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.

Premium processing will become more expensive starting on February 26, 2024. According to USCIS, it is raising the fees to adjust for inflation.

The newly generated income, estimated to be approximately $185 million, will be used to respond to adjudication demands and reduce processing times throughout the agency.

USCIS has been rolling out premium processing for various types of cases with various fees and timelines since 2022.

If USCIS receives a form with the incorrect filing fee after February 26, 2024, based upon the postmark, it will be rejected. Under USCIS rules, if you do not use the USPS for filing, the postmark date is the date reflected on the commercial carrier’s receipt.

Below are the most recent increases, each slightly more than 12 percent:

FormPrevious FeeNew Fee
Form I-129, Petition for Nonimmigrant Worker: R-1 or H-2B$1,500$1,685
Form I-129, Petition for Nonimmigrant Worker: All Other$2,500$2,805
Form I-140, Immigrant Petition for Alien Worker Employment Based$2,500$2,805
Form I-539, Application to Extend/Change Nonimmigrant Status$1,750 (F-1, F-2, M-1, M-2, J-1, J-2, E-1, E-2, E-3, O-3, P-4, and R-2)$1,965
Form I-765, Application for Employment Authorization$1,500 (Certain F-2 students)$1,685

USCIS operates as a fee-based entity and estimated additional funds are based on historical data.

Jackson Lewis attorneys are available to discuss possible strategies that might allow filings to be done prior to the fee increases.

In response to the Executive Order (EO) on Artificial Intelligence, on December 21, 2023, the Department of Labor (DOL) issued a request for information in the Federal Register asking for public comment on possible additions to the Schedule A list, including more STEM or non-STEM fields.

On October 30, 2023, as part of the EO, President Joe Biden directed government agencies to identify new pathways, and build upon existing programs, to attract and retain the best foreign nationals with AI (and other emerging technologies) knowledge, skills, and education. One of the directives was to solicit input, within 45 days, on how to identify AI occupations (and possibly others) for inclusion on the Schedule A list of occupations that have a fast track to permanent residence (“green cards”).

Schedule A occupations do not require that the employer conduct a labor market test because the government has already concluded there are insufficient numbers of qualified U.S. workers available in those fields. To date, Schedule A occupations have been limited to physical therapists, professional nurses, and immigrants of exceptional ability in the sciences or arts, including certain college and university teachers, and immigrants of exceptional ability in the performing arts. Expanding the Schedule A occupation list will significantly enhance the ability of employers to attract and retained highly skilled employees.

DOL will accept input, including statistical data and other relevant information, on how the agency should establish a reliable, objective, and transparent methodology for revising Schedule A to possibly include more occupations until February 20, 2024.

Schedule A was established in the mid-1960s. Since then, there have been eight revisions (none were major) and the last revision was in 2004. DOL notes the United States is facing “headwinds” in developing enough U.S. workers in STEM (and some non-STEM) careers to replace those workers who are retiring. To build a stronger economy and meet AI challenges, DOL wants to know:

  • What are the sources of data the agency should use to establish unmet need?
  • How should the agency determine the severity of the shortages in various fields?
  • Should Schedule A include new STEM and non-STEM fields?

Jackson Lewis attorneys are available to answer your questions about how this might affect employer’s green card policies and to advise about the submission of comments to DOL regarding the possible expansion of the Schedule A list.

USCIS has announced that it is extending the Temporary Protected Status (TPS) re-registration periods for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan from 60 days to the end of the full 18-month extension period.

The dates are as follows:

  • El Salvador         March 9, 2025
  • Haiti                    August 3, 2024
  • Honduras           July 5, 2025
  • Nepal                  June 24, 2025
  • Nicaragua           July 5, 2025
  • Sudan                 April 19, 2025

TPS is a temporary benefit that allows individuals to remain lawfully in the United States without being subject to detention due to lack of status. The secretary of Homeland Security “may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.”

This announcement means that current TPS beneficiaries who have not yet re-registered for TPS or who have not yet applied to renew their Employment Authorization Documents (EADs) may do so until the end of the current TPS period.

This re-registration period extension does not change any of the previously announced eligibility requirements.

Jackson Lewis attorneys are available to assist you with any questions about TPS, TPS EAD extensions, or how to complete Form I-9 Employment Eligibility Verifications.

Employers that employ foreign nationals have various notification requirements. Immigration cases that require LCA (Labor Condition Application) filings with the Department of Labor (DOL) before submitting petitions to USCIS or the Department of State – H-1Bs, H-1B1s, and E-3s – require the following.

  • Notice must be given to U.S. workers at the relevant worksite(s) in accordance with DOL regulations with the specifics about the position for which the employer will be seeking an H-1B, H-1B1, or E-3 visa.
  • A copy of the LCA must be given to the H-1B, H-1B1, or E-3 worker no later than the date the individual reports to work.
  • When there is a material change in the position, including a change in work location, notice must be given again. If the position is outside of the regular commuting distance of the original worksite, beyond the notice requirement, a new LCA might have to be filed with DOL, along with an amendment to the petition. All this should occur before the employee changes their location.

In these days when so many employees are working from home offices, it may be harder to comply with these notice requirements. For instance, if a foreign national working from home in H-1B, H-1B1, or E-3 status is going to move, they may not think it necessary to notify their employers in advance. But to make a timely determination about what immigration notifications are required, they should be reminded to provide notice to their employers in advance and to notify USCIS of any change in their home addresses.

All non-U.S. citizens living in the United States, including green card holders, must notify the USCIS within 10 days of any move. This notification can be accomplished on the USCIS website by filing an AR-11 either online or in paper form. There are a few limited exceptions to this requirement.

Jackson Lewis attorneys are available to advise you on these and other compliance issues.

Undocumented students are waiting for University of California (UC) leadership to issue a plan that would remove hiring restrictions for all UC students, regardless of immigration status.

The proposed plan, titled Opportunity For All (O4All), is supported by language in the 1986 Immigration Reform and Control Act (IRCA) that the prohibition of employment of undocumented workers does not apply to states. As such, O4All advocates believe that IRCA’s employment restrictions do not apply to the state university system. For students who have been denied scholarships or fellowships requiring on-campus employment, teaching assistant positions and other on-campus employment due to their immigration status, the UC plan could allow them to participate in such opportunities.

Legal scholars have noted that U.S. Supreme Court precedent supports UC’s argument that Congress has no power to regulate state governments in some areas, such as employment, unless there is clear language in the statute. IRCA has previously been interpreted to preclude states from employing undocumented workers, but UC’s O4All may challenge this interpretation. The O4All proposal has gained support from Deferred Action for Childhood Arrivals (DACA) recipient students. The DACA program continues to be challenged in the courts.

In the meantime, New York Governor Kathy Hochul proposed issuing state work permits to asylum seekers. Asylum seekers could then be hired by the state, which could then subcontract such employees to other employers. Governor Hochul indicated that the proposal was intended to help alleviate New York’s migrant and workforce crises. Ultimately, however, Governor Hochul said she was constrained by federal law from enacting the plan because she could not “indemnify or protect the employers from any kind of federal prosecution for violating immigration laws.”

Under the asylum system, many asylum seekers must wait for 150 days before they are eligible to apply for work authorization through the federal immigration system. Given U.S. Citizenship and Immigration Services (USCIS) long processing times, applicants often wait for over a year before they obtain work authorization documentation.

Proposals similar to UC’s and Governor Hochul’s proposals have been criticized by some immigrants, who have noted that such plans would provide work authorization to some immigrants faster than others, who have been waiting for work authorization much longer – due to long USCIS processing times or regulatory restrictions.

Jackson Lewis attorneys will continue to monitor the status of the O4All program and provide updates as they become available.