Immigration
H-1B Lottery and Expansion of Online Filing to H-1B Petitions
By Dilip Patel
By Dilip Patel
On Jan. 12, United States Citizenship and Immigration Services announced that in preparation for the upcoming H-1B Lottery Registration, the online system will be enhanced as soon as February in several ways. First, Petitioner Organizations, referred to by USCIS as “Companies” (but includes other entities such as Universities) will be able to create online Organizational accounts which will allow multiple individuals within a Company to collaborate on and prepare H-1B Registrations. Online accounts which were created by Companies for prior H-1B Registrations will be automatically enhanced. Likewise, an attorney will be able to create Teams with paralegals on their Legal Representative account.
Further, the online systems will enable the entire H-1B Petition to be filed online (including the Premium Process Request). This will have the advantage of avoiding rejections for errors such as missing pages, mailing to the wrong address or even mailing delays. However, at this time, the system will not enable concurrent I-539 filings for dependents. USCIS in response to questions reminded stakeholders that paper filing by mail will remain available.
USCIS Updates Guidance on late filed applications for Change or Extension of Status
On Jan. 24, USCIS issued policy guidance in the USCIS Policy Manual to address when USCIS may, in its discretion, excuse untimely filed extensions of stay and change of status requests.
By way of background, an application for a change of status or an extension of status must be timely filed – meaning USCIS must receive the application while the applicant is still in valid status. This is where it is critical for individuals to monitor their I-94 validity dates. The controlling I-94 is the one issued at most recent entry by Customs and Border Protection (available online), or by USCIS if issued later by USCIS when approving an extension or change of status. I-94’s issued by USCIS are not available from the CBP online system and the CBP systems do not update their records with I-94’s issued by USCIS.
It frequently happens that for some reason or other, the application for an extension or change of status is not timely filed. Fortunately, there is relief under some circumstances. NOTE: “Change of Status” refers to an application to change from one nonimmigrant status to another non immigrant status (such as F-1 to H-1B). This should not be confused with “Adjustment of Status (AOS)” which is used when a nonimmigrant applies for a Green Card while in the US. The rules for AOS are different.
In general, USCIS, in its discretion, may excuse the failure to file before the period of authorized status expired where the requester demonstrates within the extension of stay or change of status request that:
- The delay was due to extraordinary circumstances beyond the person’s control;
- The length of the delay was commensurate with the circumstances;
- The person has not otherwise violated their nonimmigrant status;
- The person remains a bona fide nonimmigrant; and,
- The person is not the subject of removal proceedings and, in the case of extensions of stay, is also not the subject of deportation proceedings
The new update clarifies that extraordinary circumstances may include, but are not limited to, where the delay was due to a slowdown or stoppage of work involving a strike, lockout, or other labor dispute, or where the primary reason for the late filing is the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those certifications.
If USCIS approves an untimely filed application or petition to extend an applicant’s or beneficiary’s stay, the approval is effective as of the date of the expiration of the prior nonimmigrant admission period. When USCIS approves a late filed application for a change of status, the change of status takes effect on the approval date. USCIS considers the applicant or beneficiary of an approved untimely change of status request to have maintained lawful status during the period USCIS excused.
Premium Process Fees Increase
Effective Feb. 26, 2024, Premium Process fees will increase as below:
- For Form I-129 Petitions, the premium process fee will increase from $2.500 to $2,805 (except for H-2B and R-1 petitions which increase from $1,500 to $1,685.
- Form I-140, Immigrant Petition the premium process will increase from $2,500 to $2,805.
- Form I-539, Application to Extend/Change Nonimmigrant Status will increase from $1,750 to $1,965.
- Form I-765, Application for Employment Authorization will increase from $1,500 to $1,685. Premium processing for Form I-765 is only currently available for certain F-1 students.
More Filing Fee Increases to Come
The Department of Homeland Security is close to publishing a regulation to increase USCIS filing fees for many immigration benefit petitioners and applicants, and particularly steeply for employment-based petitioners. The H-1B Registration fee will remain at $10 per beneficiary for the upcoming registration in March 2024.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]