U.S. Citizenship and Immigration Services (USCIS) has announced that it has received enough petitions to meet the congressionally mandated caps for H-1B visas for fiscal year (FY) 2025. This includes the 65,000 regular cap and the 20,000 U.S. advanced degree exemption, commonly known as the master’s cap.
Quick Hits
USCIS has reached the FY 2025 H-1B visa cap, including the 65,000 regular cap and the 20,000 U.S. advanced degree exemption (master’s cap).
Nonselection notices will be sent to registrants soon.
In the coming days, USCIS will send nonselection notices to registrants through their online accounts. Once all nonselection notifications have been sent, the status for properly submitted registrations that were not selected for the FY 2025 H-1B numerical allocations will be updated to: “Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.”
USCIS will continue to accept and process petitions that are exempt from the cap. This includes petitions filed for current H-1B workers who have been previously counted against the cap and still retain their cap number.
Registration for the H-1B cap lottery for FY 2026 is expected to open in March 2025.
For foreign nationals with “extraordinary ability” in the sciences, arts, education, business or athletics, the path to a green card normally has a much shorter route. The EB-1 extraordinary ability category is a type of employment-based, first-preference visa that has several advantages for a “small percentage of individuals” positioned to prove their expertise within a specific area. As indicated by the elite immigrant visa category, an extraordinary amount of documentation is required to meet the high threshold for EB-1 eligibility.
To provide an example of the evidentiary criteria, this category reserved for individuals with extraordinary ability requires that individuals demonstrate extraordinary ability through sustained national or international acclaim. To do so, applicants must meet at least three of the 10 criteria, or provide evidence of a major one-time achievement, such as a Pulitzer Prize, Oscar, or Olympic medal. In addition, applicants must provide evidence showing that they will continue to work in the area of expertise.
More specifically, the applicant must provide evidence of at least three of the following:
Receipt of lesser nationally or internationally recognized prizes or awards for excellence
Membership in associations in the field which demand outstanding achievement of their members
Published material about the candidate in professional or major trade publications or other major media
Judgment of the work of others, either individually or on a panel
Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
Authorship of scholarly articles in professional or major trade publications or other major media
Display of work at artistic exhibitions or showcases
Performance of a leading or critical role in distinguished organizations
Command of a high salary or other significantly high remuneration in relation to others in the field
Commercial successes in the performing arts
While U.S. Citizenship and Immigration Services (USCIS) has been consistent in detailing the criteria to be demonstrated, the specific evidence deemed acceptable has evolved over the lifetime of this visa category. Last September, USCIS updated its policy manual on employment-based first-preference (EB-1) immigrant petitions in the Extraordinary Ability classification. Specifically, USCIS provided examples of comparable evidence and the way in which USCIS will “consider any potentially relevant evidence.”
To further clarify the acceptable types of evidence, USCIS issued another policy manual update on Oct. 2. The most recent update provided additional clarification, stating:
“Confirms that we consider a person’s receipt of team awards under the criterion for lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
Clarifies that we consider past memberships under the membership criterion;
Removes language suggesting published material must demonstrate the value of the person’s work and contributions to satisfy the published material criterion; and
Explains that while the dictionary defines an “exhibition” as a public showing not limited to art, the relevant regulation expressly modifies that term with “artistic,” such that we will only consider non-artistic exhibitions as part of a properly supported claim of comparable evidence.”
These clarifications likely will provide more consistency in the adjudication process.
This article was co-authored by Tieranny Cutler, independent contract attorney.
The filing fee is $580. Fee waiver requests for Form I-131F will not be accepted.
If granted parole, these noncitizen spouses and noncitizen stepchildren of U.S. citizens, if otherwise eligible, could apply for lawful permanent residence without leaving the country.
Additional Information: In its announcement, the agency stated, “Too often, noncitizen spouses of U.S. citizens — many of them mothers and fathers — live with uncertainty due to undue barriers in our immigration system. This process to keep U.S. families together will remove these undue barriers for those who would otherwise qualify to live and work lawfully in the U.S., while also creating greater efficiencies in the immigration system, conducting effective screening and vetting, and focusing on noncitizens who contribute to and have longstanding connections within American communities across the country.”
More information about the process can be found here.
The passage of the EB-5 Reform and Integrity Act (RIA) in 2022 resulted in the most significant changes to the EB-5 investor immigrant visa program since its establishment in 1990. Among the most notable changes implemented through the RIA was the creation of new “set aside” visa categories for EB-5 investors. These set-aside categories allocate a certain amount of the 10,000 EB-5 immigrant visas available each year to investments in certain areas or projects, which include:
20% reserved for qualified immigrants who invest in a rural area;
10% reserved for qualified immigrants who invest in a ‘targeted employment area’ (TEA), which meets the requirements that apply to areas of high unemployment (unemployment rate of at least 150% of the U.S. national average); and
2% reserved for qualified immigrants who invest in infrastructure projects.[1]
Additionally, the RIA allows for the concurrent filing of the investor immigrant visa petition on Form I-526E and adjustment of status (AOS) filing on Form I-485 for those present in the U.S.[2] While certain types of EB-5 investments filed prior to the passage of the RIA remain subject to visa bulletin backlogs, which particularly impact petitioners and dependent family members born in countries with the highest demand for immigrant visas (e.g., mainland China and India), the Visa Bulletin has not yet announced a visa backlog for any of the set aside categories established by the RIA.
With the establishment of the set-aside categories, the availability of EB-5 immigrant visas is now subject to multiple factors, in addition to country of birth, under the Department of State’s Visa Bulletin, which dictates an applicant’s ability to apply for an immigrant visa or concurrent AOS (if in the U.S.) based on per-country limitations released monthly by the Department of State (DOS).[3] As the visa bulletin is based on visas approved visa petitions and the petitioners’ countries of birth (as opposed to petitions filed with U.S. Citizenship and Immigration Services (USCIS) and currently in process), investors understandably are faced with a level of uncertainty when strategizing the timing of their investments and associated petition filings. This is due to the uncertain nature of the continued availability of immigrant visas, which can retrogress with little notice based on the DOS’ contemporaneous issuance of immigrant visas under the EB-5 program. This post will outline data and strategies available to investors to clarify questions related to potential changes to the visa bulletin that may impact EB-5 immigrant visa availability in the coming months. As the progression of the Visa Bulletin is subject to internal data shared between USCIS and the DOS, as well as the DOS’ internal visa issuance metrics, some level of obscurity and uncertainty should be accounted for when planning for immigrant visa petition filing, but the below is meant to help address and account for these inherent uncertainties.
Background on the Visa Bulletin
In connection with the U.S. government’s policy imperative to encourage a diverse pool of immigrants to the U.S., family- and employment-based immigrant visas are subject to a specific allocation of available visas every federal fiscal year. A total of approximately 140,000 immigrant visas are available every fiscal year for employment-based immigrant visas, including the EB-1, EB-2, EB-3, EB-4, and EB-5 immigrant visa categories. Of the total of 140,000 immigrant visas available annually, approximately 10,000 are allocated to the EB-5 investor visa program, which are also subject to the below per-country visa quotas.
To that end, no one country (based on the applicant’s country of birth) can be allocated more than approximately 7.1% of all available immigrant visas.[4] Importantly, the DOS recently revised its interpretation of the statutory language on the 7.1% per country limit to clarify that it applies in any preference only if a country’s use of visas exceeds 7.1% of all employment-based preferences together.[5] For example, the 7.1% per country limit for Vietnam will only start in the EB-5 category if Vietnam were to reach the 7.1% limit for the overall 140,000 employment-based visas available. In the past, investors born in Vietnam and Taiwan also have been high users of EB-5 visas; however, with this new interpretation by DOS, they will likely never be subject to a per-country limitation for EB-5 again given that these countries generally have never reached 7.1% of the overall 140,000 employment-based immigrant visas.
The above only tells part of the story on immigrant visa allocation. This is because in addition to the total of 140,000 employment-based immigrant visas allocated yearly to all countries, unused visa numbers from prior fiscal years (i.e. immigrant visas that are available to those born in under-subscribed countries, but not utilized) roll over for use by applicants of over-subscribed countries according to priority date and availability within the immigrant visa preference category.[6] Moreover, unused family-based immigrant visas may also be utilized to address excess demand in employment-based categories.[7] While the specific number of unused immigrant visas varies considerably year to year, there tends be some available unused family-based visa numbers from under-subscribed categories each federal fiscal year based on the most recent data made available by USCIS and DOS.[8] Additionally, unused EB-5 numbers from the unreserved ‘general pool’ of EB-5 immigrant visas available yearly (based on worldwide applicant demand), are reallocated to over-subscribed EB-5 categories, including the above-referenced EB-5 set-aside categories created post-RIA implementation.[9]
EB-5 Investor Immigrant Program Data
With the dynamic nature of the immigrant visa allocation process in mind, there is no simple, readily available formula that can help predict the numbers of EB-5 immigrant visas that may be available in a given fiscal year, nor one that can precisely predict how soon retrogression may impact the EB-5 program, particularly in connection with I-526E petitions filed by investors born in traditionally high-demand countries, like China and India. This process is made difficult because USCIS and the Immigrant Investor Program Office (IPO) have not released important statistics to the public that would allow investors to accurately predict how long of a backlog may form in the various set-aside categories. However, we do have some data.
To solve for the lack of government-released data, stakeholders have filed Freedom of Information Act (FOIA) requests that provide more nuanced data on the government’s current processing volumes. Notably, recent data disclosures made available through FOIA requests found a significant increase in demand for the rural set-aside category, but demand remains “below the needed level to absorb the near-term annual visa supply.” The data released also showed that demand for high unemployment TEA set-aside continued to increase through the end of 2023, which may result in a backlog for that specific set-aside category.[10] As expected, demand remains particularly high for immigrant applicants born in mainland China; the below chart published in connection with the data disclosed pursuant to FOIA provides further insight on the processing volumes:
TOTAL NUMBER OF I-526/I-526E FILED FROM APRIL 1, 2022,TO NOVEMBER 2023, BY TEA CATEGORY AND COUNTRY OF CHARGEABILITY (LATEST STATS AS PER AIIA FOIA DATA)[11]
China
India
Taiwan
Rest of World
Total
Total %
Rural
767
174
18
134
1,093
32%
High unemployment
976
375
209
625
2,185
63%
Infrastructure
0%
Multiple TEA categories
7
3
5
16
0.5%
Not TEA
26
21
6
97
150
4%
Total
1,776
573
233
861
3,444
100%
Total %
52%
17%
7%
25%
100%
While the data above is subject to change and specifically reflects government filings through November 2023, and spanning multiple federal fiscal years (2022-23), it shows that about two times as many high unemployment set-aside I-526E Petitions were filed as compared to rural area set-aside I-526E Petitions. However, in June 2024, USCIS also released their January to March 2024 form data, which revealed that an additional 1,810 I-526E Petitions had been filed with USCIS over that three-month period, leaving 3,672 I-526E Petitions pending as of March 31, 2024.[12]
Importantly, the quarterly USCIS data shows a huge number of new I-526E Petitions were filed during Q2 2024. Half of all I-526E Petitions pending as of the date of this blog were filed just in Q2 of 2024. USCIS has not released any statistics to show the breakdown of I-526E Petitions filed in the high unemployment or rural area set aside categories. Anecdotal evidence from stakeholders and projects seems to show a strong uptick in the demand for rural area projects, and it is possible that many of these new I-526E Petitions were for rural area set-aside visa numbers. More data from USCIS will be required on this point to give investors a more accurate picture on visa wait times in both rural area and high unemployment set-aside projects.
Moreover, the USCIS Q2 2024 data shows that the agency only completed review of 356 I-526E Petitions this fiscal year. The statistics do not break down completions by approvals or denials. Given the small number of case completions during this fiscal year, no visa retrogression has been announced in the Visa Bulletin because an insufficient number of I-526E Petitions have been approved to necessitate announcement of retrogression for any country.
In fact, at a recent conference, the DOS indicated that there is a record amount of EB-5 visas available for this year and predicted again for next year. Specifically, DOS is predicting that there are more than 14,000 unreserved EB-5 visas and more than 8,000 set-aside visas available in FY 2024, and that there will be more than 11,000 unreserved EB-5 visas and more than 6,800 set-aside visas available in FY 2025. Together, that is more than 14,800 set-aside visas over this fiscal year and next, split between rural and high unemployment according to their percentages. This would mean approximately 9,800 rural visas and 4,900 high unemployment EB-5 visas are available over this fiscal year and next, with additional high numbers remaining available in the unreserved EB-5 category. Even assuming that each petitioner also brought two dependent applicants with them to the U.S., the sheer number of EB-5 visas available in these categories over this year and next would provide many immigrant visa numbers for applicants and their dependents in both set-aside categories, and drastic retrogression wait times are not yet predicted.
Additionally, note that the data provided reflects raw numbers of petition filings and does not take into account potential roll overs of additional unused immigrant visas, as noted above. In addition, applicants born in under-subscribed countries, like Vietnam and Taiwan, with robust demand for EB-5 immigrant visas that may qualify for the set-aside category, still have the option to choose to process under the general pool of unreserved EB-5 visa numbers, thereby freeing up additional availability under the reserved high-unemployment and rural TEA set-aside categories for individuals born in mainland China. This selection is typically made at the time that the National Visa Center (NVC) processes the immigrant visa application for applicants based outside of the U.S.
Key Takeaways
There are a record number of EB-5 visas available to applicants in both the high unemployment and rural area set-aside categories in FY 2024 and FY 2025. While stakeholders need more data from USCIS on the breakdowns of pending I-526E Petitions between the high unemployment and rural set-aside categories, there is a record number of visas available and extensive backlogs are not expected to occur like those experienced by pre-RIA I-526 Petitions.
File the I-526E Petition and associated AOS applications concurrently if possible. Although visa numbers remain available in the set-aside categories even for traditionally high-demand countries, the dynamics associated with the DOS Visa bulletin may result in retrogression with little notice. Filing concurrently where eligible can provide multiple benefits in the event of retrogression, including:a. Locking in dependent child’s age under chart A or chart B of the DOS Visa Bulletin, which under the Child Status Protection Act (CSPA) allows for a tolling of age progression while the petition is in process and based on the unavailability of a visa number; and
b. Obtaining short-term U.S. immigration benefits that allow for work (employment authorization document (EAD)) and travel (advance parole (AP)) while the USICS processes the AOS filing.
Individuals born in under-subscribed countries with qualifying investments in rural or high-unemployment TEAs should consider opting for processing under the general unreserved pool where possible. This would allow for use of additional reserved immigrant visas in the set-aside categories by those born in countries with higher demand for EB-5 immigrant visas, such as China and, potentially, India.
Monitor visa bulletin progression and available government data. It will remain important to continue monitoring Visa Bulletin releases and planning for potential retrogression. As noted above, while the set-aside categories created under the RIA remain broadly available for immigrant visas and concurrent AOS processing, conditions may change with little notice as the government processes its backlog of filed EB-5 petitions or if USCIS speeds up its processing of I-526E Petitions.
[8] See, e.g., “Employment-Based Adjustment of Status FAQs,” USCIS, May 20, 2024 (“DOS determined that the FY 2023 employment-based annual limit was 197,091, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023. In addition, 6,396 EB-5 visas carried over from FY 2022 to FY 2023 in the reserved subcategories.”)
Coalition for the American Dream published the report days ahead of the 12th anniversary of the DACA program on June 15.
Current DACA recipients number more than 500,000. The report finds that future long-term economic losses and costs could approach $1 trillion over the lifetimes of DACA recipients.
Other economic and workforce impacts include:
As many as 168,000 U.S. jobs in DACA-owned businesses could be lost.
U.S. workforce losses could include 37,000 healthcare workers, 17,000 STEM professionals and 17,000 educators.
Lost business training and recruitment costs for current DACA employees could reach $8 billion.
Additional Information: The report’s demographic and economic estimates and business impacts are based in part on data collected in the U.S. Census Bureau’s 2022 American Community Survey, the March 2022-2023-2024 Current Population Surveys and data from U.S. Citizenship and Immigration Services.
Coalition for the American Dream is an organization of more than 100 businesses, trade associations and other groups representing every major sector of the U.S. economy and more than half of American private sector workers. Its mission is to seek the passage of bipartisan legislation that gives Dreamers a permanent solution.
BAL Analysis: The report notes if DACA ended and work authorizations were denied renewal, 440,000 workers would be forced from the U.S. workforce over a two-year period, with the most acute impact on health, education and STEM occupations. The business community continues to show strong support for DACA and the crucial role Dreamers play in the U.S. economy. Given the uncertain environment, DACA recipients who qualify for a renewal are urged to apply for one as soon as they can.
As summer and baseball season are now in full swing, so is the H-1B filing season. The U.S. Citizenship and Immigration Services (USCIS) completed its initial round of selections on April 1, prompting immigration practitioners and employers to get filings across the home plate by June 30. However, many potential employees are stuck in the dugout, so to speak, unable to get in the game, as they were not selected in the H-1B lottery.
The H-1B visa category provides temporary work authorization to individuals employed in a role involving a specialty occupation. Most commonly known for its restrictive numerical limitations, the H-1B visa category caps the number of new visas issued each year at 65,000, with an additional 20,000 available to graduates of U.S. master’s degree programs. While 85,000 H-1B visa holders would exceed more than twice the occupancy of the Atlanta Braves’ Truist Park, it has become increasingly difficult to obtain an H-1B visa under the current lottery system due to a high volume of submissions, the increased likelihood of fraud, and the number of submissions designed to beat the system.
While the H-1B remains a first choice among U.S. employers for the temporary employment of foreign nationals, many wonder whether it continues to be a game worth playing. Such thoughts have prompted employers to turn to other non-immigrant visa lineups, such as the H-1B1, E-3, TN, and O-1:
H-1B1, Specialty Occupation Workers from Chile or Singapore
The H-1B1 visa is a subcategory of the H-1B category, providing work authorization options to specialty occupation workers from Chile and Singapore. Current laws limit the annual number of qualifying foreign workers eligible to obtain an H-1B1 visa to 6,800, allocating 1,400 for nationals of Chile and 5,400 for those of Singapore.
The greatest advantage of this subclassification is the ability to forego the H-1B visa lottery. Further, the H-1B1 visa does not have a six-year limit. The period of employment is one year, with subsequent extensions available in one-year increments.
E-3, Specialty Occupation Workers From Australia
Applying only to nationals of Australia, the E-3 nonimmigrant visa classification provides another option for specialty occupation workers. Similar to the H-1B1, participation in the annual H-1B lottery is not a prerequisite to admission in E-3 status.
TN, Temporary Workers From Mexico and Canada
Yet another alternative to the H-1B visa is the TN visa, designated for select professionals who are citizens of Canada and Mexico. The U.S. Mexico-Canada Agreement, formerly the North American Free Trade Agreement (NAFTA), provides special economic and trade relationships for the U.S., Canada and Mexico. This classification permits qualified Canadian and Mexican citizens to work temporarily in the U.S. at a professional level. Professions on the list include accountants, engineers, lawyers, pharmacists, scientists and teachers.
Employers focused on expediency surely are interested in this nonimmigrant visa category. Not only does the TN visa forego the H-1B lottery, but it also can circumvent the Labor Condition Application requirement, which is a Department of Labor process requiring approximately seven days.
O-1, Individuals of Extraordinary Ability
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and received recognition nationally or internationally for such achievements. Those eligible for O-1A classification are individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).
The O-1B visa category is intended for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.
Of particular importance, one of the top benefits of an O-1 visa in comparison to an H-1B is the lack of annual limits on the number of O-1 visas issued. Moreover, as numerical caps and a lottery process do not restrict the O-1 visa, the application period is not limited to a specific filing window. Further, unlike some nonimmigrant visa categories, O-1 filings are not restricted by an annual filing period, and the overall cost of the O-1 process can be significantly less.
The O-1 visa category also boasts employer flexibility as the beneficiary does not have to be directly employed by the entity for which they will work, but could work for a U.S. agent. The O-1 also provides significant relief with respect to the potential length of the visa, as this nonimmigrant visa classification offers unlimited one-year extensions of the initial three-year period.
As many potential H-1B employees have not received the call-up, these other nonimmigrant visa categories present viable alternatives.
Tieranny L. Cutler, independent contract attorney, co-authored this article.
The cost of running an immigration program at a U.S. company just went up — a lot.
On Jan. 31, U.S. Citizenship and Immigration Services published a final regulation to raise immigration filing fees — and high-skilled categories saw some of the biggest increases. On April 1, the fee for an H-1B petition increased from $460 to $780 (70%), and the fee for an L-1 intracompany transfer petition increased from $460 to $1,385 (201%). All of that is before a new $600 Asylum Program Fee ($300 for small employers) is added on for each employment-based nonimmigrant or immigrant filing. Analysis from the BAL Government Strategies team shows that a typical small- or medium-sized company may see the amount they spend on filing fees more than double.
None of this is good news.
At the same time, the fee increases present an opportunity for companies to take stock of their immigration programs and reassess whether they are doing everything they can to take advantage of policy improvements that the Biden administration has made.
The fee increases are the first since 2016, and USCIS has said it will put the additional revenue to good use — not only by helping them meet the challenge of expanded humanitarian programs but also by improving processing times and reducing backlogs for employment-based filings. While the business community was clear that it would have liked to see USCIS implement additional efficiencies before raising fees, the administration has shown good faith by working to streamline programs with its current funding level. Consider:
Improvements to the H-1B program: Just days after it published the regulation to raise fees, USCIS published a separate regulation to overhaul the H-1B registration and selection process. The big change is a switch from a petitioner- to a beneficiary-centric lottery, so that each H-1B beneficiary may be selected only once, no matter how many registrations are submitted on his or her behalf. This change is designed to eliminate incentives for bad actors to submit multiple H-1B registrations for the same individual — and has the potential to reduce the overall number of registrations and boost the H-1B selection rate. The change enjoys broad support in the business community. So do the introduction of online H-1B filings and a new pilot program that allows some H-1B holders to renew their visas in the U.S. without going abroad.
Extended employment authorization: In September 2023, USCIS increased the maximum validity of Employment Authorization Documents (along with Advance Parole travel documents) to five years for employees with pending green card applications. This change did not draw as much attention as the H-1B overhaul but has proved to be a boon to employers. Previously, green card applicants had to renew their employment authorization every two years. The longer validity saves not only time and money but also adds predictability. Improved EAD processing times are an additional benefit.
Flexibility in the green card process: With the labor certification process (PERM) becoming increasingly difficult, employers continue to turn toward national interest waivers as a green card strategy. This trend is due in part to the increased difficulty of the PERM process when employers have had layoffs. The administration published new guidance on national interest waivers for EB-2 visas in January 2022 and made EB-2 visas a priority in an executive order on intelligence published last fall. The Department of Labor has also asked for public input on whether to revise its list of Schedule A job classifications that do not require labor certification. This list has not been updated since 2004.
Improved visa processing abroad: The U.S. State Department issued more than 10.4 million nonimmigrant visas in the last fiscal year. This figure was nearly a record and the highest total since 2015. It also highlights a marked turnaround in visa processing efficiency at U.S. embassies in consulates following years of reduced staffing and delayed wait times. State Department fees also went up last spring. And while the State Department and USCIS are different agencies with different challenges, the success in improving visa processing abroad is consistent with the Biden administration’s broader overall efforts to improve immigration services.
Understandably, we have heard plenty at BAL from employers frustrated with how dramatically fees increased. What we have not heard, however, is that employers plan on dramatically cutting back their immigration programs. This is good news — and not only because it means companies will continue to recruit top workers to help keep them competitive.
Despite higher fees, there is ample evidence that it is a good idea to invest in foreign workers now, at a time of generally favorable policies. Take the H-1B program as one example. The H-1B registration fee has increased from $10 to $215 for next year’s cap registration, which gave employers an incentive to put eligible employees in the lottery this year if they were able to do so. On top of that, for beneficiaries that were not selected, employers have more favorable options for H-1B alternatives now than they previously did. The administration has added new qualifying fields of study to its STEM Designated Degree Program List, making more recent graduates eligible for extended Optional Practical Training. Officials also provided clarifying guidance on O-1 “extraordinary ability” visa criteria, making this category an increasingly common option.
None of the administration’s immigration programs are ensured to continue under future administrations. In the current political environment, there is no telling how long they will last.
Donald Trump has emerged as the Republican Party’s presumptive nominee for president. Whatever you think of Trump’s politics, it is plainly true that when he was in office, it was harder to recruit and retain high-skilled foreign workers. H-1B denial rates skyrocketed and processing backlogs ballooned at understaffed agencies. COVID-19 only made the problems worse.
Nobody knows what Trump may do if he wins this year’s election, but it certainly seems unlikely he would decrease immigration fees. Employers could be stuck with higher rates for reduced services.
The adage “never let a crisis go to waste” is instructive as employers face higher costs and uncertainty about the future of favorable immigration policies. While no one enjoys paying higher fees, employers should review their immigration strategies to take advantage of easier processes now before it’s too late.
The fee increase will be established on all benefit requests postmarked Apr. 1, 2024, and after.
What Are the Fees Used for and Are There Exceptions?
Benefit request fees make up the primary source of funding for USCIS services. The fees fund benefit requests for “refuges, asylum [seekers], and certain other applicants and petitioners.” Most of the fees adjusted in 2024 have not been increased since 2016, so they now reflect inflation costs from the past 8 years.
The USCIS hopes this increased revenue will help slash processing times and address application backlogs that were affected by increased application volume and the COVID-19 pandemic. However, achieving this will depend on staffing and continued volume of applications.
Acknowledging that some applicants will not be financially able to meet fee requirements, the USCIS determined that an applicant with “an annual gross household income at or below 125 percent of the Federal Poverty Guidelines” meets the requirements for a fee waiver. These household income numbers will continue to update along with the U.S. Department of Health and Human Services’ Federal Register. Applicants seeking a waiver will need to provide documentation of their income including:
Form 1040,
IRS Form W-2,
Pay stubs, or
Support/benefits statements or affidavits from organizations sending financial aid.
A USCIS Deputy Director has the authority to grant a fee exemption required by 8 CFR 106.2. According to USCIS Fee Schedule, to be granted a waiver, the Deputy Director “must determine that such action would be in the public interest, the action is consistent with the applicable law, and the exemption is related to one of the following:”
An agreement between the U.S. government and another nation or nations; or
USCIS error.
USCIS Fee Increases
Please note that the above chart does not reflect all fee increases. For the full list of adjusted fees, please visit USCIS’s Filing Fee FAQs page with the entire breakdown.
Fee increases range from anywhere between $10 to ~$30,000 and affect individual, entrepreneurial, and employment related forms. For reference, the I-956F Application for Approval of an Investment in a Commercial Enterprise is increasing $29,900 while the USCIS Immigration Fee is increasing only $15. For some forms, especially those that consider biometric services, the fees are decreasing or are completely free.
For applicants who are still in the visa process and worried about the fee increase, getting in all materials PRIOR to Apr. 1, 2024, may ensure that the current fee is charged.
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.
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:
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;
Certain L-1 Intracompany Transferees or TN (USMCA/NAFTA) workers who work for your organization;
Candidates who are not yet working for your organization but whom you have an interest in employing in the near future; and
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.
