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.

A new federal law restricts foreign investors’ access to E visas by adding a three-year domicile requirement for investors who obtained their citizenship through Citizenship by Investment (CBI) Programs.

Buried in the nearly 2,000-page National Defense Authorization Act (NDAA), P.L. 117-263, signed into law by President Joe Biden on December 23, 2022, is a provision requiring E visa applicants who acquired their citizenship in an E-visa-qualified country by way of an investment to have been domiciled in that country for a continuous period of at least three years prior to applying for an E-1 or E-2 visa to enter the United States.

Section 5902 of the NDAA reads as follows:

(B)       Modification of Eligibility Criteria for E Visas. – Section 101(a)(15)(E) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(E)) is amended –

(1)       In the matter preceding clause (i) —

(A) By inserting “(or, in the case of an alien who acquired the relevant nationality through a financial investment and who has not previously been granted status under this subparagraph, the foreign state of which the alien is a national and in which the alien has been domiciled for a continuous period of not less than 3 years at any point before applying for a nonimmigrant visa under this subparagraph)” before “, and the spouse ‘’; and….

This amendment undercuts the ability of countries with CBI programs (including Bulgaria, Egypt, Grenada, Jordan, Macedonia, Montenegro, and Turkey) to attract investment by offering the possibility of obtaining a United States E visa. It also makes it more difficult for citizens of countries that do not have E agreements with the United States to obtain a visa allowing them to move to the United States for trade or investment.

Persons who have previously been granted E-visa status are exempted from the new foreign residency requirement. Persons who acquired their citizenship in an E-visa country by means other than investment (e.g., through birth, marriage, or residency) are also not subject to the requirement.

Jackson Lewis attorneys are available to advise on options and strategies for investors to live and work in the United States.

USCIS announced that it is no longer necessary to provide supporting documentation to change or update a prior gender selection on immigration forms. The intention is to “reduce barriers to travel, employment, services, and benefits by eliminating delays and preventing discrimination and harassment due to inconsistent identity documents.”

USCIS will be changing its forms to include an “X” marker for gender.

The documentation policy change is consistent with state-level self-certification policies for gender marker designations on driver’s licenses and identification cards. Similar policies have been adopted by other federal agencies, such as the Transportation Security Administration.

USCIS has included a table on its website explaining how to update current documents to request a gender change. If the benefit request is pending, individuals will generally have to submit a letter explaining the change requested. If the USCIS-issued document has already been received, the requestor will generally need to submit a new application, a letter explaining the request, and pay the applicable filing fees.

There is one exception: Form N-565, Application for Replacement Naturalization/Citizenship Document, will still require submission of supporting documentation.

Jackson Lewis attorneys are available to advise regarding the new policy and will provide updates as they become available.

On Equal Pay Day, Congresswoman Eleanor Holmes Norton (D-DC) introduced three bills, including a national pay transparency bill, that she believes would help to close the pay gap between men and women.

She chose Equal Pay Day for the introduction of these bills because it marks the additional days women must work to earn what men earned the prior year.

One of the bills, the Salary Transparency Act, amending the Fair Labor Standards Act, would require all U.S. employers to provide the salary range for jobs in all advertisements. The salary range would need to include wages and other forms of compensation the employer anticipates offering the successful candidate for the job opportunity. The act includes civil penalties ranging from $5,000 for a first violation, increased by an additional $1,000 for each subsequent violation, not to exceed $10,000, plus liability to each job applicant for damages and reasonable attorneys’ fees. The bill also includes a private right of action.

This bill comes at a time when more states are adopting their own pay transparency laws, many of which have different requirements. Due to the difficulty of conforming to these various  laws, “some large corporations including Airbnb Inc. and Microsoft Corp. have begun to include pay information in all US job ads, which they’ve said also helps attract and retain employees.” Indeed, some employers, when doing PERM Labor Certification cases for sponsored visa employees, are choosing to comply with the most restrictive state law in their footprint to avoid possible state law violations, while balancing different geographic pay differentials, especially when many jobs can be worked remotely from anywhere within the United States. In that regard, federal legislation may come as a relief for some multi-state employers, particularly if it helps slow the wave of new and varied state requirements, which make compliance more difficult.

As compliance with a patchwork of state laws becomes more and more burdensome, employers will have to decide how risk-averse they are.

Jackson Lewis attorneys are available to assist in strategizing on how to comply with pay transparency laws in the employment and immigration arenas.

The Occupational Safety and Health Administration (OSHA) has been given the authority to issue certifications in support of applications for T and U nonimmigrant visas beginning March 30, 2023.

To assist agencies in combatting human trafficking and other crimes, OSHA will issue these certifications during workplace safety investigations that identify qualifying criminal activities, including trafficking, forced labor, and obstruction of justice.

T visas enable certain victims of severe trafficking to remain in the United States for up to four years if they comply with any reasonable request for assistance from law enforcement to detect, investigate, or prosecute human trafficking. T status protects individuals from retaliation for cooperating with law enforcement and offers individuals employment authorization and a path to permanent residence. T status can also be extended to qualifying family members. Because traffickers can take advantage of undocumented individuals, T visas protect them and, at the same time, help law enforcement agencies to investigate and prosecute trafficking crimes. Although 5,000 visas are available annually, that cap usually is not reached.

U visas are available to victims of a broad range of crimes who have suffered mental or physical abuse and who help law enforcement or government officials in such criminal investigations. Like the T visa, the U visa is designed to strengthen law enforcement and protect undocumented individuals from abuse, exploitation, and retaliation. There are 10,000 U visas available annually but, if the cap is reached, petitioners can be placed on a waiting list and granted deferred action or parole and may apply for work authorization. Also like T visas, U visas are available to qualifying family members, and principals and eligible family members may apply for employment authorization. Permanent residence is also a possibility after three years in U status.

Both T and U visas require evidence to establish compliance with any reasonable request for assistance from law enforcement unless the individual qualifies for an exemption from that requirement. Victims may submit a Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons for T visas. U visa applicants must submit a Form I-918, Supplement B, U Nonimmigration Status Certification. Agencies that can provide certifications include: tribal and territorial law enforcement, prosecutors, judges, child and adult protective services, federal and state departments of labor, and other government agencies with civil or administrative investigation and prosecutorial authority. Now, OSHA is specifically included.

Jackson Lewis attorneys are available to assist with any questions regarding OSHA investigations and the intersection between those investigations and grants of T and U visas.