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, L-2, H-4, 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.

Congress has approved an additional 64,716 H-2B visas for fiscal year 2024, supplementing the 66,000 available annually. As in prior years, restrictions will apply. A temporary final rule has been published in the Federal Register setting out the procedures involved.

H-2B visas for temporary, seasonal nonagricultural workers are used primarily for jobs in tourism and hospitality, landscaping and construction, and food processing. Once the annually available 66,000 visas run out, employers are forced to continue operations without sufficient number of workers. The initial allocation of H-2B visas for FY 2024 ran out on October 11, 2023, just days after USCIS began accepting applications.

The supplemental visas are available to employers who can provide evidence they are suffering or will suffer irreparable harm if they are unable to supplement their permanent staff with temporary H-2B workers. The additional visas are going to be distributed in several allocations throughout the year.   

The plan is to have four allocations:

  • First half of FY 2024 (October 1 – March 31): 20,716 for returning workers with start dates on or before March 31, 2024 (regardless of nationality)
  • Early second half of FY 2024 (April 1 – May 14): 19,000 for returning workers with start dates from April 1, 2024, to May 14, 2024 (regardless of nationality)
  • Late second half of FY 2024: 5,000 for returning workers with start dates from May 15, 2024, to September 30, 2024 (regardless of nationality)
  • For the entirety of FY 2024: 20,000 visas reserved for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, and Haiti without regard to whether they are returning workers

When adjudicating cases for the additional visas, the Departments of Homeland Security and Labor have indicated they will also consider the impact on U.S. workers and make every effort to protect the H-2B workers from exploitation through rulemaking.

Individuals from 89 countries are eligible to apply for H-2B visas. This year, Bolivia was added to the list.

Jackson Lewis attorneys are available to assist in navigating the H-2B process, which involves not only capturing one of the limited number of visas available, but also following complex rules regarding filing dates, labor market tests, visa applications, and proving irreparable harm.

The Transportation Security Administration (TSA) is gearing up for what it expects will be its busiest holiday travel season ever while a potential government shutdown may be days away. Although TSA employees and federal air traffic controllers will be required to work without pay during a shutdown, there could be more “out sick” calls than usual – as there were during the 2019 shutdown. This will lead to longer screening times, flight delays, and cancellations for travelers.

The TSA has some tips for holiday travelers:

  1. Pack Smart. Avoid putting prohibited items in carry-ons. “If you can spill it, spray it, spread it, pump it or pour it, then it is liquid and must be packed in a checked bag.” In other words, gravy, cranberry sauce, wine, and the like cannot go in carry-ons, but cakes and other baked goods can.
  2. Bring Acceptable Photo ID. Check your wallet before you leave your house. There are various photo IDs that are acceptable, but travelers typically bring driver’s licenses or passports.
  3. Arrival. Arrive at least two hours prior to your scheduled flight.
  4. Traveling With Firearms. If you are traveling with firearms, those items must be packed in a hard-sided, locked case in a checked bag and declared at the ticket counter when checking in. The maximum penalty for bringing a firearm to a TSA checkpoint is nearly $15,000. Moreover, bringing a firearm to a TSA checkpoint will result in delays and the loss of TSA PreCheck eligibility for up to five years.
  5. New Screening Technologies. Stay aware of new checkpoint screening technologies – watch the signs. Screening technologies vary from airport to airport. In some airports, you may not have to remove 3-1-1 liquids or laptops from your bags, but you will have to put everything into a bin for screening.
  6. TSA PreCheck. Use it if you can. The online application takes just a few minutes. You will need to schedule an appointment at an enrollment center, and you will receive your membership in three to five days. If you want it, there still may be time before your holiday travel. It costs $78.00 for a five-year membership.
  7. Passenger Support. Call ahead for TSA passenger support if you or your family members need special assistance. Call the TSA Cares helpline toll-free at 855-787-2227.
  8. Questions? If you have questions, text TSA at #275-872 (“AskTSA”) or, on X (formerly known as Twitter) or Facebook, use @AskTSA. An automated virtual assistant is available 24/7, and staff is available from 8:00 a.m. to 11:00 p.m. ET on weekdays and 9:00 a.m. to 8:00 p.m. ET on weekends and holidays.
  9. Awareness. Remain aware of your surroundings and report suspicious activity. “If you see something, say something.”
  10. Courtesy. Be courteous and show gratitude to the frontline workers who are trying to deal with the holiday volume. In other words, be patient during high volume days and times. Pack your patience!

Enjoy the holidays!

On October 30, 2023, President Joe Biden issued an Executive Order regarding the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” The Executive Order (EO) directs departments and agencies throughout the government, including the Department of Homeland Security (DHS) and the Department of State (DOS), to develop plans and policies to establish new standards for artificial intelligence (AI) use.

To this end, the EO calls for DOS and DHS 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.

This includes:

  • Streamlining visa processes for noncitizens who seek to enter the United States to work on, study, or research AI, including making more visa appointments available for those individuals;
  • Adding highly skilled talent in AI, including J-1 research scholars and F-1 students in STEM fields, to the list of those who will be able to take advantage of the upcoming program to allow visa renewal inside the United States;
  • Consider changes to the DOS’s J-1 Exchange Visitor Program so that those with AI skills can participate in these programs without becoming subject to the two-year home residence requirement which necessarily interrupts their ability to work in the United States;
  • Make appropriations available for programs to identify and attract top AI talent to U.S. universities, research institutions, and the private sector, including overseas educational components to inform top STEM talent of all U.S. visas options available to them;
  • Publish in all relevant languages informational resources, including a comprehensive guide on options for AI experts to work in the United States;
  • Initiate policy changes necessary to modernize immigration pathways for AI experts, including nonimmigrant and immigrant visas for those with outstanding or exceptional ability (i.e., O-1A nonimmigrant visas), EB-1 and some EB-2 immigrant visa petitions, and also target AI experts who are founders of start-ups to use the International Entrepreneur Rule to work in the United States;
  • Continue the H-1B modernization rulemaking process to make sure it supports the ability of those with AI skills to enter the United States and adjust status to permanent residence;
  • Solicit input on how to identify AI occupations for inclusion on the Schedule A list of occupations that have a fast track to permanent residence (“green cards”) because there are insufficient numbers of qualified U.S. workers available in the field.

DHS and DOS are already working on streamlining visa processes by eliminating backlogs, piloting stateside visa processing, and making it easier for those in STEM fields to enter and remain in the United States. With the EO, those in STEM fields, particularly those involved in AI, will be solicited by the United States and may have some additional advantages in terms of immigration opportunities.

Issuance of a Request for Information for possible additions to the Schedule A list is expected within 45 days, with other reports and plans to be issued over the year.

Jackson Lewis attorneys will be closely monitoring implementation of the EO and are available to answer questions you may have about possible new immigration options for AI workers.

USCIS has issued new policy guidance on L-1 intracompany transfer petitions addressing sole proprietorships and Blanket L petitions.

There are two highlights:

  • USCIS has clarified that sole proprietorships cannot file L petitions on behalf of the owner, i.e., the sole proprietor. USCIS distinguishes sole proprietorships from self-incorporated entities such as a corporations or limited liability companies with a single owner. The distinction is that the corporation or limited liability company – even if there is only a single owner – is nevertheless a distinct entity that can file a petition on behalf of the owner. Of course, the sole proprietor may still file an L petition on behalf of one of its employees. This “change” simply codifies the existing policy.
  • Blanket L petitions allow multinational companies that meet certain requirements to transfer employees from overseas to their U.S. offices without the need to file an individual L-1 petition for each employee. A company applying for a first-time Blanket L petition will receive an initial three-year approval. Following the initial three-year approval, a company must apply to extend the Blanket L petition. Once approved, the extension will be valid indefinitely. USCIS has clarified that if a company fails to timely file for an extension of a Blanket L petition, the company does not have to wait three years before asking for an indefinite extension. The three-year wait applies if the extension is denied.

The Department of Homeland Security’s proposed modernization of H-1B requirements would seem to allow entrepreneurs who are company owners to file H petitions in certain circumstances. Those who own a controlling interest could be eligible for an H-1B visa if the owner spends at least 50 percent of their time performing specialty occupation duties, as opposed to ownership or incidental duties. Of course, the H-1B cap limitations may mean that an H-1B visa is not a practical option.

Jackson Lewis attorneys are available to help with visa strategies for sole proprietors and entrepreneurs, including the International Entrepreneur Rule.

USCIS has issued new policy guidance explaining how it determines whether a beneficiary has met the two-year home residence requirement applicable to nonimmigrant exchange visitors in J status.

Individuals in J status come to the United States to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training. At the conclusion of their J-1 status, they generally must spent an aggregate of two years in their home country before being eligible to apply for other immigration benefits in the United States.

Under the new policy, which went into effect immediately:

  • USCIS will use a preponderance of the evidence standard to determine whether the requirement is met.
  • The country of where the requirement must be met will be determined based upon the country listed in the DS-2019, Certification of Eligibility for Exchange Visitor Status.
  • In calculating the two-year requirement, USCIS considers any partial day spent in the required country as a full day.
  • If the beneficiary cannot return to the relevant country due to civil unrest, travel bans, or other similar issues, the USCIS will consider whether the two-year home residence requirement can be waived on a case-by-case basis.
  • Foreign medical graduates (FMGs) who work for three years practicing medicine in a healthcare facility in a designated underserved area can obtain a waiver of the two-year requirement. The new policy guidance clarifies the three exceptions to meeting the waiver criteria:
    • An FMG may practice medicine for three years with the U.S. Department of Veterans Affairs (VA), even if the VA facility is not in a designated shortage area.
    • An FMG may practice clinical medicine for three years employed by an interested federal agency rather than practicing in a designated shortage area.
    • An FMG may practice specialty medicine for three years, as requested by an interested state or federal agency, which demonstrates there is a shortage of the specialty available to patients in the area who will be served by the FMG.

Jackson Lewis attorneys are available to assist all those subject to the two-year requirement, including FMGs, with the process of strategizing for and applying for waivers.