U.S. Citizenship and Immigration Services has opened the 90-day filing period for petitioners whose registrations were selected in this year’s H-1B lottery.

Preliminary analysis suggests that this year’s cap-selection rate was even lower than last year’s, when a record number of registrations were submitted. Depending on an employee’s particular circumstances, alternative visa routes may be available.

Employers are encouraged to consider alternatives for those who were not selected in the lottery. These alternatives include:

  • F-1 Optional Practical Training. Newly graduated foreign students may extend their F-1 student status through Optional Practical Training (OPT) if they seek to perform work directly related to their major area of study. A 2016 regulation allows F-1 student visa holders who have degrees in science, technology, engineering or mathematics (STEM) fields to apply to extend their one-year OPT period for an additional 24 months.
  • J-1 exchange visas. Companies may bring foreign students and graduates of foreign universities to the U.S. as trainees for up to 18 months or as interns for up to 12 months. One of the limitations to this visa category is that employers may not hire a J-1 visitor for a position that is filled or would be filled by a full- or part-time employee. Exchange visitors also must prove their intent to return to their home country and in some cases must return to their home country for two years at the end of their J-1 status.
  • H-3 Trainee visas. Trainee visas are available for individuals engaged in job-related training that is not available in their home country. These visas are not intended for U.S. employment and are intended to train the individual for a job they will perform outside the U.S.; therefore, H-3 trainees are restricted in the type of employment and cannot perform work in the normal operation of the business in which U.S. workers are regularly employed.
  • L-1 intracompany transfer visas. The L-1 category allows companies with international offices to transfer employees in managerial or specialized knowledge positions from a foreign branch, affiliate, parent or subsidiary office to their U.S. offices. Only employees with at least one year of experience in the company’s foreign operations in the last three years are eligible. Some companies may consider longer-term strategies of employing select candidates in their overseas office for a year and applying for L-1 status thereafter. L-1B visas for individuals with “specialized knowledge” are valid for up to five years, while L-1A visas for managerial workers are valid for seven years.
  • O-1 “extraordinary ability” visas. Individuals demonstrating extraordinary ability in business, science, education, art or athletics may qualify for an O-1 visa. This category requires evidence of distinguished achievements such as published articles, peer-reviewed activities, major awards, high salaries or employment in a critical capacity for a well-known organization.
  • E-2 Treaty Investor visas. Employees who are nationals of a country holding a treaty with the U.S. may qualify for E-2 visas. Although this route has traditionally been used by individual investors and smaller employers, in recent years, large established companies have started to leverage E-2 visas to hire and retain executives, managers and other essential employees in the U.S. The list of treaty countries is available here.
  • Country-specific nonimmigrant visas. Under bilateral agreements, certain nationalities are eligible for temporary nonimmigrant visas. These visas include H-1B1 specialty occupation visas for citizens of Chile and Singapore, E-3 specialty occupation status for Australian citizens, and TN classification for citizens of Canada and Mexico in designated professional categories. The TN classification was created by the North America Free Trade Agreement and continued in the United States-Canada-Mexico Agreement.

BAL Analysis: Employers are encouraged to work with their BAL attorney to explore H-1B alternatives for their current job candidates as well as to map out long-term options for their workforce. BAL will provide additional cap-season updates as information becomes available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

U.S. Citizenship and Immigration Services has removed the requirement that civil surgeons must sign Form I-693, Report of Immigration Medical Examination and Vaccination Record, no more than 60 days before an individual applies for an underlying immigration benefit.

Key Points:

  • As of March 31, USCIS will accept Forms I-693 for up to two years after the date the civil surgeon signed the form regardless of when the application was filed.
  • Civil surgeons no longer have to sign Form I-693 no more than 60 days before the underlying application for an immigration benefit is filed.
  • USCIS will not send Requests for Evidence for Forms I-693 signed more than 60 days before filing a Form I-485, Application to Register Permanent Residence or Adjust Status.
  • USCIS will still send RFEs if more than two years have passed since the civil surgeon signed the Form I-693.
  • More information regarding the removal of the “60-day rule” is available in this policy alert and the USCIS Policy Manual.

BAL Analysis: USCIS stated that it removed the 60-day civil surgeon signature rule as there was a consensus among applicants, physicians, USCIS officers and other stakeholders that the requirement was confusing and did not “enhance operational efficiency.” Going forward, the agency will accept Form I-693 for up to two years from the date of a civil surgeon’s signature.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

A federal judge in Washington, D.C., has ruled in favor of the government in a lawsuit that challenged an Obama-era rule that allows some H-4 spouses to apply for employment authorization documents.

Key Points:

  • In 2015, a group called Save Jobs USA filed a lawsuit challenging the H-4 employment authorization rule, saying the Department of Homeland Security lacked authority to allow H-4 spouses to work in the United States, among other claims. The district court dismissed the case in 2016, but in 2019 an appeals court allowed the case to move forward and sent it back to the district court.
  • The litigation was put on hold while the Trump administration considered whether to rescind the regulation. After the Biden administration took office, the parties filed motions for summary judgment that have been pending since 2021.
  • On Wednesday, U.S. District Judge Tanya Chutkan issued an opinion upholding the rule, citing the executive branch’s “longstanding and open responsibility for authorizing employment” for visa holders.
  • Leading companies and business organizations had filed an amicus brief in the case supporting the H-4 rule, saying eliminating H-4 work authorization “would not only siphon off U.S. gross domestic product, but gift that productivity — and the innovation that comes with it — to other nations.” The full amicus brief is available here.

BAL Analysis: Wednesday’s ruling is a significant victory that upholds eligible H-4 spouses’ rights to work in the United States. Save Jobs USA may appeal the ruling, and BAL will continue following the litigation and will provide updates as they become available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

U.S. Citizenship and Immigration Services has issued policy guidance to address instances when the last day to file or respond to a USCIS action is on a Saturday, Sunday or federal holiday.

The guidance clarifies that:

  • Where the last day for filing a paper-based benefit request, including the last day before a requestor’s or beneficiary’s birthday or the last day of a qualifying time period, is on a Saturday, Sunday or federal holiday, USCIS will accept the filing if it is received by the end of the next business day.
  • Where the last day for responding by mail to a mailed Request for Evidence or a Notice of Intent to Deny, Revoke, Rescind or Terminate is on a Saturday, Sunday or federal holiday, USCIS will accept the response if it is received by the end of the next business day.

Additional Information: The guidance applies to benefit requests and responses that were pending on or received by USCIS on or after March 29, 2023. USCIS will not apply the policy retroactively.

USCIS considers responses that are submitted electronically to be received immediately; electronic filings are not affected by USCIS not accepting deliveries on Saturdays, Sundays and federal holidays. More information regarding USCIS’ guidance on timeframes for accepting filings and responses on weekends or federal holidays is available here. The updated USCIS Policy Manual is available here.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

Processing times for U.S. passports continue to rise as summer travel season approaches, according to the most recent update from the U.S. State Department.

Key Point:

  • The volume of applications the State Department has received has “outpaced the records set by last year’s volumes by more than 30%,” the State Department reported.
  • The Department is advising applicants to apply at least four to six months before planned travel.
  • Routine services are now taking 10 to 13 weeks (increased from eight to 11 weeks) from the day an application is submitted to the day the new passport is received.
  • Expedited services are now taking seven to nine weeks (increased from five to seven weeks) from the day an application is submitted to the day the applicant receives the new passport.
  • Urgent travel appointments and in-person services at passport agencies or centers cannot be guaranteed. More information on specific passport center’s services can be found on the Passport Agency and Center page.

Additional Information: Mailing times are not included in processing time estimates; processing times begin the day the Department receives the application. It may take an additional two to four weeks from the day the application is mailed for the status of the application to state “In Process.” Some applications may be further delayed because the State Department requests additional information. Applicants must respond to such requests in order for processing to resume. Additional details regarding the request for more information can be found here.

BAL Analysis: Passport processing times are expected to continue to increase as the State Department expects this to be its “busiest summer travel season on record.” As passports are in “unprecedented demand,” U.S. citizens intending to travel abroad and in need of a new passport should renew their passport as soon as possible to reduce the chances of travel delays and complications. Passports must generally be valid for at least six months to enter a foreign country. Employers and employees should continue to consult their BAL professional before planning international travel.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

U.S. Citizenship and Immigration Services announced today that it had completed the H-1B lottery after registrations exceeded H-1B quotas during the electronic registration period.

  • Registrants’ online accounts will now show one of the following statuses for each registration.
    • Selected. The registration was selected to file an H-1B cap petition.
    • Submitted. The registration was not selected in the initial lottery but remains eligible for possible later selection.
    • Denied. Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary and the registration is invalid for this fiscal year.
  • Petitioners may begin to file H-1B cap-subject petitions for selected candidates April 1. The filing period is expected to last 90 days.
  • USCIS has not yet said how many registrations it received, only that it received enough to reach the H-1B cap, including the advanced degree exemption (master’s cap).

BAL Analysis: Employers should begin preparing to file full petitions for selected candidates. While the filing period will remain open for 90 days, employers should prioritize time-sensitive candidates such as F-1 students on cap-gap and others whose status may expire soon. BAL will continue to follow developments related to the H-1B cap season and will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

The U.S. State Department plans to publish a rule tomorrow, March 28, to increase consular fees for nonimmigrant visa applications and Border Crossing Cards for certain Mexican citizens.

Fee increases include:

  • The application processing fee for non-petition based nonimmigrant visas (except E category) will be raised from $160 to $185. This represents a near 15.6% increase over the current fee, but is $60 or 24.5% below the original proposal of $245.
  • The application processing fee for H, L, O, P, Q and R category NIVs, will be raised from $190 to $205. This represents a near 7.9% increase over the current fee, but is $105 or 33.9% below the original proposal of $310.
  • The fee for E category NIVs will be raised from $205 to $315. This represents a near 53.7% increase over the current fee, but is $170 or 35% below the original proposal of $485.
  • The processing fee for the Border Crossing Card for Mexican nationals ages 15 and over will be raised from $160 to $185. This represents a near 15.6% increase over the current fee, but is $60 or 24.5% below the original proposal of $245.

The Department previously proposed increasing the exchange visitor waiver of two-year residency requirement (J-Waiver fee). However, the fee will be kept at $120, instead of the proposed $510.

Additional Information: The rule is set to take effect 60 days after it is published. The State Department stated the increases will help ensure that “fees for providing these consular services better align with the costs of providing the services.” The consular fee increases are less dramatic than the U.S. Citizenship and Immigration Services fee increases.

BAL Analysis: The new consular fees will increase overall costs but are lower than what was originally proposed at the end of 2021. The State Department stated that it made the decision to recalculate the fees “before moving forward with the final rule to ensure that it did not implement fees in excess of its actual costs.” Current fees will remain in place until the effective date. BAL will continue following the rule and will provide updated information as it becomes available.

This alert has been provided by BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

U.S. Citizenship and Immigration Services announced Thursday that it would end pandemic-related flexible measures for responding to some agency requests. The move had been expected after USCIS said in January the measures would be extended to March 23 but likely would not be extended again.

Key Points:

  • Beginning tomorrow, March 24, petitioners/applicants for USCIS benefits must respond by deadlines listed in notices and requests from the agency, including:
    • Requests for Evidence.
    • Continuations to Request Evidence (N-14).
    • Notices of Intent to Deny.
    • Notices of Intent to Revoke.
    • Notices of Intent to Rescind.
    • Notices of Intent to Terminate regional centers.
    • Notices of Intent to Withdraw Temporary Protected Status.
    • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.
  • Documents with an issuance date between March 1, 2020, and March 23, 2023, inclusive, will continue to have an additional 60 days beyond the due date to respond.
  • USCIS retains discretion to provide certain flexibilities on a case-by-case basis upon request, for applicants or petitioners affected by an emergency or unforeseen circumstance.

BAL Analysis: The U.S. government continues to review pandemic-related policies in light of the Biden administration’s plans of ending the COVID-19 national and public health emergencies on May 11. This includes reviewing temporary Form I-9 measures and its vaccination policies for nonimmigrant foreign nationals traveling to the United States. BAL will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.