Business Immigration Insights

On January 31, 2024, the U.S. Citizenship and Immigration Service (USCIS) published a final rule to adjust certain immigration and naturalization benefit request fees, effective April 1, 2024. Employers will see significant increases on the fees they pay to submit petitions for workers and to sponsor employees for permanent residence. The agency stated that the fee increases will “…allow USCIS to recover a greater share of its operating costs and support more timely processing of new applications.” This is the first major adjustment in USCIS filing fees since 2016. Notably, the Service is implementing different fees for each type of visa classification sought on Form I‑129 nonimmigrant worker petition, replacing the uniform $460 Form I‑129 filing fee across all classifications. 

U.S. Citizenship and Immigration Services (USCIS) released additional details about the FY 2024 H-1B electronic registration that ran in March 2023. One item of interest is that the number of registrants (individuals) with only one submission saw a relatively modest increase from 309k to 350k, while the number of registrants with multiple submissions more than doubled from 165k to 409k. In contrast, the first year of the H-1B Cap Registration program (FY2021) saw only 28k individuals with multiple submissions - an increase of 1,454% in just three years.

A new rule, “Implementation of the Emergency Stopgap USCIS Stabilization Act,” published in the Federal Register on March 30, 2022, will open the popular USCIS “premium processing” service to new categories of immigration filings that are currently subject to extraordinarily long backlogs.  USCIS will roll out the expansions in stages.

In the newest sequel to the Shergill v. Mayorkas settlement, US Citizenship and Immigration Services (USCIS) has now updated its Policy Manual to address documents that E and L nonimmigrant spouses may show their employers to prove their work eligibility.

Following the settlement of a US Citizenship and Immigration Services (USCIS) lawsuit that finally recognizes that dependent L and E spouses are able to work lawfully incident to their status, US Customs and Border Protection (CBP) updated its admission system to designate on the I-94 admission records those spouses who are authorized to work without applying for an EAD.  L and E spouses should be admitted with an “S” after their status to indicate that they are spouses authorized to work.  The new I-94s do not explicitly state “work authorized”, but the “S” designation tells employers for I-9 purposes that they are authorized to work for the validity of their I-94s. 

After suspending all “premium processing” for more than two months during the COVID-19 pandemic, USCIS today announced it will again accept premium fees (currently, $1,440 per form) and requests for expedited adjudication (currently, 15 calendar days) for Forms I-129 (Petition for Nonimmigrant Worker) and I‑140 (Immigrant Petition for Alien Worker).

On March 25, we reported that US Citizenship and Immigration Services had closed all local domestic offices, including asylum offices, field offices, and application support centers, due to COVID-19 contagion risks.  Those closures, while initially short term, have been extended several times and remain in effect as of today.

In 2019, the large policy and enforcement shifts signposted in 2017 and 2018 continued to play out with stricter immigration enforcement across the board. While we don’t expect to see seismic shifts in the coming year, there are a few issues to watch for in 2020.

(1) H-1B “Specialty Occupation” Definition Change Likely to Stall in Court

USCIS has indicated it will be announcing an official change to the definition of “specialty occupation.” While we have already seen a detrimental shift in the H-1B adjudication process, this would be an official regulatory change. We expect that any attempt to re-interpret the H-1B statute as narrowly as possible will face a lengthy court battle.

USCIS Acting Director Ken Cuccinelli announced today, via Twitter, that USCIS will close all but seven of its international field offices, leaving only the offices in Beijing, Guanghzou, Guatemala City, Mexico City, Nairobi, New Delhi and San Salvador to service the many US citizens and permanent residents who reside abroad. USCIS has also made the official announcement on their website. The decision leaves the entire continents of South America and Europe without a USCIS office.  Although not ideal, this announcement still marks a welcome change from USCIS’s prior announcement, in March 2019, by then-Director Francis Cissna that all twenty international offices would be closed and their workload shifted to domestic offices.

The United States Citizenship and Immigration Services (“USCIS”) has announced that the suspension of premium processing for FY2019 H‑1B cap cases, announced on March 21, 2018, has been extended until possibly February 2019.

USCIS also announced that effective September 11, 2018, premium processing will be suspended for H‑1B cases filed at the Vermont and California Service Centers, except for:

1. H-1B petitions filed by cap-exempt petitioners or by petitioners who will be employing beneficiaries at qualifying cap-exempt institutions, entities, or organizations; or

On June 28, 2018, U.S. Citizenship and Immigration Services issued a policy memo telling adjudicators when they are required to issue Notices To Appear after denying or while processing a petition or application for benefits.  The NTA is the charging document that, once filed with the Executive Office for Immigration Review (a branch of the U.S. Department of Justice), puts an individual into formal removal proceedings before an immigration judge.

If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

Following reports that DHS rejected 4,000 timely-filed DACA renewal applications for being late due to USPS delays, DHS Secretary Elaine Dukes directed the USCIS to accept the applications, provided that the resubmissions include “individualized proof” that the applications were originally mailed in a timely matter and that the delivery delay was because of USPS error.  Secretary Dukes did not define what constitutes proof of timely filing; however, those who do not have such documentation can contact USPS to review their cases.  USPS will provide applicants with letters to ...

The Trump Administration’s April Executive Order, “Buy American, Hire American,” puts the H-1B visa program under increased scrutiny, but is not likely to have significant, if any, impact on the program for the foreseeable future.

There has been a flurry of activity and uncertainty related to immigration issues since President Trump took office. Hunton & Williams partners Adam Rosser and Emily Burkhardt Vicente discuss the concerns faced by the business community and the future of the H-1B visa program in the US.

View the 5-minute video here.

Due to the upcoming temporary suspension of premium processing for all H-1B petitions on April 3, 2017, USCIS has experienced a dramatic increase in the number of premium processing cases it has received.  The Nebraska Service Center, which processes all H-1B extension petitions for non-cap exempt employers containing no changes to the beneficiary’s terms of employment, has announced that it will focus its resources on processing H-1B petitions in accordance with premium processing requirements.

On Friday, March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced that premium processing service will be suspended for all H-1B petitions received on or after April 3, 2017. This suspension may remain in place for up to 6 months.

The provision automatically extending some Employment Authorization Documents (“EADs”) of the much-anticipated “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimigrant Workers” regulation goes into effect today.  The regulation provides for the automatic extension of certain EADs for a period not to exceed 180 days, provided that a renewal application is:

1. Properly filed with USCIS before the expiration date shown on the face of the expiring EAD,
2. Based on the same employment category shown on the face of the expiring EAD, and
3. Based on a class of aliens whose employment eligibility to apply for employment authorization continues notwithstanding expiration of the EAD and is based on an employment authorization category that does not require adjudication of an underlying application or petition before the adjudication of the renewal application.

On December 27, 2016, the Administrative Appeals Office of U.S. Citizenship & Immigration Services (USCIS) issued a far-reaching decision, Matter of Dhanasar, that sets a new legal framework for approval of National Interest Waiver (NIW) petitions and is likely to greatly increase the value of this green card category.  The newly designated precedent decision also vacates Matter of New York State Department of Transportation, a 1998 case that has severely limited the usability of the NIW petition for almost 20 years.

On October 24, 2016, the Department of Homeland Security (“DHS”) published a rule in the Federal Register establishing a new filing fee structure for applications and petitions processed by the United States Citizenship and Immigration Services, an agency almost entirely funded by petition and application filing fees.  In announcing the new fee structure, DHS explained that the prior fees no longer recovered the cost of services provided and that the new fee structure was necessary to fully recover costs and maintain adequate service. The new few structure increases filing fees by an average of 20%.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process.

Below is a summary of the December 2016 Visa Bulletin, including Final Action Dates and changes from the previous month:

• China continues to move forward at a slow pace, and the EB-3 cut-off date (July 1, 2013) remains ahead of the EB-2 date (September 22, 2012)
• India EB-2 jumps ahead three months to February 1, 2008, while EB-3 only advances one week to March 15, 2005
• Philippines EB-3 advances two months to June 1, 2011
• Worldwide EB-3 remains stalled at July 1, 2016.

The USCIS announced that Temporary Protected Status (TPS) for citizens of Guinea, Sierra Leone, and Liberia will end as of May 21, 2017. TPS for these countries was set to expire on November 21, 2016. The Secretary of DHS has determined that conditions in these countries have improved, so that TPS benefits are no longer required. To make the transition easier for TPS beneficiaries, the program will end six months after the current designation expires. Those affected will retain their TPS-based employment authorization documents through May 20, 2017, and must depart the United States ...

According to the January 2016 edition of “All Aboard,” the National Labor Relations Board’s in-house newsletter, U.S. Citizenship and Immigration Services has recently granted U status for the first time to victims of unfair labor practices in cases in which the NLRB’s General Counsel served as law enforcement certifier.

After more than 15 years since the statutes were enacted, the U.S. Department of Homeland Security will finally publish its proposed regulations implementing the American Competitiveness in the Twenty‑First Century Act of 2000, known as “AC21,” and the American Competitiveness and Workforce Improvement Act of 1998, known as “ACWIA.”

The Department of Homeland Security designates a country for Temporary Protected Status (“TPS”) when conditions – such as ongoing armed conflicts or environmental disasters – make it unsafe for those citizens who are in the United States to return home.  Because of the recent Ebola outbreaks in western Africa, DHS designated Liberia, Guinea and Sierra Leone for TPS in November 2014.

The Department of Homeland Security today announced that Nepal has been designated for “Temporary Protected Status” due to the 7.8 earthquake that struck the country on April 25 and its aftermath.

On April 15, 2015, the day its previous order was due to expire, the Federal District Court for the Northern District of Florida extended its permission for the Department of Labor to process H-2B wage and labor certification applications for another month, through May 15, 2015.

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received sufficient H-1B petitions (regular and advanced degree cases) to reach the statutory cap for Fiscal Year 2016 (10/1/2015 through 9/30/2016).

On March 20, 2015, the U.S. Department of Labor issued new FAQs providing more details on the latest developments in the ongoing federal court case challenging DOL's authority to issue and implement regulations for the H-2B temporary worker program.

On March 17, 2015, the U.S. Citizenship & Immigration Services announced it will resume H-2B processing, but will continue to suspend premium (expedited) processing until further notice.

On March 16, 2015, the U.S. Departments of Labor and Homeland Security jointly announced that they intend to release a joint Interim Final Rule by April 30, 2015, to resolve the agencies’ suspension of H-2B processing following a Florida federal court decision in Pérez v. Pérez.  See our blog entry of March 9, 2015, for details on that decision.  DOL also announced it will seek interim relief from the decision so that it may continue H-2B processing in the interval before the Interim Final Rule is promulgated.

In the joint statement, DOL and DHS acknowledged that “hardship” has ...

As of March 5, 2015, U.S. Citizenship and Immigration Services (USCIS) has temporarily shut down its processing of H-2B petitions and the U.S. Department of Labor (DOL) has stopped accepting or processing applications for H-2B prevailing wages and temporary labor certifications due to a Florida federal court’s decision in Pérez v. Pérez.

As widely anticipated, U.S. Citizenship and Immigration Services announced yesterday that it has received a sufficient number of H-1B petitions to meet both the regular cap (65,000) and the advanced degree cap (20,000) for Fiscal Year 2015.  USCIS received a total of 172,500 petitions during the FY2015 filing window, which ran through the first five business days of April.

On April 30, US Customs & Border Protection began a phased elimination of the paper I-94 Admission/Departure Record that visitors to the United States have become so familiar with.

By May 5, CBP will no longer issue paper I-94s at airports in Charlotte, Orlando, Las Vegas, Chicago (O’Hare), Miami, and Houston (IAH).  By May 21, I-94s at all other air and sea ports will be systematically phased out, per the schedule in CBP’s Travel Advisory.  Paper I-94s will continue to be issued at all land ports of entry.

Beginning on May 6, 2013, anyone attending an interview at a local USCIS field office or seeking to obtain evidence of an immigration benefit — e.g., employment authorization document, temporary I-551 stamp, or advance parole travel document — will be required to submit digital fingerprints and photos, under USCIS’s new “Customer Identification Verification” (CIV) program.

This biometric data will be input into the “US VISIT” database and will be available to USCIS for future benefits adjudications, and to USCBP, during primary, secondary and deferred ...

Starting today, March 4, 2013, USCIS will begin accepting applications for “provisional waiver” of unlawful presence from spouses, children and parents of U.S. citizens on Form I-601A.

As we explained in more detail in a previous post, these “immediate relatives” who qualify for the provisional waiver may now apply while they are still in the United States, and before they depart for their immigrant visa interviews at U.S. embassies and consulates in their home countries.  Before the provisional waiver process was established, they were required to travel abroad and be ...

On January 3, 2013, DHS announced publication of its final rule for certain spouses, children and parents of U.S. citizens to obtain provisional waivers of unlawful presence from within the United States, prior to leaving in order to apply for required immigrant visas at US consulates in their home countries.  The new rule and procedures will become effective on March 4, 2013.

The USCIS California Service Center recently changed the way it interprets H-1B requirements when job location changes, but duties and all other employment terms remain the same.

Previously, according to a 2003 USCIS memo, a simple change in job location did not require that a new petition be filed with USCIS.  The employer was required to analyze prevailing wage for the new location, file a new Labor Condition Application (LCA) with the Department of Labor, and post the required LCA notice at the new work site, but did not have to file an amended petition with USCIS.