H-1B Cap Registration Period Now Open

The registration period for the fiscal year (FY) 2025 H-1B cap petitions opened at noon ET March 6, 2024, and will continue to run through noon ET March 22, 2024. Employers seeking to file an H-1B cap-subject petition must electronically register during this period using a U.S. Citizenship and Immigration Services (USCIS) online account. The registration process includes basic information about the prospective petitioner and each beneficiary along with a $10 registration fee for each beneficiary. The registration process for FY 2025 is governed by the final rule published Feb. 2, 2024, which took effect March 4, 2024.

The final rule includes a new beneficiary-centric selection process to ensure all beneficiaries have an equal chance of selection. Under the new process, registrations will be selected by unique beneficiary rather than by registration. As part of the registration process this year, each beneficiary must provide a valid passport that matches the registration details. See our February 2024 blog post for additional information on the new passport expiration requirements.

As with prior years, it is expected that USCIS will receive enough registrations during the registration period to meet the 65,000 H-1B cap, with an additional 20,000 visas available for those who possess a U.S. master’s degree or higher from an accredited U.S. institution. If the cap is reached, USCIS will conduct a random lottery of the registrations it receives following the close of the registration period. Petitioners will receive an electronic notification if their registration has been selected and can move forward with filing the H-1B petition for only those beneficiaries named on the selection notice.

H-1B cap-subject petitions for those registrations that are selected in the initial drawing can be filed between April 1, 2024, and June 30, 2024. USCIS clarifies in the final rule that requesting an H-1B cap employment start date after Oct. 1 of the relevant fiscal year is permissible. Petitioners that have received H-1B selections will be able to use their USCIS organizational account to electronically file any H-1B petitions that were selected in the process, or they can file a traditional paper filing of the H-1B petition that is sent to USCIS by mail or courier.

USCIS Releases H-1B Lottery Information: Registration Process Begins March 6

U.S. Citizenship and Immigration Services (USCIS) released guidance on the Fiscal Year (FY) 2025 H-1B lottery process. The registration system will be open from noon Eastern, March 6, 2024 until noon Eastern, March 22, 2024. The application fee will remain $10 for each case entered into the system.

This year, USCIS will implement a new “Beneficiary Centric Selection” process that will help to ensure all beneficiaries have an equal chance of selection, regardless of the number of times each beneficiary is registered. Please see “Winning Futures? The H-1B ‘Lottery’ Will Open Soon. USCIS Predicts Success” for more details.

Why is H-1B filing season important?

This is the only time of year (with minor exceptions indicated below) USCIS accepts H-1B specialty worker petitions for the next fiscal year, which begins Oct. 1, 2024. For a petition to qualify in the H-1B category, the job offered must be a specialty occupation in which a bachelor’s degree (or its equivalent) is normally the minimum requirement, and the foreign national employee must hold a bachelor’s degree (or its equivalent) in the specialty defined by the position. In some cases, a bachelor’s-level threshold may be met through a combination of the employee’s education and work experience.

There is an overwhelming demand for the annual allotment of 85,000 new H-1Bs. The number of H-1B approvals requested by employers has reached the annual H-1B cap every year for more than 10 years. Last year, USCIS received 780,884 registrations within the electronic lottery system for 85,000 H-1B slots. If you have an employee that needs a “new” H-1B visa, it is imperative that you take action during the H-1B filing season or you will have to wait a full year for another opportunity.

Electronic registration process in 2024

USCIS will use same the electronic registration system from years past to implement the new beneficiary centric selection process. Employers seeking to file H-1B cap-subject petitions must complete an electronic registration for every case the employer wishes to enter into the H-1B lottery. This year, the employer must enter a valid passport or travel number for each registrant. If selected, the passport or travel number used in the H-1B petition filing must be the same number used at the time of registration. This new approach, focusing on the individual registrant, should increase selection odds.

After the registration period closes, USCIS will conduct a random selection lottery from the registrations. The date of the lottery selection has not been announced but will likely occur on or about April 1, 2024. Employers whose cases are selected will then have at least 90 days to complete and file H-1B petitions with USCIS.

Dinsmore attorneys are available to assist employers in navigating the new application process, including completion of the electronic registration and subsequent preparation and filing of selected petitions. USCIS continues to develop its electronic registration system and is expected to release additional details as the registration period approaches.

Are there certain employees we should consider registering?

Yes, four situations come to mind:

  1. Students who hold F-1 visa status and who are working for your organization under a grant of Curricular Practical Training, Optional Practical Training or STEM Optional Practical Training work permission;
  2. Certain L-1 Intracompany Transferees or TN (USMCA/NAFTA) workers who work for your organization;
  3. Candidates who are not yet working for your organization but whom you have an interest in employing in the near future; and
  4. Dependent spouses who hold H-4 status and who have been authorized to work with an Employment Authorization Document (EAD).

Why F-1 students?

Some F-1 students may qualify for an Optional Practical Training (OPT) work permission that is limited to one year following completion of their degree. Other F-1 students may be eligible for an additional 24 months of STEM OPT work permission. Either way, OPT is time-limited. Furthermore, some additional students may hold Curricular Practical Training (CPT). CPT authorizes employment off campus while the student is still taking classes. These students may be pursuing their first degree in the U.S., or they may have returned to school for an additional degree following exhaustion of their first round of OPT if they were not selected in the H-1B cap lottery. Bottom line: If you have a student working for you on OPT or CPT, it is worth evaluating if they need an H-1B cap registration.

Why L-1 intracompany transferees?

The L-1 intracompany transferee visa category applies to foreign nationals who have been employed abroad in executive, managerial or specialized knowledge capacities for at least one year with a commonly owned foreign company, and who are in the United States working for the same or a related U.S. employer.

L-1 executives or managers (L-1A) may remain in the United States for a maximum of seven years. Specialized knowledge (L-1B) employees may remain for a maximum of five years. There is no possibility of an extension once the seven-or five-year limit has been reached and the time table to complete the permanent residence process continues to climb, especially for Indian foreign nationals.

Why H-4 spouses with employment authorization documents?

H-4 spouses are eligible to apply for an H-4 Employment Authorization Document (EAD) if their spouses in H-1B status have an approved I-140 petition. The H-4 EAD allows the spouse to obtain work authorization and engage in employment in the United States. H-4 spouses working with EADs may wish to have their H-4 statuses changed to H-1B for greater long-term employment security.

Why TN employees?

While TN workers under the U.S. Mexico-Canada Agreement (formerly known as NAFTA) are not limited in employment duration like their L-1 counterparts, pursuing permanent residence while holding TN status can be problematic. Employers may want to change their TN employees to the H-1B category to facilitate permanent residence (green card) sponsorship.

Are there any exemptions from the annual H-1B cap?

Persons already counted under the H-1B cap and who need an extension of stay are not subject to the annual limitation. Similarly, persons who already hold H-1B status and are transferring to a new employer are exempt from the cap. The annual limitation applies only to persons not yet counted against the annual cap. Also, certain types of educational or nonprofit organizations that file H-1B petitions are exempt from the H-1B numerical limitation.

For more news on H-1B Lottery Information, visit the NLR Immigration section.

March Visa Bulletin: Priority Date Cutoffs Move Back with Switch to Final Action Dates

The U.S. State Department released the March Visa Bulletin Friday, showing little movement in the employment-based Final Action Dates and Dates for Filing charts. U.S. Citizenship and Immigration Services announced that in March it will use Final Action Dates to determine filing eligibility.

Because Dates for Filing are generally more progressive, the switch to Final Action Dates means that priority date cutoffs will move back next month—and fewer applicants will be eligible to file for employment-based green cards.

When comparing February’s Dates for Filing chart to March’s Final Action Date chart, the movement of cutoffs for being eligible to file for employment-based green cards is as follows:

EB-1

  • China EB-1 will move back 5½ months to July 15, 2022.
  • India EB-1 will move back three months to Oct. 10, 2020.
  • All other countries under EB-1 will remain current.

EB-2

  • China EB-2 will move back five months to Jan. 1, 2020.
  • India EB-2 will move back 2½ months to March 1, 2012.
  • All other countries under EB-2 will move back nearly three months to Nov. 22, 2022.

EB-3

  • China EB-3 will move back 10 months to Sept. 1, 2020.
  • India EB-3 will move back one month to July 1, 2012.
  • Philippines EB-3 will move back almost four months to Sept. 8, 2022.
  • All other countries under EB-3 will move back almost five months to Sept. 8, 2022.

Final Action Dates for Employment-Based Preference Cases:

Preference All Other Countries China India Mexico Philippines
EB-1 Current July 15, 2022 Oct. 1, 2020 Current Current
EB-2 Nov. 22, 2022 Jan. 1, 2020 March 1, 2012 Nov. 22, 2022 Nov. 22, 2022
EB-3 Sept. 8, 2022 Sept. 1, 2020 July 1, 2012 Sept. 8, 2022 Sept. 8, 2022

Additional Information: The March Visa Bulletin and the switch to Final Action Dates come after employment-based priority date cutoffs advanced key categories in January and saw no movement in February. This is the first time this fiscal year that USCIS has used the Final Action Dates to determine filing eligibility for employment-based applicants. USCIS will continue using the Dates for Filing chart to determine family-based filing eligibility next month.

January 2024 Update: US Department of State Announces Pilot Program for Stateside H-1B Visa Renewals

On January 18, 2024, the Department of State published an online tool that H-1B visa applicants can use to determine if they are eligible for the stateside visa renewal pilot program. Over time, it is likely that the Department of State will expand eligibility. We expect the online tool for the program described below to be updated as the program expands.

Domestic Visa Renewal Eligibility Assessment

In December 2023, the US Department of State announced a pilot program for stateside renewal of certain visas. For the first time in nearly two decades, a limited number of H-1B nonimmigrants will be able to renew their visas from within the United States.

All nonimmigrant visas are currently issued by US Embassy and Consular officials outside of the United States. Beginning on January 29, 2024, the State Department will begin allowing certain nonimmigrants to renew their expired and expiring visas inside the United States. Applicants meeting the requirements of the program may submit an online application between January 29 and April 1, 2024. This is welcome news as visa processing at Consulates and Embassies abroad has become increasingly unpredictable and fraught with delays.

This is a pilot program that will be available on a very limited basis initially. However, the State Department has indicated a desire to expand the program after the pilot allows for the resolution of any operational issues.

This pilot program will allow for limited renewal of nonimmigrant visas in the United States. Eligibility will be limited to applicants who(se):

  1. are renewing H-1B visas (H-4 and other visa classifications are not part of the pilot program);
  2. prior H-1B visa being renewed was issued by either:
  3. Mission Canada (i.e., US Consular posts located in Canada) with an issuance date from January 1, 2020 through April 1, 2023 OR
  4. Mission India (i.e., US Consular posts located in India) with an issuance date of February 1, 2021 through September 30, 2021;
  5. are nationals of countries which are not subject to reciprocity fees for H-1B visas;
  6. are eligible for a waiver of the usual in-person interview requirement;
  7. have submitted ten fingerprints in connection with a previous visa application;
  8. prior H-1B visa does not contain a “clearance received” notation;
  9. does not have an ineligibility basis that requires a waiver prior to visa issuance;
  10. 10.has an approved and valid H-1B petition;
  11. 11.was most recently admitted to the US in H-1B status;
  12. 12.is currently maintaining H-1B status in the US;
  13. 13.period of authorized H-1B admission has not expired; and
  14. 14.intends to reenter the US in H-1B status after temporary travel abroad.

Beginning January 29, 2024, eligible applicants may submit an application online through the State Department website. The State Department will allow approximately 4,000 applications each week, with 2,000 for applicants whose prior H-1B visas were issued by Mission Canada, and another 2,000 for applicants whose prior H-1B visas were issued by Mission India. Once the application limit has been reached, the application portal will be locked until the next allotment of application slots are released based on the schedule. On each Monday in February, the website will reopen for new submissions. The application period for the program will end the earlier of when all available application slots have been filled, or on April 1, 2024.

Applicants will be asked to complete an online application including:

  • a self-assessment of eligibility for the pilot program;
  • a Form DS-160 online visa application;
  • payment of the $205 non-refundable Machine-Readable Visa (MRV) fee; and
  • required documents, including:
    • a properly completed, electronically filed Form DS-160;
    • one photograph meeting Department of State specifications;
    • original passport, valid for at least 6 months beyond the visa application date;
    • original or copy of current Form I-797 Notice of Action (H-1B approval notice);
    • original or copy of the applicant’s Form I-94 (available online here); and
    • fee payment confirmation.

Processing time is expected to be approximately 6 to 8 weeks, with visaed passports returned to applicants via US postal service or courier. All documents must be submitted by April 15, 2024. The State Department aims to complete processing of all applications under this pilot program by the program’s conclusion date of May 1, 2024.

Prior to 2004, the State Department ran a similar program, allowing for H, L, O, I, E, and P visas to be renewed by mail through a State Department office in Washington, DC. Visa revalidation in the US was terminated in July 2004 due to the State Department’s inability to collect biometric data in the US as required by post-9/11 security enhancements.

The return of this program, and the ability of participants to secure a needed visa before departing the United States, will help alleviate the uncertainty associated with foreign travel for those who must secure new visas while abroad in order to return to the United States.

February 2024 Visa Bulletin: Advancement of Priority Dates for Employer-Based Petitions Remains Minimal

U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State have not indicated significant advancement in the priority dates for employer-based immigrant petitions, continuing the fiscal year (FY) 2024 trend of long wait times for immigrant visas.

Quick Hits

  • USCIS and the State Department reported minimal movement in the EB-2 and EB-3 categories for Mexico, the Philippines, and all other chargeability areas except India and China.
  • USCIS authorized use of the Dates for Filing chart.
  • Continued limitations on immigrant visas particularly impact chargeability areas of India and China where employers and individuals had hoped to take advantage of shorter wait times in the EB-1 category.

The February 2024 Visa Bulletin

USCIS will continue to use the Dates for Filing chart in the February 2024 Visa Bulletin in determining eligibility for I-485, Application to Register Permanent Residence or Adjust Status, filings. The Dates for Filing chart reflects priority dates anticipated to become current during the fiscal year, whereas the Final Action Dates chart reflects priority dates considered current and available for the specific month. This means that while an applicant may file the I-485 based on the Dates for Filing chart, the application will not be adjudicated at least until the applicant’s priority date becomes current on the Final Action Dates chart.

In summary, there is no advancement in final action dates for China and India in all employment-based categories except that the Other Workers category for India has advanced by one month. For all other chargeabilities, Mexico, and the Philippines, the EB-1 category remains current, the EB-2 category advances by fifteen days, the EB-3 category advances by one month, and the EB-4 Certain Religious Workers category remain the same.

The Final Action Dates chart is shown below.

Source: U.S. Department of State, February 2024 Visa Bulletin

USCIS has confirmed its continued use of the Dates for Filing chart for adjustment of status filing purposes. However, the dates for filing remain the same as in the January 2024 Visa Bulletin in all categories for all countries.

The Dates for Filing chart for employment-based categories follows below.

Source: U.S. Department of State, February 2024 Visa Bulletin

Impacts of Immigrant Visa Backlogs, Slow Movement, and Retrogression: EB-1 Considerations

In the January 2024 Visa Bulletin, we saw some forward movement in certain employment-based categories, particularly in the EB-1 category. This movement aligned with the hope that all EB categories, including the EB-1 category, would advance significantly or at least steadily. USCIS and the State Department had also indicated holding this hope in the August 2023 Visa Bulletin. However, the Visa Bulletins for October 2023November 2023December 2023, and January 2024 showed slow movement, with the Visa Bulletin for February 2024 indicating little to no movement at all.

The lack of advancement in priority dates particularly impacts those chargeable to India and China. While those chargeable to India and China have historically experienced long green card wait times in the common categories of EB-2 and EB-3, many employers and individuals choose to pursue the EB-1 category in hopes to secure the green card in a much shorter time. The benefits to an employer if a sponsored employee receives a green card earlier is that there is a reduction in immigration costs and a reduction in time that an employer would be beholden to immigration regulations. The employer can also rest assured that their talent can be retained beyond the limits of a nonimmigrant visa status.

However, despite the retrogression of the EB-1 categories for China and India, there still stands a benefit that visa availability wait times for the EB-1 category remains much faster than any other category. Employers considering pursuing the EB-1 process for their employees may want to note that the EB-1 holds an extremely high standard. The EB-1 is generally reserved for highly talented individuals who have risen to the top of their field or individuals who will work in a managerial capacity in addition to meeting other narrow criteria.

State-Side H-1B Visa Renewal to Begin Jan. 29, 2024

The Department of State (“DOS”)’s pilot program for domestic H-1B visa renewals will begin on January 29, 2024, and run through April 1, 2024. As H-1B visa applicants accepted into the pilot program will no longer need to incur the time and expense of applying to renew their visas through a U.S. Consulate abroad, this is a much anticipated and welcomed advancement. This is the first time since 2004 that the DOS is revisiting stateside visa renewal, as the domestic visa renewal process was discontinued, forcing applicants to apply for visa renewals abroad.

The new pilot program is limited to individuals who have previously submitted fingerprints in connection with a prior visa application, and who are eligible for a waiver of the in-person visa interview. Applicants who want to participate in the pilot program will be subject to the eligibility requirements, timeline for implementation, and procedural requirements outlined below.

Eligibility requirements:

  1. The applicant must be seeking to renew an H-1B visa. The DOS will not process applications for other visa classifications including H-4 visas for spouses and dependent children.
  2. The applicant’s prior H-1B visa must have been issued either by a U.S. Consulate in Canada between January 1, 2020, and April 1, 2023, or by a U.S. Consulate in Indiabetween February 1, 2021, and September 3, 2021.
  3. The applicant must not be subject to a non-immigrant visa issuance fee (i.e., a reciprocity fee).
  4. The applicant must be eligible for a waiver of the in-person interview.
  5. The applicant must have been previously ten-fingerprinted by the DOS in connection with a prior visa application.
  6. Any prior visa issued to the applicant must not have a “clearance received” annotation.
  7. The applicant must not be subject to any grounds for a visa ineligibility that would require a waiver prior to visa issuance.
  8. The applicant must have an approved and unexpired H-1B petition from U.S. Citizenship and Immigration Services (“USCIS”).
  9. The applicant must have been recently admitted to the United States in H-1B status with an admission period that has not expired at the time of application, and be currently maintaining H-1B status in the United States; and
  10. The applicant must intend to re-enter the United States in H-1B status after any temporary travel outside the United States.

Timeline for Implementation:

The pilot program will accept applications from January 29, 2024, through April 1, 2024, subject to the following timelines:

  1. Approximately 2,000 slots for applicants whose H-1B visas were issued by a U.S. Consulate in Canada, and approximately 2,000 slots for those whose H-1B visas were issued by a U.S. Consulate in India, will be released on a weekly basis.
  2. Visa slots will be released on January 29, 2024February 5, 2024February 12, 2024February 19, 2024, and February 26, 2024.
  3. Once all slots are filled in a given week, the DOS will not accept additional applications until the next release date.

Applicants who apply, but are determined to be ineligible, will have their applications returned unadjudicated, but will not be refunded the visa application fee.

Application Procedures and Processing Times:

Applicants must follow the procedures below to apply under the pilot program:

  1. Online application required. Instructions will include directions on where to mail a passport and supporting documents.
  2. Estimated processing times of six to eight weeks. Expedite requests will not be considered.

It is important to note that an H-1B visa issued domestically under this program does NOT provide lawful H-1B status and employment authorization in the United States or an extension of H-1B status. An H-1B visa issued under this program only serves as a “ticket” to apply for admission to the United States in H-1B status the next time the applicant travels internationally and does not govern the H-1B visa holder’s authorized period of stay and employment in the United States.

While the DOS’ pilot program is preliminary and limited in time, the program does present an encouraging step toward more efficient visa issuance and may help tackle the lengthy processing times experienced by many visa applicants at U.S. Consulates worldwide. However, the eligibility requirements for this program are very specific, limited to only H-1B visa applicants who meet a long-list of requirements.

DHS Publishes List of Countries Eligible for H-2A, H-2B Visa Programs

The Department of Homeland Security has published lists of countries whose nationals will be eligible for the H-2A and H-2B visa programs in the upcoming year.

‌Key Points:

  • The lists are mostly unchanged from last year, with one addition, Bolivia, to both lists.
  • All nationals who were eligible for the H-2A and H-2B visa programs last year will remain eligible this year.
  • Nationals of Mongolia and the Philippines will remain eligible for the H-2B visa program but not the H-2A program. Nationals of Paraguay will remain eligible for the H-2A program but not the H-2B program.
  • Nationals of countries that are not on the lists may be eligible for H-2A or H-2B visas on a case-by-case basis if U.S. Citizenship and Immigration Services makes a determination that issuing a visa would be in the national interest.

Additional Information: The countries whose nationals are eligible for the H-2A and H-2B visa programs are as follows.

Andorra The Kingdom of Eswatini Madagascar Saint Lucia
Argentina Fiji Malta San Marino
Australia Finland Mauritius Serbia
Austria France Mexico Singapore
Barbados Germany Monaco Slovakia
Belgium Greece Mongolia* Slovenia
Bolivia Grenada Montenegro Solomon Islands
Bosnia and Herzegovina Guatemala Mozambique South Africa
Brazil Haiti Nauru South Korea
Brunei Honduras The Netherlands Spain
Bulgaria Hungary New Zealand St. Vincent and the Grenadines
Canada Iceland Nicaragua Sweden
Chile Ireland North Macedonia Switzerland
Colombia Israel Norway Taiwan***
Costa Rica Italy Panama Thailand
Croatia Jamaica Papua New Guinea Timor-Leste
Republic of Cyprus Japan Paraguay** Turkey
Czech Republic Kiribati Peru Tuvalu
Denmark Latvia The Philippines* Ukraine
Dominican Republic Liechtenstein Poland United Kingdom
Ecuador Lithuania Portugal Uruguay
El Salvador Luxembourg Romania Vanuatu
Estonia

*Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.

**Paraguay is eligible to participate in the H-2A program but is not eligible to participate in the H-2B program.

H-1B Proposal Modernizes H-1B Requirements and Oversight, Provides Limited Flexibility for F-1 Student Visa Program

The White House Office of Management and Budget (OMB) has reviewed and approved a Department of Homeland Security (DHS) proposal to bring oversight of the H-1B visa program to the modern era. This proposal also creates flexibility in the F-1 student visa program for students who are the beneficiaries of timely filed H-1B cap-subject petitions.

Based upon the information published by the Department of Homeland Security, the proposed rule will:

  • Revise the regulations relating to the “employer-employee relationship”
  • Provide flexibility for start-up entrepreneurs
  • Implement new requirements and guidelines for site visits, including those conducted in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data
  • Provide limited flexibility on the employment start date listed on the petition
  • Address “cap-gap” concerns
  • Bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system
  • Clarify the requirement that an amended or new petition must be filed where there are material changes, including the streamlining notification requirements related to certain worksite changes

Written public comments must be submitted by Dec. 22, 2023, online at regulations.gov. The proposal, particularly the component aimed at reducing fraud and misuse in the H-1B registration system, is expected to be welcomed by H-1B petitioners and employee beneficiaries who have faced extreme challenges in the lottery in recent years.

Following DHS precedent, the proposed rule is expected to have a delayed effective date should it proceed.

With the fiscal year 2025 H-1B registration season fast approaching, employers and potential H-1B registrants should consider this new proposed rule when solidifying plans for the upcoming registration period.

This article was co-authored by Tieranny Cutler.

For more news on H-1B Oversight Proposal, visit the NLR Immigration section.

Employment-Based Immigration Updates for 2023

As we move deeper into the new year, the U.S. government continues to try to resolve the challenges facing the immigration system due to the disruptions of the COVID-19 pandemic and the resulting processing backlogs. These challenges may still continue, but new changes and updates have already taken effect—and more will likely come in 2023, impacting employers and the decisions they make with regard to their foreign national employees. Below are several updates the U.S. government has already released that impact employment-based immigration processes.

USCIS Proposed Fee Increases

On January 4, 2023, U.S. Citizenship and Immigration Services (USCIS) proposed changes to its fees for certain types of cases. The changes to the fees are dramatic increases to some employment-based visa types and are in an effort to make up for funding shortages that have impacted USCIS. Proposed filing fee increases for the following employment-based visa types include:

  • H-1B: $460 to $780
  • H-1B registration fee: $10 to $215
  • L-1: $460 to $1,385
  • O-1: $460 to $1,055
  • Adjustment of Status Application (I-485): $1,225 to $2,820

As we previously reported, the proposed rule—which is in the public comment phase—also includes a change to the existing premium processing timeline. The timeline would increase from fifteen calendar days to fifteen business days.

Continued Expansion of Premium Processing

On May 24, 2022, USCIS implemented a phased approach to expanded premium processing service. In 2022, premium processing was expanded to I-140 petitions, and on January 30, 2023, premium processing will be available to all EB-1C multinational executive and manager and EB-2 National Interest Waiver petitions. The January 30 expansion will include new filings as well as upgrades on pending petitions.

USCIS’s next phase of premium processing expansion will apply to the following applications:

  • Form I-539, Application to Extend/Change Nonimmigrant Status
  • Form I-765, Application for Employment Authorization

Foreign National Employees and RIFs

With changes in the U.S. economy and world markets, employers may start conducting reductions in force (RIF) to adjust to new budget goals. RIFs have the potential to impact foreign national employees. As we discussed in a recent podcast, employers may want to consider the potential impact of restructurings on workers who are in nonimmigrant status, those who are in the permanent residency process, and students working in F-1 status.

Equal Pay Transparency Laws

An increasing number of states and local jurisdictions—such as CaliforniaColoradoConnecticutNew York StateNew York CityRhode Island, and Washington—have implemented equal pay transparency (EPT) laws that now require employers to make additional disclosures regarding offered salaries and/or benefits on job requisitions and postings. This will have a significant impact on the PERM process for green card applications in these jurisdictions by mandating employers list a salary or salary range on PERM and non-PERM recruitment materials. EPT laws vary across jurisdictions as to which types of postings or recruitment efforts will require additional information.

Nonimmigrant Visa Interview Waivers Extended Until December 31, 2023

In an effort to reduce visa wait times and processing backlogs at U.S. consulates, the U.S. Department of State has extended the authority of consular officers to waive in-person interviews for certain nonimmigrant categories through December 31, 2023.

Fiscal Year 2024 H-1B Cap Preparation

With the annual H-1B lottery just two months away, employers may want to consider the foreign national employees they plan to sponsor and enter into this year’s upcoming H-1B cap or quota process. The process will start with the initial registration period, which typically opens at the beginning of March and lasts for a minimum of fourteen calendar days each fiscal year (FY). USCIS will soon announce details about the FY 2024 H-1B registration period. If enough registrations are submitted, USCIS will conduct a random selection of the registration entries to determine who will be eligible to file H-1B petitions. If selected, the employers will have ninety days to file the H-1B petitions, starting April 1. So far, there have not been any changes in this process for this upcoming cycle.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Humanitarian Parole Program for Cubans, Haitians, Nicaraguans, Venezuelans with Sponsorship

As of January 6, 2023, Cubans, Haitians, Nicaraguans, and Venezuelans and their immediate family members may be eligible for safe passage into the United States for up to two years as parolees if they have a financial supporter. This program is like the Uniting for Ukraine program. Organizations, including companies, can provide the financial support and, upon admission, the parolees may apply for Employment Authorization Documents (EADs).

Proposed beneficiaries cannot apply directly. Supporters must start the process.

The first step is for the supporter to submit a Form I-134A, Online Request to be Supporter and Declaration of Financial Support, including documentation proving they are able to financially support the beneficiaries they are agreeing to support. Only after that application is reviewed and adjudicated will USCIS notify the proposed beneficiary and provide instructions about how to proceed. The beneficiary will be told how to submit biographic information online and, if approved, will eventually receive travel instructions. They will be told to arrange to fly directly to their destination in the United States. Upon arrival at a U.S. port of entry, the beneficiary will be vetted again before being paroled into the country. Beneficiaries should not attempt to enter through a land port of entry as that will likely lead to a denial.

Financial supporters must be U.S. citizens or nationals, legal permanent residents (“green card holders”), conditional permanent residents, non-immigrants in lawful status, asylees, refugees, parolees, and beneficiaries of TPS, DACA or Deferred Enforced Departure (DED). While an individual must submit the Form I-134A, they can do so in association with or on behalf of an organization, business, or other entity that will provide some or all the support. Individuals who file the form on behalf of an organization must submit a letter of commitment or other documentation from an officer or other credible representative of the organization or business describing the monetary or other types of support they will provide. Beyond monetary support, other forms of support can include housing, basic necessities, and transportation. When an individual is submitting the form on behalf of an organization that will be providing the necessary level of support, the individual need not submit their own financial information.

Applications will be considered on a case-by-case basis. The grant of parole is discretionary, based on urgent humanitarian reasons or if the applicants would provide a significant public benefit to the United States.

To be eligible, proposed beneficiaries must:

  • Have a financial supporter in the United States;
  • Undergo robust security screening;
  • Have a passport valid for international travel;
  • Meet vaccination requirements;
  • Provide their own transportation to the United States, if approved for travel;
  • Meet other general requirements; and
  • Warrant an exercise of discretion.
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