Seyfarth Synopsis: U.S. immigration agencies have started 2023 at full steam and have issued numerous legal updates. The below will provide a summary of these updates that occurred in January 2023:
1. H-1B Cap Registration
USCIS announced that this year’s cap registration will open on March 1, 2023 at noon EST and close on March 17, 2023 at noon EST. Employers should be prepared to submit critical data points associated with each H-1B registration once the registration period opens in March. USCIS intends to notify employers of the cap H-1B registration selections by March 31, 2023. Employers must have an account online with USCIS as a “registrant” to submit cap H-1B registrations. Employers can open new registrant accounts on February 21, 2023. Please see the full client alert here.
2. Bundling of Concurrently filed H-4 and L-2 I-539 and I-765 Applications with H-1B or L-1 Petitions
As a result of a settlement agreement in Edakunni v. Mayorkas, USCIS confirmed that it will concurrently process L-2 and H-4 I-539 (application to change or extend status) and I-765 (employment authorization application) applications with the H-1B or L-1 petitions when filed concurrently. The bundling of those applications applies to both regular and premium processed H-1B or L-1 petitions. For example, if the H-1B was filed with premium processing, and the H-4 (I-539) and H-4 EAD (I-765) applications were filed with the H-1B petition, then USCIS will also process the dependent applications with premium processing.
This new update went into effect on January 25, 2023, and will last for two years. USCIS has not confirmed if USCIS will adjudicate pending I-539 or I-765 applications that were filed concurrently with Form I-129, prior to January 25, 2023. Please see the full client alert here.
3. I-140 EB-1C and National Interest Waiver Premium Processing and Forthcoming Premium Processing for Certain I-539 and I-765 Applications
Premium processing is now available for all EB-1C Multinational Executive and Manager immigrant petitions and all EB-2 National Interest Waiver (NIW) immigrant petitions. This new update applies to all new and pending EB-1C and NIW immigrant petitions. The EB-1C and NIW premium processing filing fee is $2,500, in which USCIS will process the EB-1C or NIW petition in 45 calendar days.
In this update, USCIS also announced that it expects to gradually open premium processing to new categories and process these applications in 30 days:
| Case | Cost | Expected Implementation Period |
|---|---|---|
| Pending Optional Practical Training (OPT) or STEM OPT I-765 EAD applications | $1,500 | March 2023 |
| All pending and new OPT and STEM OPT I-765 applications | $1,500 | April 2023 |
| Pending I-539 applications for F-1, J-1, and M-1 | $1,750 | May 2023 |
| All I-539 applications for F-1, J-1, and M-1 | $1,750 | June 2023 |
All other cases that are eligible for premium processing incur a $2,500 filing fee and are processed within 15 calendar days. There is no proposed timeline for implementing premium processing for other I-539 applications, including those in E-2, E-3, H-4, L-2, or O-3 status.
4. 60-Day Extension for RFE, NOID/NOIR, and Other Cases
USCIS confirmed that it will again extend the 60-day flexibility through March 23, 2023, to respond to Requests for Evidence (RFEs), Continuations to Request Evidence (N-14), Notices of Intent to Deny (NOID), Notices of Intent to Revoke (NOIR), and other cases, if the request or notice was issued between March 1, 2020, and March 23, 2023.
USCIS will also accept a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:
- The form was filed up to 90 calendar days from the issuance of a decision USCIS made; and
- USCIS made that decision between Nov. 1, 2021, and March 23, 2023.
Notably, USCIS anticipates that, barring changes presented by the pandemic, this will be the final extension of these accommodations. USCIS will announce at a later date if this is the final 60-day flexibility extension.
5. Expansion of Consular Processing in India
The U.S. Mission in India announced that it has opened nonimmigrant visa interviews on certain Saturdays for individuals subject to in-person interviews. The U.S. Embassy in New Delhi and Consulates in Mumbai, Chennai, Kolkata and Hyderabad have all opened in-person interview appointments for select Saturdays.
To reduce wait times and open more visa appointment availability, the Mission stated that it also has taken the following steps:
- Implemented remote processing of interview waiver cases for applicants with previous U.S. visas;
- Dozens of temporary consular officers will arrive in India to increase processing capacity by March 2023.
- Increasing the number of consular officers permanently assigned to the Embassy and Consulates.
- More than 250,000 additional B-1/B-2 appointments have been recently released.
- Consulate General Mumbai, which is the busiest consular post in India, also extended its weekday operating hours to make space for additional appointments.
The Mission also expects that visa processing will be at full staffing (pre-pandemic levels), by Summer 2023.
6. 48-Month Extension of Green Cards for I-751 and I-829 Applicants
USCIS is extending the validity of Green Cards for applicants who properly and timely file Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, for 48 months beyond the card’s expiration date. This change started for Form I-829 applications on January 11, 2023, and it started on January 25, 2023 for Form I-751 applicants.
This means that the Form I-751 and Form I-829 receipt notices will extend the validity of a Green Card for 48 months for individuals who timely filed these applications. The expired green card and receipt notice serve as proper I-9 documentation and travel documentation to reenter the U.S. for 48 months beyond the expiration of the green card. USCIS will also issue new receipt notices to eligible conditional permanent residents who previously received notices with an extension shorter than 48 months and whose cases are still pending.
7. Travelers from China Are Required to Present Negative COVID-19 Test
All air travelers (two years and older) originating from China (PRC) must present a negative COVID-19 test. These travelers, including non-immigrants, U.S. lawful permanent residents, and U.S. citizens, must present a PCR test or an antigen self-test administered and monitored by a telehealth service or a licensed provider and authorized by the Food and Drug Administration (or the relevant national authority) no more than 2 days before their departure from the PRC, Hong Kong, or Macau, and show a negative test result to the airline upon departure.
Due to a significant number of U.S.-bound travelers transiting in Canada from China, the CDC also announced that passengers transiting Incheon International Airport, Toronto Pearson International Airport, and Vancouver International Airport must provide a negative COVID-19 test if they have been in the PRC in the last 10 days no more than 2 days before their departure to the U.S.
More information on this update can be located here.
8. Proposed USCIS Fee Increases
USCIS has proposed a rule that, if implemented, will result in significant fee increases for many immigration filings. The rule is currently in the 60-day commenting period that will end on March 6, 2023. USCIS will then respond to the comments and prepare and publish a final rule. It is expected that USCIS will take several months to draft and publish the final rule.
The proposed rule contains many changes, including but not limited to, a new $600 asylum fee that will apply to many employment-based petitions, additional fees for Advance Parole and EAD applications when bundled with I-485 applications, and changing premium processing from 15 calendar days to 15 business days. Below is a chart of the proposed employment-based fees:
| Immigration Benefit | Current Fee | Proposed Fee | Proposed Change (%) | Additional $600 Asylum Program Fee (Yes or N/A) |
|---|---|---|---|---|
| H-1B Pre-Registration Fee | $10 | $215 | 2050% | N/A |
| I-129 H-1B; H-1B1 Petitions | $460 | $780 | 70% | Yes |
| I-129 L Petitions | $460 | $1,385 | 201% | Yes |
| I-129 O Petitions | $460 | $1,055 | 129% | Yes |
| I-129 E and TN Petitions | $460 | $1,015 | 121% | Yes |
| I-130 Petition | $535 | $710 | 33% | N/A |
| I-140 Petition | $700 | $715 | 2% | Yes |
| I-485 (Filed with I-131 and I-765) | $1,225 | $2,820 | 130% | N/A |
| I-485 (Filed without I-131 and I-765) | $1,225 | $1,540 | 26% | N/A |
| I-765 Paper Filing | $410 | $650 | 59% | N/A |
| I-765 Online Filing | $410 | $555 | 35% | N/A |
| I-539 Paper Filing | $370 (without biometrics) | $620 | 68% | N/A |
| I-539 Online Filing | $370 (without biometrics) | $525 | 42% | N/A |
| N-400 | $640 | $760 | 19% | N/A |
Seyfarth will offer more details and insights once more information is available. Please contact the author or your Seyfarth attorney if you have any questions.