USCIS has published a proposed rule that, once implemented, would significantly reform and modernize the H-1B Program. The Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers Rule has been released for Notice and Comment by the Department of Homeland Security (DHS).

The stated purpose is to streamline the H-1B process, provide greater benefits and flexibility for petitioners and beneficiaries, and improve the integrity of the Cap H-1B program. The comment period will run until December 22, 2023. At the end of the comment period, DHS will review all comments and publish the final rule.

The rule seeks to reform the following aspects of the H-1B Program:

  1. The H-1B Cap;
  2. Definitions in the H-1B Program; and
  3. H-1B and Other I-129 Filings.

1. Changes to the H-1B Cap/Lottery

DHS reports that in fiscal year (FY) 2021, there were 700 beneficiaries with at least five online Cap H-1B registrations and there was one beneficiary with 18. Two years later, in FY 2023, the numbers were significantly higher: 9,155 beneficiaries with at least five registrations and one beneficiary had over 83 registrations. Due to concerns about fraud and abuse in the H-1B lottery registration, DHS is proposing the following changes to address the issue of multiple cap registrations:

  • Registrations will be selected by unique beneficiaries, NOT by unique registrations. Beneficiaries may have registrations submitted by more than one petitioner for bona fide job openings but, regardless of the number of registrations, the beneficiary will be entered into the lottery only once. After being selected, each petitioner who submitted a registration for that beneficiary will be notified. This likely will give beneficiaries more ability to negotiate with employers about which job to accept. According to the proposed rule, this would not prevent the filing of legitimate concurrent H-1B petitions.
  • Related entities will be prohibited from submitting multiple registrations for the same beneficiary.
  • The rule would codify DHS’ ability to deny or revoke petitions where there was a false attestation regarding the bona fide job opening and clarify that the DHS can request contracts or other evidence to prove a position is not speculative.
  • DHS will require that all beneficiary registrants have a valid passport to make it easier for the agency to identify duplicate registrations. Beneficiaries with dual citizenship must use only one for registrations.
  • Petitioners must have a legal presence and be amenable to service of process in the United
    States.
  • DHS specifically noted that the changes to the Cap H-1B lottery might need to be postponed if the agency does not have enough time to implement the necessary changes.

To deal with delays in Cap adjudications and gaps in work authorization, DHS would:

  • Extend Cap Gap for qualified students in F status until April 1 of the FY or until the start date of approved H-1B petition, whichever is earlier; and
  • Permit Cap H start dates after October 1 if the case is not filed more than six months before the proposed start date of the petition.

2. Clarification of H-1B Definitions

Here, DHS is attempting to clarify definitions and consolidate all its guidance in one place. The rule would:

  • Revise the definition of “specialty occupation” to clarify that, if a position “normally” requires a certain degree, it does not mean the occupation “always” requires that degree.
  • Clarify that jobs may require a range of degrees if all the required degrees are directly related to the position and skills.
  • Expand the definition of “nonprofit research organization” and “government research organization” for H-1B Cap Exemption purposes by explaining that research must be a “fundamental activity” of the organization and not necessarily its “primary mission.” DHS would also revise the beneficiary’s requirements. They need only provide “essential work” even if the duties of the position do not directly further the organizations “essential purpose.”
  • Help entrepreneurs by allowing company owners in some circumstances may be eligible for H-1Bs.
  • Consolidate all the guidance on whether a move or a short-term placement requires an amended filing.
  • Clarify that “quantitative degrees” generally will not support an H-1B petition unless there is some specialization. For example, DHS notes that a general business degree alone would not support an H-1B petition for a marketing position, and a general engineering degree would not support a petition for a software developer position. In addition, requiring degrees as a proxy for a generic set of skills would not support an H-1B unless the petitioner can show an established past practice.

3. Changes That Affect H-1B and Other I-129 Filings

The rule would:

  • Clarify that if there is no material change, USCIS should defer to prior approvals.
  • Expressly require inclusion of maintenance of status documentation for all extensions and amendments.
  • Allow the amendment of validity periods where the validity period expires before petition  adjudication.
  • Codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation.

If you have any questions about the proposed new rule, please reach out to your Jackson Lewis attorney. Updates will be provided as the rule goes through the regulatory process.

For H-1B visas, employers have been hoping there will be another round of selections for FY 2023, but that is not on the horizon.

USCIS has been sending non-selection notices to registrants’ online accounts. USCIS can only send non-selection notices once it has determined that enough petitions for the regular cap and the advanced degree exemption have been received.

Properly submitted registrations that did not make it will show as “Not Selected” in their accounts. Others may still show as “Submitted” but it is likely that those too will start to show as “Not Selected” in the days to come as the USCIS completes its process.

Last year, USCIS received 308,613 registrations and had three rounds of selections resulting in 131,970 selected petitions to meet the limit of 85,000. In last year’s first round, only 87,000 registrations were selected. This year, USCIS received 483,927 registrations and selected 127,000 petitions in the first round to meet the 85,000 total.

USCIS calculates the number of cases it will select based on historical data regarding the number of petitions that have been filed post-selection and the number of denials forecast. Last year, the COVID-19 pandemic was a big unknown. Now, as was predicted, USCIS seems to have a better grip on the data.

Please reach out to your Jackson Lewis attorney with any questions about the selection process and options for those not selected.

USCIS has announced that H-1B Cap registration will start on March 1, 2022, at noon (Eastern) and will continue through noon (Eastern) on March 18, 2022.

If enough registrations to fill the cap are received by March 18 (which is likely), USCIS will randomly select registrations and send selection notifications through users’ myUSCIS online accounts. The intention is to notify all account holders by March 31, 2022.

Registrations can be done only electronically through a myUSCIS online account. The associated $10 H-1B registration fee for each beneficiary also will be paid through that account.

Registrations may be accomplished by the employers themselves or their attorneys (representatives). Employers preparing their own registrations are known as “registrants.” Registrants will be able to create new myUSCIS accounts beginning at noon (Eastern) on February 21, 2022. Duplicate registrations for a prospective employee will lead to rejections, so it is important not to duplicate efforts.

Attorneys/representatives may add clients to their accounts at any time, but both attorneys and registrants must wait until March 1 to enter beneficiary information and submit the fee. As in the past, multiple beneficiaries can be entered in a single online session. Draft registrations may be drafted, stored, and edited prior to final payment and submission of each registration.

Full cap-subject H-1B petitions, including for those who are eligible for the advanced degree exemption, may only be filed for beneficiaries selected through the online registration process.

The reasons for cap cases abound. For example, many cap cases are for F-1 students who wish to change status to H-1B. Others include individuals in such visa statuses as L or TN who wish to extend their time in the United States. The time to start planning is now!

Jackson Lewis attorneys are available to assist in this year’s process and advise on strategies for selecting employees and prospective employees who are eligible for submissions.

Having instituted a new on-line registration process for Cap H-1B petitions last year, on November 2, 2020, the Department of Homeland Security (DHS) issued a notice of proposed rulemaking to replace the random selection process with a process that prioritizes H-1B petitions with the highest wage levels.

DHS sees wage levels as a proxy for skill level and is proposing this change to align with the Trump Administration’s desire to provide H-1B visas only to the “best and the brightest.” DHS plans to make this change through rulemaking even though the agency notes in the rule itself that it was previously of the opinion that basing selection prioritization on factors other than degree level, such as salary, would require legislation.

Under the  proposed rule, Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions (the Modification Rule), the U.S. Citizenship and Immigration Services will prioritize the selection of cases based on the highest wage levels for the SOC Codes in the area(s) of intended employment – starting with Level IV and moving downward. Cases that use private wage surveys rather than Occupational Employment Statistics (OES) wages would be classified as Level I or below.

Wage level has not previously been a factor in the lottery selection process, including last year’s registration process where no information about the proffered position was required. The only substantive question was about whether the beneficiary held a U.S. Master’s degree or higher. If the proposed rule goes into effect, information including the wage level, the SOC code, and the area(s) of intended employment will be needed.

The Modification Rule is the third in a trio of recently announced rules that are dramatically changing the H-1B process. The first, issued by the Department of Labor, raised prevailing wages, essentially eliminating all entry-level wages for H and E-3 visas. This rule is already in effect. The second, set to go into effect in December, changes the definitions of “specialty occupation” and the “employer-employee relationship.” DHS has predicted that with these changes, one-third of H-1B petitions will be denied. Both these rules were promulgated as interim final rules and have already been challenged in court.

There will be a 31-day substantive comment period until December 2, 2020. DHS is promoting the idea that elimination of the random selection process will make it possible for petitioners to potentially improve their chances of selection by agreeing to pay higher wages to H-1B workers. However, because prioritizing by wage level will effectively preclude most entry and lower experience positions, many companies will find they are no longer able to realistically rely on H-1B employees.  It is expected that the Modification Rule, like the others in the trio, will become the subject of litigation.

Jackson Lewis attorneys will continue to follow the progress of this rule and provide updates as they become available.

Earlier today, USCIS announced it is implementing the registration process in the next H-1B lottery. H-1B employers have been awaiting confirmation of and details regarding the new registration process for H-1B cap-subject petitions.

Every “cap season,” employers prepare and file petitions subject to the annual H-1B cap in early April. Beneficiaries of petitions selected in the H-1B lottery can, upon approval of those petitions, commence employment for the sponsoring employers as of the following October 1. For the fiscal year 2021 cap, employers will undergo a new process that USCIS says “will dramatically streamline processing by reducing paperwork and data exchange, and will provide an overall cost savings to petitioning employers.”

DHS formally created the H-1B registration requirement in the final rule published on January 31, 2019, which took effect on April 1, 2019. Per the final rule published November 8, 2019, employers filing cap-subject petitions for the fiscal year 2021 cap will be required to first electronically register and pay the associated $10 H-1B registration fee. That final rule is effective December 9, 2019.

Among the announced requirements, features and steps of the H-1B cap registration process are:

  • Employers must complete a registration process requiring only basic information about the company and each beneficiary.
  • USCIS will open an initial registration period from March 1, 2020 through March 20, 2020.
  • The H-1B lottery, if needed, will then be run on the electronic registrations received.
  • Employers whose registrations are selected will be eligible to file H-1B cap-subject petitions within the prescribed timeframe.
  • USCIS will post step-by-step instructions informing registrants how to complete the online registration process along with key dates and timelines as the initial registration period nears.
  • USCIS will conduct public engagements and other outreach activities to ensure registrants’ and interested parties’ familiarity with the new registration system.
  • USCIS may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.
  • DHS will publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration system and provide additional details on the process.

We will provide further updates as USCIS announces additional details and instructions leading up to the initial registration period. We also encourage employers to consider their hiring needs and potential candidates, and gather the basic information necessary for initial registration as early as possible. As there may be “growing pains” associated with USCIS’s first-time use of this new process, it is not too early to start preparing.

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.

Hoping to recover some of its operating costs, reduce backlogs, and reestablish timely case processing, USCIS is proposing to adjust its fees for the first time since 2016.

The proposed rule is predicted to generate close to an additional $2 billion per year, on average, for USCIS by keeping humanitarian case fees low and adding costs to business-related petitions and applications. The idea is that the fees will be based on the filers’ ability to pay.

However, raising the fees on business visa petitions and applications fails to recognize that small businesses may not be able to absorb these costs and will be at a competitive disadvantage in the search and retention of talent – even if large companies might be able to cope with the increases.

The proposed fee increases include:

  • H-1B Cap Registration Fee – $215 (currently, $10)
  • H-1B Filing Fee – $780 (currently, $460)
  • L-1 Filing Fee – $1,385 (currently, $460)
  • O-1 Filing Fee – $1,055 (currently, $460)
  • E and TN Filing Fee – $1,015 (currently, $460)
  • I-765 EAD Paper Filing Fee – $650 (currently, $410)
  • I-765 EAD Online Filing Fee – $555 (currently, $410)
  • I-131 Application for Travel Document – $630 (currently, $575)
  • I-485 Application for Adjustment of Status – $1,540 (currently, $1,140)
  • Petition by Investor to Remove Conditions on Permanent Residence – $9,525 (currently, $3,750)

Beyond the proposed fee changes, USCIS is also proposing:

  • Generally incorporating biometrics costs in the main benefit fee
  • Establishing separate filing fees for Form I-129 petition types
  • Limiting the number of beneficiaries allowed on certain petitions for nonimmigrant workers
  • Revising the premium processing timeframe from 15 calendar days to 15 business days
  • Instituting lower fees for certain cases filed online
  • Instituting a new $600 surcharge on all fee-paying receipts I-129 and I-140 petitions to cover costs associated with asylum processing. This surcharge would apply to all initial petitions, changes of status, and extensions of stay.

The 60-day comment period on the proposed rule begins on January 4, 2023, and it continues through March 6, 2023. The new fee rule will not go into effect until after received comments are reviewed and the final rule is published in the Federal Register.

Jackson Lewis attorneys are available to assist with questions about the proposed fees and consult regarding strategic options and planning for possible fee increases.