Immigration Quick Takes — January 2024

Stateside Visa Processing

On December 21, 2023, the Department of State announced that, for the first time in almost two decades, they will process domestic visa renewals for certain H-1B applicants. This will take place as part of a pilot program beginning the week of January 29, 2024.  This voluntary pilot program will apply to approximately 20,000 eligible participants who meet the following requirements:

• Applicants must be seeking to renew an existing H-1B visa;
• The H-1B visa being renewed must have been issued by a US Consulate in Canada with an issuance date from January 1, 2020, through April 1, 2023, or by a US Consulate in  India with an issuance date from February 1, 2021, through September 30, 2021;
• Applicants must not be subject to a visa reciprocity fee;
• Applicants must be eligible for a waiver of the in-person interview requirement;
• Applicants must have submitted ten fingerprints in connection with a previous visa application;
• Applicants must not have a visa ineligibility that would require a waiver prior to visa issuance;
• Applicants must have an approved and unexpired H-1B petition;
• Applicants must have been most recently admitted to the United States in H-1B status;
• Applicants must currently be maintaining H-1B status in the United States;
• Applicants’ period of authorized admission in H-1B status must not have expired; and
• Applicants must intend to reenter the United States in H-1B status after a temporary period abroad.

The program will serve as a test for the Department of State’s technical and operational capabilities to resume domestic visa renewals for specific nonimmigrant visa classifications. If the program is successful and is expanded, it will significantly reduce workload at US Consular posts abroad and increase their capacity to adjudicate and process other types of visas.  It will also alleviate the often-encountered uncertainty faced by U.S. companies employing temporary workers reliant on petition-based visas.  

The Department of State will accept applications from January 29 to April 1, 2024 on a phased-in basis. We will provide updates as the Department of Status expands this new program. Please contact your Parker Gallini attorney if you have any questions about or to determine your eligibility for this program.

5-Year EADs

The United States Citizenship and Immigration Services (USCIS) has increased the maximum validity period for both initial and renewal Employment Authorization Documents (EADs) for the below listed noncitizen categories to five years. In contrast, previous USCIS guidelines only allowed for a maximum validity period of one or two years for these categories. This revised directive is applicable to any Form I-765, Application for Employment Authorization, currently pending or filed on or after September 27, 2023, for the following categories of noncitizens:

• Refugees;
• Noncitizens paroled as refugees;
• Asylees;
• Recipients of withholding of removal;
• Applicants for asylum or withholding of removal;
• Applicants for adjustment of status; and
• Applicants for suspension of deportation or cancellation of removal.

It’s important to note that a noncitizen’s maintenance of employment authorization will still hinge on their underlying status, individual circumstances, and their specific EAD filing category. The updated guidance offers additional details on which categories of noncitizens are automatically authorized to work and provides clarity on those who can present a Form I-94 as proof of employment authorization.Please contact your Parker Gallini attorney to determine if and how you might be affected by this change.

Increase in Premium Processing Fees

On December 27, 2023, the United States Citizenship and Immigration Service (USCIS) unveiled a final rule, adjusting the filing fee for Form I-907, Request for Premium Processing. Following the passage of the USCIS Stabilization Act in 2020 – which established the current premium processing fees and granted the Department of Homeland Security (DHS) the authority to biennially modify them – the fees have remained unchanged for three years. However, DHS has now opted to raise the premium processing fees charged by USCIS for all eligible categories in an effort to reflect inflation from June 2021 through June 2023. As detailed in a press release announcing the final rule, the specified increases are as follows:

The fee changes will go into effect on February 26, 2024. Beyond this immediate adjustment, USCIS aims to implement biennial increases in premium processing fees, ensuring a continuous alignment with inflation trends and safeguarding the genuine monetary value of the premium processing service they offer. The funds generated from these fee adjustments are intended to support various aspects of USCIS’s operation, including enhancing premium processing services, refining adjudication processes; addressing adjudication demands, including reducing processing backlogs for benefit requests; and providing financial backing for USCIS adjudication and naturalization services. Please contact your Parker Gallini attorney with any questions regarding these adjustments.

H-1B Proposed Rule

On October 20, 2023, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking aimed at modernizing the H-1B specialty occupation worker visa program. The proposed changes are designed to streamline eligibility criteria, enhance program efficiency, offer greater benefits and flexibility for both employers and workers, and fortify integrity measures to combat visa misuse and fraud.

One significant alteration involves the H-1B registration selection process. Currently, a higher volume of registrations submitted on behalf of an individual increases their likelihood of being selected in the H-1B lottery. The proposed rule seeks to level the playing field by ensuring that each unique individual, irrespective of the number of registrations submitted on their behalf, enters the selection process only once. This modification is expected to enhance the chances of legitimate registrations being selected, as it would diminish the advantage of submitting multiple registrations for the same beneficiary solely to increase selection odds. 

The proposed rule also introduces adjustments to the criteria for specialty occupation positions. The aim of such adjustments is to reduce confusion among the public and adjudicators, clarifying that a position may permit a range of degrees if there is a direct relationship between the required degree field(s) and the position’s duties. The rule also emphasizes that adjudicators should generally defer to a prior determination when no underlying facts have changed during a new filing, and proposes codification of USCIS policies with respect to when an H-1B amendment is required. Additionally, the rule would expand H-1B cap exemptions for certain nonprofit entities and governmental research organizations, as well as the beneficiaries not directly employed by them. Flexibilities for F-1 visa students seeking to change to H-1B status would also be extended, and new eligibility requirements for entrepreneurs would be established. Lastly, the rule would also codify USCIS’s authority to conduct site visits and would clarify that non-compliance with site visits may result in petition denial or revocation. Please contact your Parker Gallini attorney with any questions regarding this proposed rule.