President Joe Biden announced Deferred Enforced Departure (DED) for up to 18 months for Palestinians currently residing in the United States. The president took this action due to the terrorist attacks on Israel on Oct. 7, 2023, the military response, and the humanitarian conditions in the Palestinian territories, particularly Gaza. Individuals do not need to apply for DED if they meet the eligibility conditions. But an application is required if they desire work authorization.

It is believed that the grant of DED will affect approximately 6,000 Palestinians who have been present in the United States since Feb. 14, 2024. It will not include anyone:

  • Who has voluntarily returned to the Palestinian territories after Feb. 14, 2024;
  • Who has not continuously resided in the United States since Feb. 14, 2024;
  • Who is not admissible or is subject to extradition; or
  • Whose presence in the United States presents a danger to public safety or potential serious adverse foreign policy consequences.

DED is temporary relief from removal that the president may authorize. In conjunction with DED, President Biden has authorized the Department of Homeland Security to suspend certain requirements for Palestinian F-1 students who, due to the conditions in their home territory, need to be able to work longer hours and attend fewer courses than is usually allowed.

Individuals from Hong Kong and Liberia are also authorized for DED.

Details regarding Palestinian DED and instructions on how to apply for work authorization are due to be published in the Federal Register soon.

Jackson Lewis attorneys are available to answer any questions regarding DED, Temporary Protected Status, and verification of work authorization for those in these categories.

The U.S. government has adjusted export control regulations in an effort to protect U.S. national security interests. The revisions primarily affect export of electronic computing items and semiconductors to prevent foreign powers from obtaining critical technologies that may threaten national security. As manufacturers are facing increased demand for their products and critical labor shortages, they may find themselves seeking to hire foreign national talent and navigating U.S. export control and immigration and anti-discrimination laws. Please see our full article co-authored by our immigration group here.

USCIS published its Improving the H-1B Registration Selection Process and Program Integrity final rule on Feb. 2, 2024. The new final rule has three basic categories: creating a beneficiary-centric selection process, specifically allowing for start date flexibility, and other enhancements to the integrity of the selection process.

This is the first phase of final rules that have been expected based on the Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Works Rule that was released for Notice and Comment in October 2023.

USCIS wanted to get the improvements in the H-1B cap process into effect in time for this year’s lottery. Clarifications on H-1B definitions and others regarding nonimmigrant visa filings are not in this final rule.

Beneficiary-Centric

DHS has introduced a beneficiary-centric selection process to reduce manipulation problems. No matter how many petitioners submit registrations for the same beneficiary for bona fide job openings, the beneficiary will be entered only into the lottery once. When a beneficiary is selected, all petitioners who submitted registrations for that individual will be notified. This likely will give beneficiaries more ability to negotiate with employers about which job to accept.

In addition, the final rule makes clear that a valid passport or other valid travel document will be required to participate in the registration. “Valid travel documents” was added so stateless individuals could be included in the lottery. The travel document must be valid for entry into the United States, the rule notes. A beneficiary can use only one passport or travel document for all lottery submissions. Certain changes in passport and travel document information between the registration and the filing of a petition may be acceptable if the information has to do with marriage, change in gender identity, or a lost or stolen passport or travel document.

DHS did not to address whether related entities would be prohibited from submitting multiple registrations for the same beneficiary as this might not be necessary once the beneficiary-centric selection process is in place.

Start Date Flexibility

DHS has clarified that petitions may be filed with start dates after October 1 of the relevant year if the case is not filed more than six months before the proposed start date. DHS did not address extending cap gap protection to qualified students, which was part of the October 2023 proposed rule.

Enhancing Integrity

Under this category, DHS codified its ability to deny or revoke an approved petition if:

  • There is a change in a beneficiary’s identifying information from the registration to the petition filing;
  • It discovers an invalid registration fee;
  • It discovers the petition is not based on a valid registration; or
  • It discovers that statements made in the registration attestation, the petition, or the LCA were inaccurate, fraudulent, or misrepresent a material fact.

When a registration is submitted, the petitioner signs the following attestation under the penalty of perjury:

  • All the information contained in the registration submission is complete, true, and correct;
  • The registration(s) reflect a legitimate job offer; and
  • The registrant, or the organization on whose behalf the registration(s) is being submitted, has not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

If you have any questions about the new rule and how it will affects your upcoming cases, please reach out to your Jackson Lewis attorney.

Many USCIS filing fees are being adjusted upward beginning on April 1, 2024. That date, of course, is particularly significant. It is the earliest date that Cap H-1Bs can be filed.

The H-1B filing fee, for example, will rise from $460 to $780. The ACWIA Fee (to fund the training of U.S. workers) and the Fraud Fee will remain the same: $750-$1,500 (depending on the employer’s size) and $500, respectively. USCIS is adding an Asylum Program Fee (APF) of $600 for most employers filing I-129s (Petitions for Nonimmigrant Workers). That brings the total H-1B fee for most employers up to $3,380 (without any premium processing).

The only fee increase that will not affect this year’s cap cases is the registration fee. It will remain at $10 per registration for the 2024 lottery season. Next year, the registration fee will jump to $215 per registration.

There will be an exception to the H-1B filing fee increase for small employers (those with fewer than 25 full-time equivalent employees, or FTEs) and nonprofits. For those groups, the filing fee will remain at $460. They will also be excepted from the full APF. Instead of $600, the APF will be $0 for nonprofits and $300 for small employers.

In instituting the new fees, USCIS, which is fee-funded, notes that the filing fees have not been fully updated since 2016. The new fees have been set to cover adjudication costs completely and balance “beneficiary pays” and “ability to pay” principles. USCIS received more than 5,400 comments in response to their notice of rulemaking and that led to some changes in the final rule. A few fees went down – none went up. Basically, the most significant fee increases are still for employment-based cases, with some small discounts for online filings where possible.

Examples of the new filing fees for employers with more than 25 FTEs include:

  • Form I-129 L visa fees – go from $460 up to $1,385 plus the $600 APF
  • Form I-129 O visa fees – go from $460 up to $1,055 plus the $600 APF
  • Form I-129 H-2B for Temporary Nonagricultural Season Workers (with named beneficiaries) – go from $460 to $1,080 plus the $600 APF
  • Form I-539 Applications for Dependents – go from $370 up to $470
  • Form I-140 Immigrant Visa Petition – go from $700 up to $715 plus the $600 APF
  • Form I-485 Application to Register Permanent Residence of Adjust Status – go from $1,140 up to $1,440
  • Form I-765 Applications for Employment Authorization – go from $410 up to $520
  • Form I-526/526E Immigrant Petition by a Standalone/Regional Center Investor – go from $3,675 up to $11,160

The full table of fee increases takes up eight pages in the Federal Register.

Along with the new fees, revised forms will go into effect on April 1, 2024. USCIS will accept prior forms during a grace period that will run through June 3, 2024. However, there will be no grace period for several forms including Forms I-129 and Forms I-140.

Jackson Lewis attorneys are available to assist you to strategize and budget for the new fees.

USCIS announced the extension and redesignation of Syria for Temporary Protected Status (TPS) for 18 months from April 1, 2024, to Sept. 30, 2025. The redesignation is based on the continuing civil war and the accompanying dire humanitarian consequences taking place in Syria.

Individuals who are already in Syrian TPS must apply for the extension of their status and renewal of their employment authorization documents (EADs) during the 60-day re-registration period that will run from Jan. 29, 2024, to March 29, 2024. They should not wait until their employment authorization is due to expire.

Recognizing that even those who timely apply may still experience a gap in work authorization due to USCIS backlogs, individuals with Syrian TPS EADs expiring on March 31, 2024, Sept. 30, 2022, or March 31, 2021, will be entitled to an automatic extension through March 31, 2025.

Individuals with already pending requests for TPS extensions or EAD renewals do not need to reapply. When their applications are approved, they will be approved until Sept. 30, 2025. For more information on the automatic extensions, please see our TPS Tool.

The redesignation of Syria for TPS will allow approximately 2,500 Syrians already living in the United States who do not have TPS to apply and request EADs. Beyond the general eligibility requirements, these individuals will have to show that they have been continuously residing in the United States since Jan. 25, 2024, and have been continuously physically present in the United States since April 1, 2024. Individuals applying under the redesignation may apply up until Sept. 30, 2025. For full information on the re-registration and application process, please see the Federal Register.

Along with this extension, a Special Student Relief notice for F-1 nonimmigrant students from Syria will allow eligible students to request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 status through the new designation period.

Jackson Lewis attorneys are available to assist in determining in what circumstances employers’ Form I-9 Employment Eligibility Verification is required.

The increasing need for talented workers in the United States has more and more employers considering eliminating bachelor’s degree requirements from job descriptions. A recognition of the value of skills and experience over formal education may be driving the trend. See our full article on these issues and considerations here.

USCIS previously deferred its proposed filing fee increase until early 2024 – and the increase might be coming out very soon! This increase will come on top of the increased premium processing fees that will go into effect on Feb. 26, 2024. The premium processing fee increase is approximately 12%. Some of the proposed general filing fee increases went well beyond that.

The agency’s budget is fee-based and the increased fees were proposed to recover operating costs and decrease backlogs. The burden of the new increased filing fees would fall primarily on employers – both large and small. The H-1B visa would be raised by 70%, from $460 to $780. The registration fee for Cap H-1Bs would increase from $10 to $215. There would also be a surcharge of $600 added to all I-129 Nonimmigrant Worker Petitions and all I-140 Immigrant Petitions for Alien Workers specifically to cover costs associated with humanitarian applications. The entire proposed fee schedule can be found in the Federal Register in tables in Section II C.

USCIS received a great deal of negative commentary from employers and the delay in publishing the final rule could indicate that USCIS has seriously considered making some changes.

Jackson Lewis attorneys are following this matter closely and will provide updates as soon as they become available.

 The U.S. Citizenship and Immigration Services (USCIS) has changed its policy manual to make it easier to find and understand all the regulations regarding nonimmigrant students in F and M status. The new guidance consolidates the existing policies and clarifies issues of eligibility, school transfers, practical training and on-and off-campus employment. It provides more transparency and makes it easier for students, employers, and the universities to understand and abide by the regulations.

F status is for noncitizens who enter the United States as fulltime students at a college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. The M classification is for students attending vocations or other recognized nonacademic programs.

There are two clarifications to the policy manual that are particularly helpful for students and the companies that employ them in Optional Practical Training:

  1. The guidance clarifies that, although students in F and M status must have a foreign residence abroad that they do not intend to abandon, they nevertheless can be the beneficiaries of PERM labor certifications or an immigrant visa petition. In other words, a student may be able to start a green card application and still be eligible to travel and apply for a new F or M visa abroad. The fact that they are in a green card process does not necessarily lead to the conclusion that they are no longer eligible for student status, which requires that they maintain a foreign residence and intend to depart the United States after their temporary student stay ends. Of course, consular and CBP officers will still consider all the circumstances and have the discretion to determine whether the student meets the foreign residence requirement, but the new policy makes clear that starting a green card process is not conclusive. This clarification does not change the fact that, once a student in F or M status takes the final step in a green card process (filing a Form I-485, Application to Register Permanent Residence or Adjust Status), that student is no longer eligible for student visa status and cannot travel abroad until Advance Parole is received.
  2. The second important clarification has to do with working for start-up companies on STEM OPT. There were questions about whether a start-up company could support the training required during a STEM OPT two-year extension. The new guidance clarifies that, if the company can guarantee 20 hours of work per week, adhere to the training program, provide compensation commensurate with compensation provided to similarly situated U.S. workers, and remain in good standing with E-Verify, the fact that the company is start-up, is not definitive.

Jackson Lewis attorneys are available to assist in determining how the new guidance could affect your policies and strategies regarding hiring nonimmigrant students and sponsoring them for green cards.

The Brazilian government allows U.S. citizens to enter Brazil as visitors for business or pleasure for up to 90 days without a visa. This has been good for tourism, but the lack of reciprocity rankles, as Brazilians must still apply for a visa in order to visit the United States.  

Over the past several years, Brazil has decided to reintroduce visa requirements for U.S. citizens (as well as Australians and Canadians). But the implementation of this change continues to be postponed, most recently until April 10, 2024, to avoid interfering with Brazil’s high tourist season. In connection with the anticipated implementation of the visa requirement, Brazil began accepting online e-visa applications in early December 2023. E-visas will cost approximately U.S.$81 ($80.00 plus $0.90 service fee) per person and will be valid for multiple entries over a five-year period once issued.

Despite this upcoming tightening of visa requirement for U.S. visitors, and in light of the cross-border remote work and global mobility trend ever since COVID-19 started, Brazil now has a relatively simple solution for individuals who wish to work remotely from Brazil, i.e., a digital nomad visa process for those who are self-employed or who would like to live in Brazil while working remotely for a company abroad. To be eligible, an individual must prove their employment, a minimum monthly income of approximately U.S.$1,500.00 or availability of bank funds in the minimum amount of US $18,000 at the time of application and must also have health insurance coverage. Digital nomad visas are issued for one year and can be extended for another year. Applications must be made at the closest Brazilian consulate and are typically processed in two to four weeks.

All estimated fees or processing times are subject to change depending on respective government processing changes.

If you have questions, Jackson Lewis attorneys in our immigration and international employment practice groups are available to assist with the requirements and decisions necessary for employees’ business travel, temporary remote work abroad and permanent international transfers.

The Department of State (DOS) will begin a pilot program for issuing nonimmigrant visas inside the United States on Jan. 29, 2024. The pilot program will be available to a narrowly defined class of nonimmigrants for a limited period. Once the proof of concept is demonstrated, the DOS plans to continue and expand the stateside visa processing program. When fully implemented, the stateside visa program should bring significant savings in both time and cost associated with the renewal of nonimmigrant visas.

Participation in the stateside visa pilot program is limited to nonimmigrants who have a valid H-1B petition, maintain H-1B status in the United States, previously provided fingerprints to the DOS, and have no ineligibility for a visa. Applicants must qualify for a waiver of an in-person interview and have no requirement to pay a visa issuance “reciprocity” fee. Finally, applicants eligible to participate in the pilot program include only those in possession of a current or expired H-1B visa issued by a U.S. consulate in Canada between Jan. 1, 2020, and April 1, 2023, or a U.S. consulate in India between Feb. 1, 2021, and Sept. 30, 2021.

Applicants must be eligible for a waiver of the in-person interview and be residing in the United States when filing a stateside visa application. Submitting evidence of temporary residence in the United States with the application is not required.

The DOS will accept applications to renew H-1B visas during a five-week period beginning Jan. 29, 2024. Only 4,000 applications will be accepted each week. These will include 2,000 each from applicants whose most recent H-1B visa was issued at a U.S. consulate in Canada or in India. Once the weekly limit is reached, the online application portal will be locked. Applicants unable to apply before a weekly total is reached may try again on any subsequent week during the pilot period.

Applications for the stateside visa processing pilot must be filed through an online portal: https://travel.state.gov/content/travel/en/us-visas/employment/domestic-renewal.html. Applicants will be directed to a preliminary set of questions to ascertain program eligibility. Applicants then will complete an online Nonimmigrant Visa Application, Form DS-160, and pay the filing fee. Finally, applicants will be provided instructions to send their passport and supporting documents to the DOS.

Receiving a new H-1B visa does not extend nonimmigrant status within the United States. The visa only provides authorization to reapply for admission to the United States in H-1B status. Maintenance of status is determined by the Form I-94, admission record issued by the Department of Homeland Security. A Form I-94 may be issued by Customs and Border Protection at a port of entry or by U.S. Citizenship and Immigration Services following approval of an application to extend or change nonimmigrant status.

The DOS predicts that stateside visa processing may take approximately six-to-eight weeks and expedited processing will not be available. Therefore, persons with an urgent need for international travel will be better served by applying for an H-1B visa at a consulate abroad. If a nonimmigrant finds an urgent need to travel after applying for the pilot program, the application may be withdrawn. The passport will be returned to allow the individual to file a new application at a consulate abroad.