Recent Developments in Business Immigration Law

Category: Client Alerts
Date: Jan. 18, 2023
Title: Recent Developments in Business Immigration Law

USCIS Expands Premium Processing Eligibility to All EB-1 and EB-2 I-140 Petitions

Beginning Jan. 30, U.S. Citizenship and Immigration Services (USCIS) will accept I-907 Premium Processing requests for all new and pending EB-1 Multinational Executive and Manager I-140 petitions and EB-2 National Interest Waiver (NIW) I-140 petitions. Unlike premium processing for other petitions, where USCIS guarantees an adjudication in 15 days, on these newly included I-140 petitions, USCIS will have 45 days to take an action. USCIS also announced plans to expand premium processing in phases over spring 2023 to certain F-1 students with pending and initial Form I-765 OPT and STEM OPT applications, and certain students and exchange visitors seeking a change or extension of status.

FY2024 H-1B Cap Registration Period Approaching

USCIS is expected to announce the H-1B Cap Registration period for FY2024 in the coming weeks. We expect that this H-1B Cap Registration period will occur during the first two weeks of March 2023. We urge employers to start assessing their needs now to determine whether you wish to sponsor any of your current or prospective employees for H-1B status. This includes those professionals already employed by you in F-1 Optional Practical Training or E-3, TN, J-1/J-2 or L-1A/L-1B status, and any individuals you may wish to bring on board as of Oct. 1, 2023, including F-1 students who will be graduating before June 30, 2023, whom you may hire after graduation. Once USCIS announces the specific registration dates, we’ll send you another client alert with the details on how to set up your online registration account.

By way of background, the H-1B visa is limited to 85,000 visa petition submissions per H-1B Cap season, and the start date for H-1B employment occurs on Oct. 1, the first day of each government fiscal year. H-1B Cap Registration is an annual electronic process through which USCIS receives registrations from employers for the H-1B lottery, and those who are selected may submit an H-1B Cap petition with USCIS. H-1B petitions may be filed with USCIS up to 180 days in advance of the commencement of employment. Traditionally, April 1 is the first day that H-1B filings are accepted by USCIS, and June 30 is the last.

CDC Issues New COVID-19 Test Requirement for Travelers From China

Starting on Jan. 5, air passengers who are at least 2 years old boarding flights to the United States originating from China, Hong Kong, and Macau will be required to provide a negative COVID-19 test taken two days before departure (or documentation of COVID-19 recovery within the last 90 days). The COVID-19 test requirement will apply to all travelers regardless of nationality and vaccination status, or if the persons are traveling from China via third-country transit. Specifically, passengers transiting Incheon International Airport, Toronto Pearson International Airport, and Vancouver International Airport, on their way to the United States, will be required to provide a negative COVID-19 test no more than two days before their departure to the United States if they have been in China in the prior 10 days. CDC will continue to monitor COVID-19 developments and travel patterns and will adjust its approach as necessary.

USCIS Proposed Fee Increase for Nonimmigrant and Immigrant Petitions

On Jan. 4, USCIS announced its proposal to substantially increase filing fees for multiple employment-based immigration petitions and applications. This fee increase may take effect in May or June 2023, after a 60-day public comment period and a final rule is enacted. Under the proposed rule, government fees for employment-based petitions such as H-1B, L-1, O-1, TN, H-2A and H-2B visas and adjustment of status applications may incur significant increases. Additionally, this proposed rule may change the premium processing time frame from 15 calendar days to 15 business days for certain petitions and incorporate biometrics costs into the main benefit fee. USCIS has indicated that the projected revenues from the proposed fee increase would allow it to increase the number of adjudicators processing applications, implement technology improvements, and increase support provided to individuals seeking information and assistance from USCIS. We will continue to keep you posted on future developments.