calendar days from the issuance of a decision they made; and
  • They made that decision between November 01, 2021 and March 23, 2023.

8. USCIS Removed 60-Day Rule for Civil Surgeon Signatures on Form I-693

After a temporary waiver for applications filed December 9, 2021 to March 30, 2023, on March 31, 2023, USCIS issued guidance that permanently removed the requirement to file Form I-693 within 60 days of the civil surgeon signing the form.  Effective immediately, the new policy applies to all Form I-693s, including ones that are currently pending with USCIS.

9. U.S. Department of State (DOS) Announced Visa Fees Increase for Certain Visa Categories

On March 28, 2023, DOS published a final rule regarding increases to certain visa application  processing fees and the Border Crossing Card (BCC) for Mexican citizens age 15 and over.  The fee increases take effect on May 30, 2023. The changes include the following:

  • The application processing fee for non-petition based nonimmigrant visa applications (except E category) will be raised from $160 to $185 (15.6% increase).
  • The application processing fee for H, L, O, P, Q, and R categories will be raised from $190 to $205 (7.9% increase).
  • The processing fee for the BCCs for Mexican citizens age 15 and over will be raised from $160 to $185 (15.6 % increase).
  • The fee for E category visa applications will be raised from $205 to $315 (53.7% increase).

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

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.