The Department of State has delayed the effective date of the increase in consular fees from May 30, 2023, to June 17, 2023 (to provide a 60-day delay after the final rule was received by Congress).

The most relevant fee increases remain:

Visa TypeCurrent FeeRevised Fee
Non-petition-based nonimmigrant visas: B/1-B/2, F, M and J$160$185 ($25 increase)
Petition-based nonimmigrant visas: H, L, O, P, Q, and R$190$205 ($15 increase)
E nonimmigrant visas$205$315 ($110 increase)

Jackson Lewis attorney are available to assist with any questions or concerns about the new fees, consular processing, or the submission of visa applications at consulates abroad.

With the end of the COVID-19 National Emergency in the United States, the Student and Exchange Visitor Program (SEVP) has reinstated its preexisting policy regarding online classes.

Accordingly, for the 2023-24 academic year (starting fall 2023), students will have to comply with the SEVP’s pre-COVID-19 restrictions. Students will be able to complete the 2022-23 academic year under the COVID-19 flexibilities – including through any summer session.

For F-1 students, per 8 CFR 214.2(f)(6)(i)(G), this means:

No more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class …. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.

For M-1 students, per 8 CFR 214.2(m)(9)(v), this means:

No on-line or distance education classes may be considered to count toward an M-1 student’s full course of study requirement if such classes do not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class.

The SEVP always intended its COVID-19 flexibilities to be temporary measures meant to allow students to continue their studies with as little disruption as possible during a time of significant and changing travel restrictions, as well as substantial shifts in teaching methods.

This is just one of a number of COVID-19 flexibilities and restrictions that have terminated with the end of COVID-19 National Emergency, including I-9 flexibility and COVID-19 travel restrictions.

Jackson Lewis attorneys are available to assist with any questions regarding the termination of any and all COVID-19 flexibilities.

Beginning on June 1, 2023, filers submitting PERM Applications for Permanent Employment Certification must submit the revised ETA-9089 in the Foreign Labor Application Gateway (FLAG) system, the U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has announced.

A U.S. employer hiring a foreign worker and petitioning for that worker to be eligible for lawful permanent resident status must use Form ETA-9089. OFLC will not accept the previous version of Form ETA-9089 after May 31, 2023.

DOL is seeking to streamline the labor certification process with its revised ETA-9089. Filers will be required to enter the Prevailing Wage Determination number, for example, so that information from the prevailing wage can be automatically populated into the ETA 9089.

Problems already have been raised with pre-populating forms, including the inability of counsel to file an ETA-9089 on behalf of a client if the underlying prevailing wage (ETA 9141) had been filed by different counsel. Pre-population also limits the ability to properly describe the worksites. This is particularly important these days given that telecommuting and hybrid work have become ubiquitous. DOL has not indicated whether it intends to address this and other issues before June 1.

Changes observed on the revised form include:

  • The new form asks for the number of employees on payroll in the area of intended employment (the current form asks for total number of employees).
  • The new form includes a question regarding dual representation – Has the employer contracted with an agent or attorney that also represents the sponsored foreign worker?
  • The new form asks for type of worksite location: whether employer’s business premises; employer’s private household; or employee’s private residence.
  • For all worksite locations, the new form asks for the MSA/OES area code and title.
  • The new form reinstates the Kellogg language and asks if employee qualifies for the job opportunity by the virtue of the employer’s alternative requirements. If so, the form asks if the employer is willing to accept any suitable combination of education, training, and experience.

Finally, the new form requires filers to complete an additional appendix and to provide a business necessity justification when affirmatively answering the following:

  • Whether the job opportunity requires the worker to live on the employer’s premises.
  • Whether the job opportunity involves a combination of occupations.
  • Whether proficiency in a foreign language is required or preferred to perform the job duties.
  • Whether the job requirements exceed the SVP level assigned to the occupation as shown in the O*NET Job Zones.
  • Whether the employer used a credentialing service to qualify the foreign worker’s education or experience requirements.
  • Whether the employer received payment of any kind for the submission of this application.
  • Whether the employer had a layoff in the occupation involved in the application or in a related occupation within the six months immediately preceding the filing of the application in the area of intended employment.

Previously, DOL would raise issues surrounding these questions in a post-filing audit, if at all. Under the revised ETA-9089, employers must provide a justification at the time of filing for any of the above issues to which they are required to answer “yes.” Many employers may be answering in the affirmative to the question on “whether the job requirements exceed the SVP level assigned to the occupation as shown in the O*NET Job Zones.” Employers commonly require a higher-level degree or more years of experience than what is considered “normal” by DOL. Thus, a large majority of filings will require including a business necessity justification. Employers should be prepared to work closely with their immigration attorneys to navigate the complexities surrounding the revised ETA-9089.

Jackson Lewis attorneys are closely monitoring PERM-related issues. If you have any specific questions regarding these developments, please reach out to your Jackson Lewis attorney.

As of July 1, 2023, all private employers in Florida with 25 or more employees will be required to use E-Verify, the federal government’s database for verifying work authorization. Enforcement of this new E-Verify requirement will begin one year after enactment on July 1, 2024.

These employers also must:

  • Certify E-Verify participation on the company’s first state tax service provider report each year; and
  • Retain proof of the E-Verify verification for at least three years from the date of hire.

Employee leasing companies will be responsible for E-Verify verification, unless the responsibility is transferred to the client company by agreement.

Employers should expect random audits as well as enforcement based upon complaints. Initially employers will have 30 days to cure any noncompliance. Multiple violations within a 24-month period will lead to fines and suspensions.

E-Verify is not new to Florida employers. The Florida law in place since 2021 already required all private employers to use E-Verify or require documentation in accordance with Form I-9, Employment Eligibility Verification, from new hires. Further, most public contractors were subject to E-Verify.

The new E-Verify law is part of a larger, sweeping immigration bill that, among other things:

  • Invalidates out-of-state driver’s licenses issued to people without legal status in the United States;
  • Requires certain hospitals to collect patient immigration status and provide quarterly reports; and
  • Penalizes through business license suspensions and fines the employment of unauthorized workers. Enrollment in E-Verify, however, creates a rebuttable presumption that the employer has not violated the state law that prohibits the employment of unauthorized workers. Employers who use only the Form I-9 process can establish an affirmative defense to the same.

Private employers in Florida with 25 or more employees or those who plan to bid on public contracts should be prepared to comply with the new law by updating their onboarding and new hire practices and registering with E-Verify. It also will be important to train at least one staff member on how to use E-Verify if the employer has not used the system in the past.

Using E-Verify does not mean that employers do not have an obligation to complete I-9 forms for each new hire. Form I-9 employment eligibility verification is and continues to be an independent requirement under federal law.

Using E-Verify allows the Social Security Agency and the Department of Homeland Security to more easily audit a company’s data to determine if normal statistical parameters are met. But, one particular benefit of using E-Verify is that the employer can offer up to two years of STEM OPT to trainees. This can be quite beneficial to employers and foreign students, especially because H-1B visas can be hard to come by.

Jackson Lewis attorneys are available to assist employers in setting up appropriate employment verification policies, conducting internal compliance audits, and training staff.

On May 30, 2023, fees for nonimmigrant visas at all consulates abroad will increase. The increase can be avoided if the visa fee is paid on or after October 1, 2022, and before May 30, 2023, and an interview is scheduled within 365 days of payment. The interview need not take place during the 365 days, only the scheduling must occur.

Here are the updated fees:

Visa TypeCurrent FeeRevised Fee
Non-petition-based nonimmigrant visas: B/1-B/2, F, M and J$160$185 ($25 increase)
Petition-based nonimmigrant visas: H, L, O, P, Q, and R$190$205 ($15 increase)
E nonimmigrant visas$205$315 ($110 increase)

The Department of State’s (DOS) consular operations are funded by the fees collected. Changes in nonimmigrant visa fees are based on a cost-of-service model. DOS recovers the costs incurred for providing these services.

Jackson Lewis attorneys are available to review and assist submission of nonimmigrant visa applications on Form DS-160, Online Nonimmigrant Visa Application.

The last-standing COVID-19-related travel restrictions will soon expire. Bringing the United States in line with most countries around the world, after May 11, 2023, non-citizen, nonimmigrant air passengers need not show proof of being fully vaccinated to board a flight to the United States.

Until May 12, nonimmigrants must still document having a bivalent or monovalent dose of an approved COVID-19 vaccine taken at least 14 days before their arrival in the United States.

In addition, beginning May 12, non-U.S. travelers will be able to enter the United States by land or ferry without providing evidence of up-to-date vaccinations.

In addition to ending the travel restrictions, the Biden Administration also announced that the COVID-19 vaccination requirements for federal employees and federal contractors will end May 11, and the Administration will start the process to end the vaccination requirement for head start educators and CMS (Centers for Medicare and Medicaid Services)-certified facilities.

The COVID-19 public health emergency has been in effect since January 2020. Anticipating the end of the emergency declaration, USCIS already ended the 60-day grace period granted to respond to requests from the agency. On May 4, 2023, DHS and ICE announced that the flexibility to conduct remote verification of documents for Form I-9 purposes will end as of July 31, 2023. Beyond that, USCIS still has discretion to grant measures, including extensions, on a case-by-case basis upon request for those who have been affected by unforeseen circumstances, including a public health emergency. Unforeseen circumstances related to COVID-19 may still fall into this category.

Jackson Lewis attorneys are available to answer any questions regarding travel or COVID-19-related flexibilities, particularly those connected with preparing for the end of flexibility regarding Form I-9 employment verifications.

U.S. Immigration and Customs Enforcement (ICE) has announced that employers will have 30 days to comply with Form I-9 employment eligibility verification physical document examination requirements when COVID-19 flexibility sunsets on July 31, 2023.

This answers two pressing questions employers and attorneys have been asking: 

  • Will the temporary I-9 flexibility be extended again beyond July 31, 2023?
    • The answer is “no” 
  • Will employers have more than three business days to conduct physical examination of documents that were examined remotely when temporary flexibility ends?
    • The answer is “yes” – employers will have 30 days until August 30, 2023 

 Since March 20, 2020, there has been an exception to the in-person I-9 verification requirements, allowing documentation to be virtually reviewed for certain remote employees. Pursuant to ICE’s announcement, the exception will no longer be in effect after July 31, even for employees who have not returned to the workplace. These employees’ I-9 documents must be physically reviewed in person by August 30, 2023.

For at least a year, DHS and immigration attorneys have been encouraging employers who have been using the temporary flexibility to prepare for the end of that program. On May 1, 2023, the White House announced that the COVID-19 Public Health Emergency would end on May 11, 2023, so this announcement is not wholly unexpected. Now, with less than three months to go, all employers must prepare for compliance.

Employers should:

  • Prepare a list of all employees who were verified virtually 
  • Determine who will be conducting the in-person verifications and how the company will be reaching out to the affected employees 
  • Train staff on how to update I-9 forms after the in-person review. The virtually completed I-9s should have been annotated in the Additional Information field with “COVID-19” as the reason for the delayed in-person inspection. This must be updated by annotating “documents physically examined” with the accurate date and the name of the person who conducted the review in Section 2 of the I-9 or in Section 3 (for reverification), as appropriate. 
  • Make sure staff are aware of the special rules regarding I-9s for individuals who are eligible for automatic extensions of work authorization or who have work authorization based upon their status.  
  • Consider whether the company will use authorized agents to conduct some of the necessary document examinations and how the company will implement that process.

While the emergency COVID-19-related I-9 flexibility is ending, DHS is still considering alternative procedures for examining I-9 documents. On August 18, 2022, DHS issued a proposed rule on this topic and is reviewing all the comments it received.

Jackson Lewis attorneys are available to answer questions about the sunsetting of flexibility and how to prepare to meet the August 30, 2023, deadline. 

USCIS has announced that the total number of eligible registrations submitted for FY 2024 was 758,994 (up from 474,421 eligible registrations submitted for FY 2023). Of the 758,994 eligible registrations submitted, USCIS said it made 110,791 selections to fill the 85,000 available H-1B visa slots.

The significant increase in submitted registrations yielded a relatively low average selection rate of approximately 14.6%. USCIS has indicated that they suspect the significant increase could be due in part to multiple employers submitting registrations on behalf of a single beneficiary (408,891 eligible registrations accounted for beneficiaries with multiple eligible registrations). This raised concerns within USCIS that some companies and individuals may have unfairly attempted to increase their chances of selection in the lottery. As a result, USCIS has indicated that they are initiating investigations into potential fraud.

The Wall Street Journal confirmed that USCIS has accused several small technology firms of colluding to increase the chances of their foreign hires being selected in the lottery. The article notes:

Though it isn’t technically illegal for a foreign worker to have multiple companies submit visa applications on their behalf, companies submitting applications must attest that they have a real job for the employee in question if they win a visa. If companies that win a visa then quickly contract an employee out to third parties, or lay off an employee on the visa so he or she can switch companies, that could potentially amount to fraud.

For those companies that may have colluded to engage in the fraudulent practices noted above, USCIS reports that it has begun initiating referrals to federal law-enforcement agencies for potential criminal prosecution. USCIS also said the agency will deem registrations submitted under such pretenses to be improperly submitted (effectively rejecting these registrations and preventing prospective employers from being able to file a petition based on that registration).

While potential registration rejections seem imminent, whether USCIS will conduct a second lottery for FY 2024 H-1B visas thereafter is unknown. Further, USCIS may decide that changes to the registration process are needed to prevent such fraud from occurring again.

Jackson Lewis attorneys are closely monitoring H-1B Cap FY 2024-related issues. If you have any specific questions regarding these developments, please reach out to your Jackson Lewis attorney.

Customs and Border Protection (CBP) has been implementing “Simplified Arrival” at all airports, seaports, and most ports of entry since early 2022. The purpose is to secure and streamline the entry process. But the elimination of paper documentation is raising issues for foreign nationals.

One outcome of Simplified Arrival implementation is that CBP no longer issues paper Form I-94s. That information is entered into the I-94 online system, which means foreign nationals are not able to see the I-94 until they enter the United States, as opposed to being handed a paper Form I-94 when they interact with the CBP officer. Additionally, in August 2022, CBP started eliminating passport stamping, which is the only other immediate visual record of the entry.

Accurate entry and exist records are important and CBP does not always get it right, which creates downstream problems. Foreign nationals need to document their correct entries and exits for, among other things:

  • Tax residence purposes
  • H and L time recapture
  • Proving L intermittent status
  • Proving maintenance of status
  • Avoiding 3-and-10-year bars that result from unlawful presence
  • Documenting changes of status
  • Proving naturalization eligibility

The elimination of passport stamps may be particularly impactful to permanent residents tracking time in the United States to become eligible for U.S. citizenship,  because their entries and exits are not documented in the I-94 system.

Because the I-94 website is not always accurate and may not be available in the case of permanent residents, foreign nationals need back-up plans. Consider the following:

  • Download information from the I-94 website as soon as possible after entry – before leaving the airport would be best – to ensure the information is accurate.
  • If the information is not correct, the traveler should contact Deferred Inspection at the airport or the closest location. Thereafter, it is also possible to contact Deferred Inspection by email.
  • Try requesting a passport stamp upon arrival. This should still be possible, but it will be at the discretion of the officer.
  • Try requesting a passport stamp at Deferred Inspection.
  • As a final back-up, keep all your travel and lodging receipts, itineraries, and credit card statements to document time spent outside of the United States.

If you have questions about how best to document your international travel, Jackson Lewis attorneys are available to assist.

As a part of various USCIS immigration applications, the U.S. government requires the applicants’ biometrics to be collected in order to conduct relevant background checks and services prior to granting the requested immigration benefits. In the past, mobile biometrics services (e.g., photographs and fingerprinting) may be provided by USCIS at pre-determined locations for those with disabilities or health issues that prevent them from appearing at an Application Support Center (ASC). The agency may also provide mobile biometrics in limited other circumstances. For example, on a case-by-case basis, it may provide mobile biometrics for individuals who reside in remote locations who would have to use multiple modes of transportation or deal with substantial travel times to arrive at an Application Support Center (ASC).

USCIS employees or contractors will handle these services. If the applicant’s location is remote, USCIS may decide to coordinate with local law enforcement agencies or other DHS agencies to collect the biometrics. When the biometrics are not collected directly by a USCIS employee or contractor, USCIS provides the fingerprint card and requires a clear chain of custody until the biometrics are delivered to the carrier service and returned to the USCIS. As with biometrics applications at ASCs, the applicant must bring the Form I-797C appointment notice and an acceptable photo ID, passport, or driver’s license for identification purposes.

Mobile services are not provided for individuals in custody at correctional institutions or non-DHS detention facilities. Regular procedures, including rescheduling procedures, must be followed. To reschedule, the applicant must call before the date and time of the original appointment and establish good cause for rescheduling. Failure to reschedule may result in a denial of the petition or application.

As for those detained in DHS facilities and applying for USCIS benefits, ICE (Immigration and Customs Enforcement) and ERO (Enforcement and Removal Operations) handle background and security checks. Fingerprint waivers are possible and may be granted for medical reasons, including psychiatric reasons. Waivers cannot be reused. Any subsequent applications would require a new waiver application.

Requests for mobile biometrics based on living in a remote location should be made by calling the USCIS Contact Center. Requests based on disability or health issues should be made online.

Jackson Lewis attorneys are available to assist you with questions about biometrics appointments and waivers.