According to the recent publication of the Spring 2024 regulatory agenda, the Biden administration has the H-1B modernization rule, adjustment of status proposal and seasonal/temporary worker regulations targeted for publication by the end of 2024. The next step toward Schedule A reform will occur this August.
H-1B modernization: The Department of Homeland Security proposed to amend regulations governing H-1B specialty occupations and certain F-1 students. DHS accepted comments on its wide-ranging proposed rule until Dec. 22, 2023 and finalized and implemented H-1B registration selection provisions in April 2024. The agency says it “continues to consider the suggestions made in public comments received as they relate to the other proposed provisions discussed in the Oct. 23, 2023 NPRM, and intends to finalize the remaining provisions in one or more actions.”
Lawful permanent residence (adjustment of status proposal): To reduce processing times, improve agency partnerships and promote efficiencies in visa availability, DHS plans to amend regulations governing adjustment of status to lawful permanent residence in the U.S. including permitting concurrent filing of a visa petition and the application for AOS for the employment-based fourth preference category. The target date for publishing the proposal is now August 2024. After publication, there will be a public comment period.
Schedule A: The Department of Labor is considering updating Schedule A and opened a Request for Information period on Dec. 21, 2023 that was extended through May 13, 2024. During this period, the public provided input on whether Schedule A served as an effective tool for addressing current labor shortages, and how DOL can create a timely, coherent, and transparent methodology for identifying science, technology, engineering and mathematics and other occupations that are experiencing labor shortages while ensuring the employment of foreign nationals does not displace U.S. workers or adversely affect their wages and working conditions. According to the regulatory agenda, DOL aims to complete analysis of the comments in August 2024.
H-2 modernization: DHS published a proposal for modernizing H-2 programs on Sept. 20, 2023 intended to reduce inefficiencies, enhance pay protections and address “aspects of the program that may unintentionally result in exploitation or other abuse of persons seeking to come to this country as H-2A and H-2B workers.” Comments were accepted through November 2023 and final action is targeted for November 2024.
Nonimmigrant workers: DHS plans to propose amendments to regulations governing certain nonimmigrant workers including updating the employment authorization rules regarding dependent spouses of certain nonimmigrants; increasing flexibilities for certain nonimmigrant workers and modernizing policies and procedures for employment authorization documents. The targeted publication date is now January 2025.
Immigrant worker reforms: DHS also plans to propose to amend regulations governing employment-based immigrant petitions in the first, second and third preference classifications. According to the regulatory agenda, proposed rule amendments would include updating and modernizing provisions governing extraordinary ability and outstanding professors and researchers; clarifying evidentiary requirements for first preference classifications, second preference national interest waiver classifications and physicians of national and international renown; ensuring the integrity of the I-140 program and correcting errors and omissions. Publication of the proposed rule is now targeted for June 2025.
BAL Analysis: While these regulations would have a significant impact on immigration programs, they are at different stages in the rulemaking process, and policies are still being formulated. Proposed regulations are subject to a public notice-and-comment period, during which members of the public may submit feedback. BAL continues to monitor progress on the regulatory agenda and will provide clients with updates on individual regulations as they move through the rulemaking process.
The passage of the EB-5 Reform and Integrity Act (RIA) in 2022 resulted in the most significant changes to the EB-5 investor immigrant visa program since its establishment in 1990. Among the most notable changes implemented through the RIA was the creation of new “set aside” visa categories for EB-5 investors. These set-aside categories allocate a certain amount of the 10,000 EB-5 immigrant visas available each year to investments in certain areas or projects, which include:
20% reserved for qualified immigrants who invest in a rural area;
10% reserved for qualified immigrants who invest in a ‘targeted employment area’ (TEA), which meets the requirements that apply to areas of high unemployment (unemployment rate of at least 150% of the U.S. national average); and
2% reserved for qualified immigrants who invest in infrastructure projects.[1]
Additionally, the RIA allows for the concurrent filing of the investor immigrant visa petition on Form I-526E and adjustment of status (AOS) filing on Form I-485 for those present in the U.S.[2] While certain types of EB-5 investments filed prior to the passage of the RIA remain subject to visa bulletin backlogs, which particularly impact petitioners and dependent family members born in countries with the highest demand for immigrant visas (e.g., mainland China and India), the Visa Bulletin has not yet announced a visa backlog for any of the set aside categories established by the RIA.
With the establishment of the set-aside categories, the availability of EB-5 immigrant visas is now subject to multiple factors, in addition to country of birth, under the Department of State’s Visa Bulletin, which dictates an applicant’s ability to apply for an immigrant visa or concurrent AOS (if in the U.S.) based on per-country limitations released monthly by the Department of State (DOS).[3] As the visa bulletin is based on visas approved visa petitions and the petitioners’ countries of birth (as opposed to petitions filed with U.S. Citizenship and Immigration Services (USCIS) and currently in process), investors understandably are faced with a level of uncertainty when strategizing the timing of their investments and associated petition filings. This is due to the uncertain nature of the continued availability of immigrant visas, which can retrogress with little notice based on the DOS’ contemporaneous issuance of immigrant visas under the EB-5 program. This post will outline data and strategies available to investors to clarify questions related to potential changes to the visa bulletin that may impact EB-5 immigrant visa availability in the coming months. As the progression of the Visa Bulletin is subject to internal data shared between USCIS and the DOS, as well as the DOS’ internal visa issuance metrics, some level of obscurity and uncertainty should be accounted for when planning for immigrant visa petition filing, but the below is meant to help address and account for these inherent uncertainties.
Background on the Visa Bulletin
In connection with the U.S. government’s policy imperative to encourage a diverse pool of immigrants to the U.S., family- and employment-based immigrant visas are subject to a specific allocation of available visas every federal fiscal year. A total of approximately 140,000 immigrant visas are available every fiscal year for employment-based immigrant visas, including the EB-1, EB-2, EB-3, EB-4, and EB-5 immigrant visa categories. Of the total of 140,000 immigrant visas available annually, approximately 10,000 are allocated to the EB-5 investor visa program, which are also subject to the below per-country visa quotas.
To that end, no one country (based on the applicant’s country of birth) can be allocated more than approximately 7.1% of all available immigrant visas.[4] Importantly, the DOS recently revised its interpretation of the statutory language on the 7.1% per country limit to clarify that it applies in any preference only if a country’s use of visas exceeds 7.1% of all employment-based preferences together.[5] For example, the 7.1% per country limit for Vietnam will only start in the EB-5 category if Vietnam were to reach the 7.1% limit for the overall 140,000 employment-based visas available. In the past, investors born in Vietnam and Taiwan also have been high users of EB-5 visas; however, with this new interpretation by DOS, they will likely never be subject to a per-country limitation for EB-5 again given that these countries generally have never reached 7.1% of the overall 140,000 employment-based immigrant visas.
The above only tells part of the story on immigrant visa allocation. This is because in addition to the total of 140,000 employment-based immigrant visas allocated yearly to all countries, unused visa numbers from prior fiscal years (i.e. immigrant visas that are available to those born in under-subscribed countries, but not utilized) roll over for use by applicants of over-subscribed countries according to priority date and availability within the immigrant visa preference category.[6] Moreover, unused family-based immigrant visas may also be utilized to address excess demand in employment-based categories.[7] While the specific number of unused immigrant visas varies considerably year to year, there tends be some available unused family-based visa numbers from under-subscribed categories each federal fiscal year based on the most recent data made available by USCIS and DOS.[8] Additionally, unused EB-5 numbers from the unreserved ‘general pool’ of EB-5 immigrant visas available yearly (based on worldwide applicant demand), are reallocated to over-subscribed EB-5 categories, including the above-referenced EB-5 set-aside categories created post-RIA implementation.[9]
EB-5 Investor Immigrant Program Data
With the dynamic nature of the immigrant visa allocation process in mind, there is no simple, readily available formula that can help predict the numbers of EB-5 immigrant visas that may be available in a given fiscal year, nor one that can precisely predict how soon retrogression may impact the EB-5 program, particularly in connection with I-526E petitions filed by investors born in traditionally high-demand countries, like China and India. This process is made difficult because USCIS and the Immigrant Investor Program Office (IPO) have not released important statistics to the public that would allow investors to accurately predict how long of a backlog may form in the various set-aside categories. However, we do have some data.
To solve for the lack of government-released data, stakeholders have filed Freedom of Information Act (FOIA) requests that provide more nuanced data on the government’s current processing volumes. Notably, recent data disclosures made available through FOIA requests found a significant increase in demand for the rural set-aside category, but demand remains “below the needed level to absorb the near-term annual visa supply.” The data released also showed that demand for high unemployment TEA set-aside continued to increase through the end of 2023, which may result in a backlog for that specific set-aside category.[10] As expected, demand remains particularly high for immigrant applicants born in mainland China; the below chart published in connection with the data disclosed pursuant to FOIA provides further insight on the processing volumes:
TOTAL NUMBER OF I-526/I-526E FILED FROM APRIL 1, 2022,TO NOVEMBER 2023, BY TEA CATEGORY AND COUNTRY OF CHARGEABILITY (LATEST STATS AS PER AIIA FOIA DATA)[11]
China
India
Taiwan
Rest of World
Total
Total %
Rural
767
174
18
134
1,093
32%
High unemployment
976
375
209
625
2,185
63%
Infrastructure
0%
Multiple TEA categories
7
3
5
16
0.5%
Not TEA
26
21
6
97
150
4%
Total
1,776
573
233
861
3,444
100%
Total %
52%
17%
7%
25%
100%
While the data above is subject to change and specifically reflects government filings through November 2023, and spanning multiple federal fiscal years (2022-23), it shows that about two times as many high unemployment set-aside I-526E Petitions were filed as compared to rural area set-aside I-526E Petitions. However, in June 2024, USCIS also released their January to March 2024 form data, which revealed that an additional 1,810 I-526E Petitions had been filed with USCIS over that three-month period, leaving 3,672 I-526E Petitions pending as of March 31, 2024.[12]
Importantly, the quarterly USCIS data shows a huge number of new I-526E Petitions were filed during Q2 2024. Half of all I-526E Petitions pending as of the date of this blog were filed just in Q2 of 2024. USCIS has not released any statistics to show the breakdown of I-526E Petitions filed in the high unemployment or rural area set aside categories. Anecdotal evidence from stakeholders and projects seems to show a strong uptick in the demand for rural area projects, and it is possible that many of these new I-526E Petitions were for rural area set-aside visa numbers. More data from USCIS will be required on this point to give investors a more accurate picture on visa wait times in both rural area and high unemployment set-aside projects.
Moreover, the USCIS Q2 2024 data shows that the agency only completed review of 356 I-526E Petitions this fiscal year. The statistics do not break down completions by approvals or denials. Given the small number of case completions during this fiscal year, no visa retrogression has been announced in the Visa Bulletin because an insufficient number of I-526E Petitions have been approved to necessitate announcement of retrogression for any country.
In fact, at a recent conference, the DOS indicated that there is a record amount of EB-5 visas available for this year and predicted again for next year. Specifically, DOS is predicting that there are more than 14,000 unreserved EB-5 visas and more than 8,000 set-aside visas available in FY 2024, and that there will be more than 11,000 unreserved EB-5 visas and more than 6,800 set-aside visas available in FY 2025. Together, that is more than 14,800 set-aside visas over this fiscal year and next, split between rural and high unemployment according to their percentages. This would mean approximately 9,800 rural visas and 4,900 high unemployment EB-5 visas are available over this fiscal year and next, with additional high numbers remaining available in the unreserved EB-5 category. Even assuming that each petitioner also brought two dependent applicants with them to the U.S., the sheer number of EB-5 visas available in these categories over this year and next would provide many immigrant visa numbers for applicants and their dependents in both set-aside categories, and drastic retrogression wait times are not yet predicted.
Additionally, note that the data provided reflects raw numbers of petition filings and does not take into account potential roll overs of additional unused immigrant visas, as noted above. In addition, applicants born in under-subscribed countries, like Vietnam and Taiwan, with robust demand for EB-5 immigrant visas that may qualify for the set-aside category, still have the option to choose to process under the general pool of unreserved EB-5 visa numbers, thereby freeing up additional availability under the reserved high-unemployment and rural TEA set-aside categories for individuals born in mainland China. This selection is typically made at the time that the National Visa Center (NVC) processes the immigrant visa application for applicants based outside of the U.S.
Key Takeaways
There are a record number of EB-5 visas available to applicants in both the high unemployment and rural area set-aside categories in FY 2024 and FY 2025. While stakeholders need more data from USCIS on the breakdowns of pending I-526E Petitions between the high unemployment and rural set-aside categories, there is a record number of visas available and extensive backlogs are not expected to occur like those experienced by pre-RIA I-526 Petitions.
File the I-526E Petition and associated AOS applications concurrently if possible. Although visa numbers remain available in the set-aside categories even for traditionally high-demand countries, the dynamics associated with the DOS Visa bulletin may result in retrogression with little notice. Filing concurrently where eligible can provide multiple benefits in the event of retrogression, including:a. Locking in dependent child’s age under chart A or chart B of the DOS Visa Bulletin, which under the Child Status Protection Act (CSPA) allows for a tolling of age progression while the petition is in process and based on the unavailability of a visa number; and
b. Obtaining short-term U.S. immigration benefits that allow for work (employment authorization document (EAD)) and travel (advance parole (AP)) while the USICS processes the AOS filing.
Individuals born in under-subscribed countries with qualifying investments in rural or high-unemployment TEAs should consider opting for processing under the general unreserved pool where possible. This would allow for use of additional reserved immigrant visas in the set-aside categories by those born in countries with higher demand for EB-5 immigrant visas, such as China and, potentially, India.
Monitor visa bulletin progression and available government data. It will remain important to continue monitoring Visa Bulletin releases and planning for potential retrogression. As noted above, while the set-aside categories created under the RIA remain broadly available for immigrant visas and concurrent AOS processing, conditions may change with little notice as the government processes its backlog of filed EB-5 petitions or if USCIS speeds up its processing of I-526E Petitions.
[8] See, e.g., “Employment-Based Adjustment of Status FAQs,” USCIS, May 20, 2024 (“DOS determined that the FY 2023 employment-based annual limit was 197,091, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023. In addition, 6,396 EB-5 visas carried over from FY 2022 to FY 2023 in the reserved subcategories.”)
On June 18, the executive branch announced one of the most significant executive actions affecting U.S. immigration since establishing the Deferred Action for Childhood Arrivals (DACA) program in 2012
The family unity action would allow many undocumented spouses of U.S. citizens to obtain green cards in the U.S. without needing to depart the country
The DACA provisions would make it easier for some DACA recipients to qualify for a work visa
On June 18, 2024, the Biden administration announced one of the most significant executive actions promoting family unity and streamlining the process for Deferred Action for Childhood Arrivals (DACA) recipients seeking to transition to work visas using existing legal authority.
Family Unity and Parole in Place for the Undocumented Spouses of U.S. Citizens
The executive actions initiate a process that will allow certain non-citizen spouses of U.S. citizens to apply for their green cards without leaving the U.S. Currently, a U.S. citizen can sponsor their non-citizen, foreign-born spouse for permanent residency by filing an I-130 immigration petition for the individual, regardless of their immigration status. Immigrant visas are available in this category without backlogs, unlike many other categories. However, undocumented spouses who didn’t enter the U.S. legally typically don’t qualify under current law to complete the permanent residency process in the U.S. In these situations, the spouse typically must depart from the U.S. to complete the process at a U.S. embassy or consulate abroad, thereby triggering a 10-year penalty to lawful readmission under immigration law unless waived due to hardship to a qualifying relative. This process is lengthy, uncertain and expensive, discouraging many of these families from pursuing these steps.
To provide relief, the Biden administration proposes to use the humanitarian parole authority of the executive branch to place qualifying individuals in a legal “parole,” which would then allow them to apply for adjustment of status. Approximately half a million spouses and stepchildren of U.S. citizens in “mixed-status” households could benefit from this change, if implemented.
The availability of this program, also known as Parole in Place, for qualifying non-citizen spouses will be formalized through a rule-making process and publication in the Federal Register. However, the subsequent announcement by the Department of Homeland Security (DHS) on June 18 included the following specifics for individuals to qualify:
Continuously resided in the U.S. for 10 years since June 17, 2014
Physically present in the U.S. on June 17, 2024
Legally married to a U.S. citizen as of June 17, 2024
Entered the U.S. without admission or parole and do not currently hold any lawful immigrant or nonimmigrant status
Have not been convicted of any disqualifying criminal offense
Do not pose a threat to national security or public safety
Merits a favorable exercise of discretion
This program would also include non-citizen children of these spouses (i.e., stepchildren).
All requests will consider the applicant’s previous immigration history, criminal history, the results of background checks, national security, and public safety vetting, and any other relevant information available to or requested by the U.S. Citizenship and Immigration Services.
Employers may stand to benefit from a substantial new group of individuals who will be work authorized and whose statuses could be legalized in the U.S. if this program proceeds.
DACA Recipients and Undocumented College Students
The administration subsequently announced that it is also taking additional steps to facilitate the process for DACA recipients to obtain work visas. DACA was created in 2012 by President Barack Obama as a means for immigrant youth who met certain eligibility requirements to qualify for work authorizations and obtain “deferred action.” While DACA protection has enabled hundreds of thousands of individuals to legally work and live in the U.S., the program has faced considerable uncertainty since 2017, when the Trump administration initially sought to terminate the program but was prevented from doing so in the federal courts.
The program continues to face legal challenges, and additional litigation before the U.S. Supreme Court is very likely. Fundamentally, DACA is not a legal status – the reliance on “deferred action” simply reflects DHS’ decision not to bring immigration removal proceedings against a specific individual. While many DACA recipients and their employers have since sought to transition to a work visa or other legal status that Congress specifically established in the Immigration and Nationality Act (INA), the process for doing so is uncertain, expensive and cumbersome. Since DACA recipients either entered without authorization or were out of status when they received DACA protection, they are typically ineligible for a transition to a lawful status within the U.S.
Instead, they are required under immigration law to “consular process” outside the U.S. and obtain a work visa at a U.S. consulate. The individual’s departure from the U.S. could trigger removal bars (similar to those described above), requiring the individual to obtain a temporary waiver of inadmissibility from the government. These waivers, known as “d3 waivers” based on the section of the INA to which they relate, can take months to obtain and the outcome of such a waiver is not certain. These cumulative issues have chilled the interest of many employers and DACA recipients in pursuing these waivers.
In the coming weeks, the administration is expected to announce additional steps to streamline the availability of d3 waivers. The U.S. Department of State will announce changes to its process for granting such waivers to DACA recipients through updates to the Foreign Affairs Manual, and DHS has indicated that it will adopt the State Department’s policy changes. These steps, if implemented, are very good news for many employers and the DACA recipients that they employ by providing a more efficient, robust and reliable process for transitioning DACA recipients to a more stable and lawful status in the U.S.
Coalition for the American Dream published the report days ahead of the 12th anniversary of the DACA program on June 15.
Current DACA recipients number more than 500,000. The report finds that future long-term economic losses and costs could approach $1 trillion over the lifetimes of DACA recipients.
Other economic and workforce impacts include:
As many as 168,000 U.S. jobs in DACA-owned businesses could be lost.
U.S. workforce losses could include 37,000 healthcare workers, 17,000 STEM professionals and 17,000 educators.
Lost business training and recruitment costs for current DACA employees could reach $8 billion.
Additional Information: The report’s demographic and economic estimates and business impacts are based in part on data collected in the U.S. Census Bureau’s 2022 American Community Survey, the March 2022-2023-2024 Current Population Surveys and data from U.S. Citizenship and Immigration Services.
Coalition for the American Dream is an organization of more than 100 businesses, trade associations and other groups representing every major sector of the U.S. economy and more than half of American private sector workers. Its mission is to seek the passage of bipartisan legislation that gives Dreamers a permanent solution.
BAL Analysis: The report notes if DACA ended and work authorizations were denied renewal, 440,000 workers would be forced from the U.S. workforce over a two-year period, with the most acute impact on health, education and STEM occupations. The business community continues to show strong support for DACA and the crucial role Dreamers play in the U.S. economy. Given the uncertain environment, DACA recipients who qualify for a renewal are urged to apply for one as soon as they can.
The State Department’s global visa wait times for Paris continue to grow and substantial visa processing delays are expected through mid-September due to the 2024 Paris Olympic and Paralympic Games and D-Day 80th anniversary celebrations.
Key Points:
The Olympics will take place in Paris from July 26 to Aug. 11 and the Paralympics will take place from Aug. 28 to Sept. 8.
Travelers are encouraged to regularly check the U.S. Embassy special events page for France before and during their stay.
The most current visa appointment wait times for the U.S. Embassy Paris can be found here.
Additional Information: Individuals applying for a U.S. visa in Paris should expect delays through at least mid-September 2024. The U.S. Embassy Paris will primarily be providing American citizen services during these events due to the embassy’s location and the increased presence of U.S. citizens in Paris.
The State Department urged travelers in need of a new passport to have their passports renewed as soon as possible if traveling to France and Europe this summer. The French government has launched a new consulate platform to help streamline the visa application process for the 2024 Paris Olympic and Paralympic Games. While U.S. citizens generally do not need a visa to enter France, travelers can complete a short online questionnaire to determine if they require a visa.
The single-permit directive enters into force on May 21, 2024, and EU member states have until May 21, 2026, to implement the terms of the directive domestically.
Member states will maintain the ability to decide which and how many third-country workers to admit to their labor market.
For Ethiopian nationals, the standard visa-processing period has been changed to 45 calendar days instead of 15. In addition, EU member states will no longer be able to waive certain requirements when issuing visas to Ethiopian nationals, including evidence that must be submitted to issue multiple-entry visas and visa fees for holders of diplomatic and service passports.
Background: As BAL previously reported, the directive currently in place was designed to attract additional skills and talent to the EU to address shortcomings within the legal migration system, provide an application process for EU countries to issue a single permit and establish common rights for workers from third countries. The revised law shortens the application procedure for a permit to reside for the purpose of work in a member state’s territory and aims to strengthen the rights of third-country workers by allowing a change of employer and a limited period of unemployment. The new agreement is part of the “skills and talent” package, which addresses shortcomings in legal migration policy and aims to attract greater foreign skilled talent.
The decision to tighten visa guidelines for Ethiopia is in response to an assessment by the EU Commission, which found that Ethiopian authorities have not fully cooperated with officials regarding readmission requests and difficulties persist in issuing emergency travel documents. The commission cited the organization of both voluntary and non-voluntary return operations as a determining factor in altering Ethiopia’s visa privileges within the European Union.
BAL Analysis: The single-permit directive is directed at non-EU nationals working in the EU and aims to create an environment where these individuals are treated equally regarding their working conditions, social security and tax benefits, and recognizing their unique qualifications.
The fee increase will be established on all benefit requests postmarked Apr. 1, 2024, and after.
What Are the Fees Used for and Are There Exceptions?
Benefit request fees make up the primary source of funding for USCIS services. The fees fund benefit requests for “refuges, asylum [seekers], and certain other applicants and petitioners.” Most of the fees adjusted in 2024 have not been increased since 2016, so they now reflect inflation costs from the past 8 years.
The USCIS hopes this increased revenue will help slash processing times and address application backlogs that were affected by increased application volume and the COVID-19 pandemic. However, achieving this will depend on staffing and continued volume of applications.
Acknowledging that some applicants will not be financially able to meet fee requirements, the USCIS determined that an applicant with “an annual gross household income at or below 125 percent of the Federal Poverty Guidelines” meets the requirements for a fee waiver. These household income numbers will continue to update along with the U.S. Department of Health and Human Services’ Federal Register. Applicants seeking a waiver will need to provide documentation of their income including:
Form 1040,
IRS Form W-2,
Pay stubs, or
Support/benefits statements or affidavits from organizations sending financial aid.
A USCIS Deputy Director has the authority to grant a fee exemption required by 8 CFR 106.2. According to USCIS Fee Schedule, to be granted a waiver, the Deputy Director “must determine that such action would be in the public interest, the action is consistent with the applicable law, and the exemption is related to one of the following:”
An agreement between the U.S. government and another nation or nations; or
USCIS error.
USCIS Fee Increases
Please note that the above chart does not reflect all fee increases. For the full list of adjusted fees, please visit USCIS’s Filing Fee FAQs page with the entire breakdown.
Fee increases range from anywhere between $10 to ~$30,000 and affect individual, entrepreneurial, and employment related forms. For reference, the I-956F Application for Approval of an Investment in a Commercial Enterprise is increasing $29,900 while the USCIS Immigration Fee is increasing only $15. For some forms, especially those that consider biometric services, the fees are decreasing or are completely free.
For applicants who are still in the visa process and worried about the fee increase, getting in all materials PRIOR to Apr. 1, 2024, may ensure that the current fee is charged.
The registration period for the fiscal year (FY) 2025 H-1B cap petitions opened at noon ET March 6, 2024, and will continue to run through noon ET March 22, 2024. Employers seeking to file an H-1B cap-subject petition must electronically register during this period using a U.S. Citizenship and Immigration Services (USCIS) online account. The registration process includes basic information about the prospective petitioner and each beneficiary along with a $10 registration fee for each beneficiary. The registration process for FY 2025 is governed by the final rule published Feb. 2, 2024, which took effect March 4, 2024.
The final rule includes a new beneficiary-centric selection process to ensure all beneficiaries have an equal chance of selection. Under the new process, registrations will be selected by unique beneficiary rather than by registration. As part of the registration process this year, each beneficiary must provide a valid passport that matches the registration details. See our February 2024 blog post for additional information on the new passport expiration requirements.
As with prior years, it is expected that USCIS will receive enough registrations during the registration period to meet the 65,000 H-1B cap, with an additional 20,000 visas available for those who possess a U.S. master’s degree or higher from an accredited U.S. institution. If the cap is reached, USCIS will conduct a random lottery of the registrations it receives following the close of the registration period. Petitioners will receive an electronic notification if their registration has been selected and can move forward with filing the H-1B petition for only those beneficiaries named on the selection notice.
H-1B cap-subject petitions for those registrations that are selected in the initial drawing can be filed between April 1, 2024, and June 30, 2024. USCIS clarifies in the final rule that requesting an H-1B cap employment start date after Oct. 1 of the relevant fiscal year is permissible. Petitioners that have received H-1B selections will be able to use their USCIS organizational account to electronically file any H-1B petitions that were selected in the process, or they can file a traditional paper filing of the H-1B petition that is sent to USCIS by mail or courier.
H-1B denial rates in fiscal year 2023 increased slightly from FY 2022, according to a National Foundation for American Policy analysis of U.S. Citizenship and Immigration Services data.
Despite the increase, H-1B denial rates for FY 2023 still remain substantially lower than during the Trump administration when they peaked in FY 2018.
The NFAP analysis stated that “H-1B temporary status remains often the only practical way for an international student or other high-skilled foreign national to work long term in the United States” and said the 85,000 H-1B cap “remains the leading immigration problem for most tech companies.” The report can be read here.
The Department of Homeland Security (DHS) and Department of Justice (DOJ) recently issued a fact sheet to guide employers on electronically completing, modifying, or retaining Form I-9. The joint guidance applies to employers using private sector commercial or proprietary I-9 software programs to complete Form I-9 or participate in E-Verify.
Requirements for Employers Using Electronic Form I-9 Software Programs
DHS permits completing Form I-9 electronically provided that the I-9 software complies with I-9 and E-Verify requirements. The DHS/DOJ fact sheet confirms that employers, rather than the software vendor, are responsible for ensuring compliance with these requirements. It provides the following key requirements and states that an I-9 software must:
Provide employees with access to the current acceptable version of Form I-9, I-9 instructions, and list of acceptable documents.
Allow employees to leave optional fields blank and accommodate employees with only one name.
Meet integrity, accuracy, security, and reliability requirements designed to prevent and detect unauthorized or accidental creation, alteration, or deletion of stored I-9s.
Comply with standards for electronic I-9 signatures.
Comply with general requirements applicable to I-9 documentation, retention, and audit trail requirements.
Ensure the electronic generation or storage of Form I-9 is inspected and monitored periodically.
Ensure the I-9 forms and all information fields on electronically retained I-9s are fully and readily accessible in the event of a government audit.
Specifically related to modifying and retaining Forms I-9 electronically, the fact sheet states that I-9 software must provide employees, employers, and preparers/ translators the option to make and record corrections to a previously completed I-9 form. Further, the software must uniquely identify each person who accesses, corrects, or changes an I-9 form. Modifications to stored I-9 forms must be properly annotated to include the date of access, the identity of the person making the change, and the nature of the change. Commercial or proprietary I-9 software may lack the functionality to comply with these guidelines regarding providing an audit trail and permitting corrections to completed I-9 records, so these are specific considerations employers should be aware of when assessing potential I-9 software for compliance.
Requirements for Employers Using Electronic Form I-9 Software Programs to Create E-Verify Cases
The DHS/DOJ fact sheet notes that employers who participate in E-Verify and access E-Verify through a software must:
Confirm that the software’s functionality allows employers to follow the requirements detailed in the E-Verify Memorandum of Understanding and DHS’s E-Verify guidance.
Refrain from creating new E-Verify cases due to corrections made to the previously completed I-9 if the employee received a prior “employment authorized” result. Depending on functionality, commercial or proprietary I-9 software may require completing a new I-9 instead of allowing a correction to the previously completed form.
Be able to delay creating E-Verify cases as instructed by E-Verify rules. For example, E-Verify instructs employers to postpone creating E-Verify cases for employees who have not yet received their Social Security numbers and for employees who show certain acceptable receipts for the Form I-9. The software’s functionality should permit employers to delay creating the E-Verify case in these scenarios.
Training for Employer Personnel Administering I-9 Software on Behalf of the Employer
The DHS/DOJ fact sheet also reminds employers to properly train personnel completing electronic Forms I-9 on the employer’s behalf. Key points include the following:
Employer personnel should be familiar with the employer’s procedures to complete Form I-9 or create an E-Verify case outside of the Form I-9 software program if, for example, the person completing the I-9 cannot use the I-9 software program or there is a software outage.
Employers should not pre-populate fields on electronic I-9 forms with employee information. An I-9 software may be part of the employer’s other HR-related systems and the system may initiate the I-9 verification process through impermissibility pre-populating the employee’s information on the electronic I-9.
The employer must not use auto-correct, use predictive text, or post-date an I-9 when completing an I-9 with an I-9 software.
The employer should not complete the I-9 on an employee’s behalf and must not change or update the employee’s citizenship or immigration status attestation. For corrections to Section 1, the process is the same as when completing a paper I-9 and changes or corrections to Section 1 must be made by the employee. The I-9 software must have the functionality to allow the employee to make corrections to a previously completed I-9 form.
The employer must not remove or add fields to Form I-9. An I-9 software that adds additional questions seeking information that is not requested by the I-9 form may violate this guidance.
Employers must permit preparers or translators to assist an employee in completing an electronic I-9.
Employers must permit employees to present any valid and acceptable documentation to establish identity and employment authorization, including acceptable receipts, and should not suggest specific documents for this purpose. Thus, an I-9 software should not notify the employer to, for example, request documentation to reverify an employee’s identity document or reverify a permanent resident card.
The fact sheet reminds employers to not impose unnecessary obstacles that make it more challenging for employees to start work or get paid, such as by requiring a Social Security number to onboard or by not paying an employee who can complete the Form I-9 but is still waiting for a Social Security number.
Given the significant penalties for non-compliance, employers should exercise thorough due diligence when evaluating I-9 software, considering compliance with DHS regulations alongside factors like cost, functionality, and interoperability with its other systems. Although government guidance has been minimal, the fact sheet provides some insight into the government’s stance on regulatory requirements for electronic I-9s and may be helpful to employers when selecting an I-9 software.
