Fakhoury Global Immigration
Department of State Offers Guidance on H-1B Domestic Renewal Program
The U.S. Department of State (DOS) has issued guidance for individuals interested in participating in the H-1B Domestic Renewal pilot program. The program will begin to accept applications on January 29, 2024, and will continue until April 1, 2024, or when all application slots are filled, whichever comes first. DOS provides instruction on applying for the program and answers frequently asked questions such as
- Which applicants qualify for participation in the pilot program?
- What documents and fees are required for a domestic H-1B visa renewal?
- How does an applicant establish that they are working or living in the United States?
- How long will it take to process an application?
- How can an applicant check the status of her/his application?
Other questions deal with processing logistics, refusals and ineligibilities, change of employers, change of visa status (from J-1 to H-1B) and family members.
The guidance can be found on the DOS website at: https://travel.state.gov/content/travel/en/us-visas/employment/domestic-renewal.html.
USCIS May Excuse Untimely Filed Extension of Stay and Change of Status Requests
On January 24, 2024, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance to provide that USCIS, "in our discretion and under certain conditions, may excuse a nonimmigrant's failure to timely file an extension of stay or change of status request if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner."
USCIS said that extraordinary circumstances may include, for example, work slowdowns or stoppages involving a strike, lockout, or other labor dispute, or the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those certifications.
USCIS Final Fee Regulation Cleared by Office of Management and Budget
On January 22, 2024, the Office of Management and Budget (OMB) cleared the USCIS Final Fee Rule. Introduced by the Department of Homeland Security (DHS) in January 2023, the USCIS fee rule is projected to increase fees for many nonimmigrant and immigrant visa processing services.
- For example, the rule has proposed significant increases in H-1B (70%), L-1 (201%), and O-1 (129%) visa processing as well as for adjustment of status petitions (up to 130%). It is anticipated that the higher fees will be announced before the beginning of the H-1B Cap registration season.
- In addition to increasing the visa program fees, the new regulation is expected to increase the H-1B cap registration fee (currently $10) before the beginning of the H-1B cap registration season.
- The new regulation is likely to impose an asylum program fee for I-129 and I-140 petitions. (The rule proposed an asylum fee amount of $600 per petition).
- The new regulation may also "unbundle" the shared fee for the adjustment of status form (I-131, I-765, I-485) so that each form would require a separate fee.
- Other possible regulatory changes include extending the adjudicatory periods for premium processing petitions by costing business days rather than calendar days.
- The actual fee increases will not be known until they are published in the Federal Register.
Department of Labor Seeks OMB Approval, Comments on
O*Net Data Collection Program
The Department of Labor (DOL) has submitted the O*NET Data Collection Program to the Office of Management and Budget (OMB) for review and approval.
DOL said that O*NET is "an ongoing effort to collect and maintain current information on the detailed characteristics of occupations and skills for more than 900 occupations. The resulting database provides the most comprehensive standardized source of occupational and skills information in the nation."
OMB will consider all written comments that the agency receives by February 16, 2024.
USCIS Is Set to Enable Online Collaboration and Submission of H-1B Registrations
U.S. Citizenship and Immigration Services has announced the upcoming launch of a package of customer experience improvements for H-1B cap season.
- The measures are expected to increase efficiency and ease collaboration for organizations and their legal representatives.
- USCIS will launch organizational accounts for non-cap filings and the fiscal year (FY) 2025 H-1B cap season. The introduction of organizational accounts will allow multiple individuals within an organization, such as a company or other business entity, and their legal representatives to collaborate on and prepare H-1B registrations,Form I-129, Petition for a Nonimmigrant Worker, and associatedForm I-907, Request for Premium Processing Service.
- USCIS expects to launch the organizational accounts in February 2024, with online filing of Forms I-129 and I-907 following shortly thereafter.
- In addition to streamlining the Form I-129 H-1B petition process, these changes should help reduce duplicate H-1B registrations and other common errors.
- USCIS will also transition the paper filing location for Forms I-129 and I-907 from service centers to the USCIS lockbox as part of their efforts to increase efficiency by standardizing processes and reducing costs.
During a public engagement session, U.S. Citizenship and Immigration Services (USCIS) unveiled additional details about its launch of organizational accounts in February 2024, in time for non-cap filings and the fiscal year 2025 H-1B cap season. USCIS noted:
- A company can designate representatives who will have the authority to review, sign on behalf of the company, and pay (if necessary) the filing fees associated with submissions. Those designated individuals will be deemed as the "Administrators" for the company and will need to either create their own USCIS accounts or leverage their existing ones if they have served as company representatives for H-1B cap registration purposes.
- For companies, Administrators will have a wide range of account management capabilities, from creating working Groups, inviting other Administrators, Legal Representative Teams, or regular working Group Members to collaborate on projects within the created corporate Group. Administrators are also the only account holders authorized to review, sign, and submit filings on behalf of the organization.
USCIS Increases Premium Processing Fees
The U.S. Citizenship and Immigration Services (USCIS) has published a final rule in the Federal Register which will increase the premium processing fees for various immigration benefit types.These fee increases are due to an inflation adjustment and will take effect on February 26, 2024:
- Premium processing fees will increase from $2,500.00 to $2,805.00 when filing Form I-129 petition for the H-1B, L, O, P, TN, or E nonimmigrant categories.
- The premium processing fee will increase from $2,500.00 to $2,805.00 when filing Form I-140 petition for various employment-based green card categories.
- With respect to Form I-539, the USCIS will increase the premium processing fee from $1,750.00 to $1,965.00 for certain F, M, E, J, O, P, etc. nonimmigrant categories and will increase the premium processing fee for the Form I-765 application (only eligible for certain F-1 nonimmigrants) from $1,500.00 to $1,685.00.
If USCIS receives a Form I-907 postmarked on or after February 26, 2024, with the incorrect filing fee, it will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (such as UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt, USCIS said.
USCIS Issues Policy Guidance on "Ability to Pay" Requirement
When Adjustment of Status Applicants Change Employers
U.S. Citizenship and Immigration Services (USCIS) today issued policy guidance on how the agency analyzes an employer's ability to pay the proffered wage for immigrant petitions in certain first-, second-, and third-preference employment-based immigrant visa classifications, including instances when the sponsored worker is changing employers.
- Generally, employers seeking to classify prospective or current employees under the first-, second-, and third-preference employment-based immigrant visa classifications that require a job offer must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition until the beneficiary obtains lawful permanent residence.
- When the beneficiary of a Form I-140, Immigrant Petition for Alien Workers, moves (or "ports") to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) while the Form I-140 is pending, USCIS determines whether the petitioner meets the ability to pay requirements only by reviewing the facts in existence from the priority date until the filing of the Form I-140.
- This guidance, contained in Volume 6, Part E, Chapter 4 of the Policy Manual, is effective immediately upon publication and applies prospectively to petitions filed on or after that date.
- The guidance builds on previous guidance from March 15, 2023, on how USCIS analyzes employers' ability to pay the proffered wage, and is one of many recent actions to support adjustment of status applicants.
- USCIS is also making other minor technical revisions to improve clarity and readability, and otherwise streamline existing guidance.
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