Episode 59: How new immigration regulations will impact H-1B cap season — and more

It’s Feb. 1, and this is your BAL Immigration Report:

• S. Citizenship and Immigration Services announces that H-1B registration will open March 6.
• The State Department kicks off its domestic visa renewal pilot.
• The government publishes two regulations with big implications for immigration programs.

“The other thing we’re really hoping for is that these increased fees are going to — down the road and hopefully sooner than later — result in accelerated adjudication times.”

—Amy Lighter, Partner

U.S. News

H-1B registration period

USCIS announced that this year’s H-1B registration period will run from March 6 through March 22. During this period, prospective petitioners may use their USCIS online account to register H-1B beneficiaries electronically.

The H-1B registration fee will remain at $10 this year but will increase next year to $215 per registration under a fee schedule set to take effect April 1. We’ll have more on this story just ahead in this week’s spotlight.

Domestic visa renewal pilot program

The State Department launched its long-awaited H-1B domestic visa renewal pilot on Monday. The pilot will be open to a total of 20,000 H-1B visa holders whose previous H-1B visa was issued within certain time frames by U.S. diplomatic missions in Canada or India.

If the State Department judges the pilot as a success, the program may be expanded to other visa categories later this year. The initial program will run until April 1.

U.S. news roundup

• The Department of Homeland Security extended and redesignated Temporary Protected Status for Syria.
• USCIS updated fee payment processes for those filing in person.
• The Department of Labor published updated H-2A and H-2B processing times.

Spotlight

Q&A with BAL Partner Amy Lighter: How two new regulations will affect this year’s H-1B cap season and immigration programs more broadly

At 4:15 p.m. Eastern Time on Tuesday, the Department of Homeland Security posted two final rules that had been years in the making: one to overhaul the H-1B selection process, and another to increase USCIS filing fees. The two rules totaled over 700 pages and will have wide-ranging effects.

Amy Lighter, a partner in BAL’s Santa Clara office, joined us to provide her analysis.

Q: Can you tell us more about changes to the H-1B registration and selection processes?

A: The final rule on H-1B is actually pretty far-reaching, but it most importantly included a change that we’ve really been hoping for, which is that the lottery, instead of each individual entry in the lottery being based on a job offer, it’s now going to be based on the foreign national. So this is a huge improvement for companies because it’s going to eliminate the ability for people to kind of game the system in a way that they’ve done in the past, meaning that the more job offers somebody was able to accrue, the better chance they had of being selected in the lottery. That was really getting problematic for employers the last few years: People were attempting the lottery with several different employers, and they wouldn’t know until the time that an H-1B was approved which company they were going to. So this is a really positive difference in that way.

The other way it will help companies is, if somebody is registering multiple times with multiple companies, we’ve seen instances where even a tiny typo would result in USCIS saying that this person was doing something fraudulent and would kick out all of that person’s job offers. So even if you had an employer who had done nothing wrong, had done everything correct in their own registration, if that person had another company apply for them and that that other company had done something wrong, it could result in the first company registration being kicked out as well. It was also really problematic for the foreign nationals who were trying to get through the lottery. So this is going to be a big improvement.

Q: How will an increase in the fee to file an H-1B petition — set to take effect on April 1, the first day on which cap-subject H-1B petitions can be submitted — affect this year’s cap planning?

A: It’s going to be a pretty significant change in overall fees for the H-1B filings this year. An important part that went through with the fee rule was that the controversial asylum program fee stayed in the final rule. This means that, on top of these increased filing fee for Form I-129 that the H-1B is filed on, there’s an additional $600 added to that application. Just to give you an idea, that H-1B filing fee itself is going up from $460 right now to $780 on April 1, plus an additional $600 — that’s nearly $1,400 for an H-1B application starting April 1. So I think those fee projections are going to be a really important first step for a lot of employers.

Q: Apart from the regulations, what other steps is USCIS taking to make H-1B registration easier?

A: As part of the registration this year, there’s another new innovation that’s not part of these rules but is actually going to play an important role as well, which is the new registration portal. USCIS has made some changes to its registration portal that will make it possible for employers and their legal counsel to collaborate more actively to get registrations monitored. Another important aspect of the registration website is that online H-1B filings will be possible this year. Employers are looking at whether they want to continue with the paper filings as they’ve done them before or potentially pivot to doing the electronic filings for the first time. I think people might be a little reluctant to move to electronic filings since it’s not a tested environment yet so I’m not sure that people are going to be eager to put everything through that system, but it’s definitely something people are looking to because one of the benefits will be a slightly decreased filing fee for people who choose to do that.

Q: You expect another high-volume cap registration year, especially because the increase to the registration fee will not be in effect. What are the potential long-term impacts of both H-1B changes and the fee increases?

A: I think some of the key longer-term implications we’re looking at right now include some forecasting for these increased fees. I mentioned the asylum fee that’s included in the final rule, and there’s still a question as to whether that’s going to be challenged by anyone in litigation. The other thing we’re really hoping for is that these increased fees are going to — down the road and hopefully sooner than later — result in accelerated adjudication times. USCIS has stated that is one of their primary goals. All of these fees are to get the resources they need in place in order to adjudicate these backlogs that have grown in almost every category over the last several years and have made the wait times really onerous for foreign nationals and for the companies employing them.

Additional resource: BAL has updated its USCIS fee calculator to reflect the final fee levels.

Global News

Changes to post-graduation work permit program

In Canada, officials have announced changes to eligibility and validity periods for the post-graduation work permit program.

International graduates of master’s degree programs will soon be able to apply for a three-year work permit instead of having their permit length based on their period of study. International students who graduate from a private college licensed to deliver public college curriculums will no longer be eligible for work permits, and work permits will no longer be available to spouses of international undergraduate students. Spouses of master’s and doctoral degree students will continue to qualify for these permits.

China relaxes travel requirements

China continues to relax travel requirements. Officials have relaxed conditions for obtaining port visas, allowed 24-hour visa-free transit at major hub airports and made visas services available at certain public security offices throughout China, among other changes.

To qualify, individuals must be traveling to China for nondiplomatic official business activities, visits and exchanges, investment and entrepreneurship, private affairs or to visit relatives. The measures are part of China’s larger effort to open up the country to foreign visitors to spur economic recovery from its COVID-19 lockdown.

Global news roundup

• The U.K. announced new foreign worker wage thresholds will take effect in the coming weeks.
• Australian authorities introduced a new permanent resident visa program.
• Turkey expanded visa-free entry to six additional countries.

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