USCIS issues new guidance on applicability of President Trump’s $100,000 H-1B fee

As discussed in prior posts, President Trump recently signed a proclamation restricting the entry of H1B nonimmigrant workers unless their petitions are accompanied by a new $100,000 fee. On October 20, 2025, USCIS issued additional guidance on the applicability of the fee to H-1B petitions.

Key takeaways from the guidance  

According to this guidance, the following H-1B petitions filed on or after 12:01 am EDT on September 21, 2025 are subject to the fee:

1. Petitions for beneficiaries who are outside the United States and do not have a valid H-1B visa.

2. Petitions requesting consular notification, port of entry notification, or pre-flight inspection for a beneficiary in the United States.

3. Petitions requesting a change of status (COS), amendment, or extension of stay (EOS) where USCIS subsequently determines that the beneficiary is ineligible for that benefit.

According to the guidance, the following are NOT subject to the fee:

1. Previously issued and currently valid H-1B visas.

2. Petitions filed prior to 12:01 am EDT on September 21, 2025.

3. Holders of a current H-1B visa, or a beneficiary of an approved petition, seeking to travel in and out of the United States.

4. Petitions filed at or after 12:01 am EDT on September 21, 2025, that request an amendment, COS, or EOS for a beneficiary inside the United States where the beneficiary is granted that request. Such beneficiaries will not be subject to the fee if they subsequently depart the United States and apply for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.

The guidance provides an email address where petitioners can apply to the Secretary of Homeland Security for an exception to the fee. The Secretary must determine that a particular worker’s presence in the United States is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the alien's behalf would significantly undermine U.S. interests. The guidance also provides a pay.gov link where the $100,000 fee can be paid.

What this means for employers

USCIS’ guidance clarifies the applicability of the $100,000 fee, in that it appears to exempt future H-1B cap cases where the beneficiary is in the United States in another valid status on the filing date. It also exempts petitions requesting an amendment, COS, or EOS for a beneficiary inside the United States where that request is granted.

However, it also confirms that the fee will apply in scenarios where a petition cannot be approved for a COS, EOS, or amendment and must instead be approved for “consular notification.” This creates heightened risk for H-1B extensions filed close to expiration dates, when beneficiaries have gaps in lawful status, or when COS requests are denied. In such cases, the fee may be triggered.

From a compliance perspective, this places greater importance on early and timely filings, use of Premium Processing, and maintaining uninterrupted status, to avoid scenarios in which status cannot be granted within the United States. As always, foreign nationals should consult with counsel before making international travel plans.

While the guidance provides reassurance for most routine extensions and amendments filed on behalf of employees who remain in valid H-1B status, it also raises the stakes for late or complex filings, making proactive case management essential.

Chris Beckerson and Snigdha Ravulapati. © Jewell Stewart Pratt Beckerson & Carr PC 2025

DHS proposes wage-based selection system for annual H-1B cap lottery

On September 24, 2025, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) that would change the way annual H-1B cap lottery selections are made. The announced change would, in years when demand for new H-1B visas exceeds the annual numerical cap, replace the current random lottery with a wage-weighted selection process. Each unique registered beneficiary would get entries in the lottery based on the level of their offered wage (Level IV = 4 entries, Level III = 3 entries, Level II = 2 entries, Level I = 1 entries) in the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) system. After the draw to fill the regular H-1B cap of 65,000 per year, the advanced-degree exemption of up to 20,000 would use the same weighting system.

After the 30-day public comment period, if the regulation becomes a Final Rule, DHS intends implement the new process in the H-1B cap registration in 2026 for new H-1Bs taking effect in FY2027, starting October 1, 2026. However, because litigation is likely in the event of a Final Rule, it is unknown whether or when such a Final Rule would apply.

Note that before the end of the first Trump Administration, in 2020, DHS adopted a Final Rule for a wage-weighted H-1B lottery selection, similar in some respects to the current NPRM. Implementation of that rule was delayed and ultimately withdrawn by the Biden Administration after a federal court vacated it. Our blog post on the NPRM for that Final Rule is here.

Existing H-1B law relating to wages

Under existing law and procedure, the beneficiary’s offered wage is not considered in the H-1B cap lottery registration process. Only after a beneficiary is selected in the lottery may an employer file an H-1B petition with USCIS. As part of the H-1B petition process, the petitioner (employer) must file with the U.S. Department of Labor (DOL) a Labor Condition Application (LCA) attesting, among other things, that it will pay the beneficiary a wage that is the higher of: (1) the actual wage that it pays to all other individuals with similar experience and qualifications for the specific employment in question in the geographic area of employment; or (2) the prevailing wage for the occupational classification, per DOL’s Standard Occupation Classification, or SOC, system, in the geographic area of intended employment. Prevailing wages are usually calculated by reference to the government’s OEWS system. DOL uses OEWS data to set four levels of prevailing wage for each occupation in locations across the United States, referred to as Levels I, II, III, and IV.

Proposal would require employers to calculate required wage before lottery registration

Instead of the minimal information required for an H-1B cap lottery registration under current regulations (employee name and passport details, basic employer information including name, address, FEIN, and authorized signer details, etc.), the proposed regulation would require, in addition, that the electronic registration form include the SOC code for the occupation, the wage that an employer will pay the H-1B worker, the prevailing wage rate for the job, the source of the prevailing wage rate, and the applicable prevailing wage level (Level I, II, III, or IV).

Selection of prevailing wage level for purposes of lottery registration

Because a higher prevailing wage level (I, II, III, or IV) will correlate with increased chances of lottery selection, the proposed rule seeks to prevent “gaming the system.” It would require the employer to identify the prevailing wage level that the wage it intends to pay the beneficiary would equal or exceed for the relevant SOC code in the geographic area(s) of intended employment. The OEWS wage level selected on the petition must reflect the corresponding prevailing wage level as of the date the registration is submitted.

A typical fact pattern for an H-1B registration under the new rule will involve one beneficiary, registered by only one employer, using the OEWS wage data for prevailing wage, for a job that corresponds to an occupation in the SOC system, to be performed in a single geographic location. In such a case, selection of Level I, II, III, or IV will follow normal DOL guidance. However, certain factual variations are covered in the proposed rule as follows:

• If the proffered wage is expressed as a range: The registrant would select the prevailing wage level that the lowest wage in the range will equal or exceed.

• If the H-1B beneficiary will work for the employer in multiple locations, or in multiple positions if the registrant is an agent: The registrant would select the box for the lowest equivalent wage level among the corresponding wage levels for each of those locations or each of those positions and would list the location corresponding to that lowest equivalent wage level as the area of intended employment. In the example give in the preamble of the NPRM, if the beneficiary would work as a software developer (SOC code 15-1252) with a proffered wage of $175,000 in both Sacramento, California, where such wage exceeds Level IV, and San Francisco, California, where the highest level that such wage meets or exceeds would be Level II, the registrant would select the “Level II” box on the registration form and list San Francisco as the area of intended employment.

• If multiple employers register the same unique beneficiary: USCIS uses a “beneficiary-centric” H-1B cap registration process. Multiple employers (provided they are not related to each other and not coordinating with each other) may register the same beneficiary, assuming each employer has a bona fide job for the beneficiary; however, the beneficiary is only entered once in the H-1B cap lottery. If a beneficiary is selected, and has been registered by multiple employers, each employer receives a selection notice, and the beneficiary may then choose to pursue an H-1B with any of those employers. The NPRM proposes to operate in conjunction with the existing beneficiary-centric selection process. Specifically, USCIS would continue to count registrations based on the number of unique beneficiaries who are registered but would enter each unique beneficiary into the selection pool in a weighted manner based on an assigned OEWS wage level. USCIS would assign each unique beneficiary an OEWS wage level based on the lowest OEWS wage level among all registrations submitted on the beneficiary’s behalf. For example, a beneficiary for whom a Level I registration and a Level IV registration are submitted would be assigned to Level I for the purpose of weighted selection.

• If the employer relies on a prevailing wage from a source other than the OEWS wage system: In this case, if the proffered wage is less than the corresponding Level I OEWS wage, the registrant would select the “Level I” box on the registration form.

H-1B cap-subject petition filing following registration selection

An H-1B petition may be filed for a beneficiary only if the petition is based on a valid selected registration. Under the NPRM, the H-1B petition would have to contain the same identifying information and position information, including SOC code, provided in the selected registration and indicated on the LCA used to support the petition. The petition would also have to include a proffered wage that equals or exceeds the prevailing wage for the corresponding OEWS wage level in the registration for the SOC code in the geographic area(s) of intended employment.

Although the NPRM would require the registrant to list only one work location in their registration — the work location corresponding to the lowest wage level if there will be multiple work locations for the same employer – the H-1B petition would have to list all addresses where the beneficiary will work. If the geographic area of intended employment provided in the registration is not listed in the H-1B petition, USCIS may, in its discretion, determine that a change in the area(s) of intended employment is permissible, provided such change is consistent with a “bona fide job offer” at the time of registration.

Bona fide job offer

Substantial attention in the NPRM’s preamble is devoted to the requirement of a “bona fide job offer.” Any variations from the job details that were identified in the H-1B lottery registration will be subject to evaluation by USCIS of whether there was a bona fide job offer. Examples given in the NPRM include:

• The geographic area of intended employment provided at registration is expected to be reflected as a worksite in the subsequently filed petition. However, recognizing that there are legitimate reasons that an intended work location might change between the time of registration and the time of filing the petition, DHS is proposing that USCIS may, in its discretion, find that a change in the geographic area(s) of intended employment would be permissible, provided such change is consistent with a bona fide job offer at the time of registration. For instance, the NPRM’s preamble states, an employer with multiple offices might decide to place the beneficiary at a different office than originally intended at a wage that equals or exceeds the same equivalent wage level for the new location as that indicated on the registration.

• Using the NPRM’s example of the beneficiary who would work in both Sacramento and San Francisco where the registration only listed San Francisco as the area of intended employment, the petition would list both Sacramento and San Francisco as work locations.  In such a case, USCIS would not consider this to be a “change in the area(s) of intended employment.”

• The proposed rule would allow USCIS to deny a subsequent new or amended H-1B petition filed by the petitioner, or a related entity, on behalf of the same beneficiary if USCIS were to determine that the filing of the new or amended petition was part of the petitioner’s attempt to unfairly increase the odds of selection during the registration selection process, such as by reducing the proffered wage to an amount that would be equivalent to a lower wage level than that indicated on the original registration or petition.

• If a new or amended petition includes the same proffered wage but a changed work location such that the proffered wage corresponds to a lower OEWS wage level for the new location than the level indicated on the registration, USCIS could consider that change in determining whether the new or amended petition was part of the petitioner’s attempt to unfairly increase the odds of selection. However, if the wage continues to meet or exceed the same OEWS wage level as listed on the original petition, USCIS would consider the totality of the circumstances when determining whether to deny a new or amended petition.

Reminder about “cap-exempt” H-1B categories, not subject to statutory numerical limits or lotteries

The NPRM’s proposed registration and selection rules apply only to “cap-subject” H-1B registrations/petitions. An H-1B beneficiary’s work for nonprofit research organizations, governmental research organizations, and nonprofit organizations affiliated with institutions of higher education is considered cap-exempt.

We will post further updates as we learn more about the status of this NPRM, and about the revised H-1B registration fields to be included in the myUSCIS registration filing portal in connection with it.

© Jewell Stewart Pratt Beckerson & Carr PC 2025

Presidential Proclamation Imposes $100,000 Fee on Certain H1B Entries

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case.

UPDATE 09/24/2025

Since President Trump released his proclamation on Friday, September 19, 2025, imposing a $100,000 fee on certain H1B entries, several government agencies have released information aimed at clarifying the proclamation’s reach. In prior updates (below) we drew attention to USCIS’ memorandum, CBP’s memorandum, and the White House Press Secretary’s statement on x.com. Since then, several more documents have been released:

USCIS, “H-1B FAQ,” September 21, 2025
Department of State, “H-1B FAQ,” September 21, 2025

These documents are identical in content. They state that:

• The payment is required for “any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025. … The fee is a one-time fee on submission of a new H-1B petition.”

• The payment is NOT required for

  • Previously issued H-1B visas

  • Petitions submitted prior to 12:01 a.m. eastern daylight time on Sept. 21, 2025.

  • “[A]ny H-1B renewals.”  Further guidance is needed on what the agencies mean by “renewals.”

• The proclamation “Does not prevent any holder of a current H-1B visa from traveling in and out of the United States.”

Department of State (“DOS”), “Restriction on Entry of Certain Nonimmigrant Workers,” September 21, 2025

• States that the proclamation’s “restrictions on visa issuance and entry apply only to [applicants] seeking visa issuance or entry into the United States based on H-1B petitions filed with USCIS after the Proclamation’s effective date of September 21, 2025, at 12:01 a.m. Eastern Daylight Time.” The guidance does not state which type of petitions are affected.

• Confirms that no visas have been revoked pursuant to the Proclamation.

• States that all exceptions to the Proclamation “will be determined by the Department of Homeland Security” (DHS), suggesting that DOS will defer to DHS to enforce the fee.

(The White House also released “Fact Sheet: President Donald J. Trump Suspends the Entry of Certain Alien Nonimmigrant Workers” on September 21, 2025, which we did not link to before. We include it here for completeness’ sake, though it did not provide clarifications on the proclamation’s reach.)

Many questions remain and we await further guidance from the agencies. The only thing that seems certain is that the international travel of current H1B visa holders (i.e., those with a valid unexpired H1B visa printed in their passport) should not be affected by the proclamation and the new fee.

Further clarification is needed regarding USCIS-filed H1B petitions for extensions of stay, amendments of stay, and changes of employer, and cap-exempt H1B petitions, that are filed after September 19, 2025. The guidance seems to be pointing to the new policy affecting only those petitions submitted in the 2026 H1B lottery; however, until we have clarifying guidance or real-time experience, we do not know for sure.  

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

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UPDATE 09/21/2025

On September 20, 2025, White House Press Secretary Karoline Leavitt posted the following on x.com regarding the new $100,000 fee in President Trump’s September 19 proclamation:

1.) This is NOT an annual fee. It’s a one-time fee that applies only to the petition.

2.) Those who already hold H-1B visas and are currently outside of the country right now will NOT be charged $100,000 to re-enter. H-1B visa holders can leave and re-enter the country to the same extent as they normally would; whatever ability they have to do that is not impacted by yesterday’s proclamation.

3.) This applies only to new visas, not renewals, and not current visa holders.

It will first apply in the next upcoming lottery cycle.

Assuming this announcement is followed by responsible government agencies, this is good news for current H1B visa holders and their employers. Their international travel should not be affected by the proclamation and the new fee.

Litigation may affect the proclamation’s effect on the upcoming H1B lottery in 2026. We will post here as further updates become available.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

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UPDATE 09/20/2025

On September 20, 2025, U.S. Customs & Border Protection (CBP) posted a memorandum on x.com making certain clarifications to President Trump’s proclamation of September 19. The memorandum states (CBP’s emphasis):

This Proclamation only applies prospectively to petitions that have not yet been filed. It does not impact aliens who are the beneficiaries of currently approved petitions, any petitions filed prior to 12:01 AM ET on September 21, 2025, or aliens in possession of validly issued H­1B non-immigrant visas. United States Citizenship and Immigration Services and the Department of State have been instructed to begin implementing the new monetary requirement for employers submitting petitions on behalf of aliens outside the United States for new H-1B petitions only. The Proclamation does not impact the ability of any current visa holders to travel to or from the United States. CBP will continue to process current H-1B visa holders in accordance with all existing policies and procedures.

On September 20, 2025, U.S. Citizenship & Immigration Services issued a memorandum also making certain clarifications to President Trump’s proclamation of September 19. The memorandum states (USCIS’ emphasis):

This guidance applies to H-1B employment-based petitions filed after 12:01 AM ET on September 21, 2025.  

This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas. All officers of United States Citizenship and Immigration Services shall ensure that their decisions are consistent with this guidance. The proclamation does not impact the ability of any current visa holder to travel to or from the United States.

Both memoranda appear to confirm that current H1B visa holders may travel internationally without becoming subject to the proclamation’s $100,000 fee, which is a critical omission from the proclamation’s text. CBP, which inspects applicants for admission at the border, says the proclamation only applies prospectively to petitions that have not yet been filed; does not impact beneficiaries of currently approved petitions, any petitions filed prior to 12:01 AM ET on September 21, 2025, or beneficiaries in possession of validly issued H­1B non-immigrant visas; and does not impact the ability of any current visa holders to travel to or from the United States.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

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ORIGINAL POST 09/19/2025

On September 19, 2025, President Trump signed a proclamation restricting the entry of H1B nonimmigrant workers unless their petitions are accompanied by a new $100,000 payment. This dramatic policy shift has generated immediate concern among employers, foreign workers, and the broader business community.

Below, we break down the key points of the proclamation and its immediate impact. We believe the effect of this proclamation is limited to new petitions filed after its effective date, September 21, 2025 at 12:01am Eastern Time. However, we anticipate that government agencies will issue implementation details in the coming weeks.

Key Takeaways from the Proclamation

• Applies to H1B workers outside the U.S. The new restriction appears to apply only to H-1B workers outside the United States who seek to enter on or after September 21, 2025. Guidance from U.S. Customs & Border Protection is presumably forthcoming.

• Temporary in scope: The restriction is set to expire after 12 months (unless extended).

• Exceptions available: The Department of Homeland Security (DHS) may waive the requirement for individual foreign workers, foreign workers employed by particular companies, and foreign workers in particular industries where it is deemed to be in the national interest. It is unclear how DHS will administer these exceptions.

• Other petitions: H1B petitions for extensions, amendments, and changes of employer appear to be unaffected. However, we are awaiting guidance from the DHS and U.S. Citizenship & Immigration Services.

What This Means for Employers

• Current H-1B workers in the U.S. do not seem directly affected. Employers can continue filing extensions and amendments under existing rules unless and until clarification is received from DHS.

• New hires abroad are impacted. Unless the $100,000 payment has accompanied an H1B petition for a foreign national outside the U.S.—or an exception applies—entry will be blocked.

• Legal challenges are likely. Similar measures in past administrations have been delayed or struck down in court, meaning implementation may not proceed as quickly or broadly as announced.

Until further information and guidance is received from the government, it is recommended that H1B workers currently present in the United States refrain from international travel.

The proclamation also directs the Department of Labor (DOL) and DHS to begin rulemaking to (1) raise prevailing wage levels and (2) prioritize high-wage, high-skill H1B cases. We will provide more information on this as it becomes available.

Bottom Line

While the headline number is striking, the most important point is that this proclamation does not seem to apply to H1B workers already in the U.S. and may face significant legal challenges before it is implemented.

We are closely tracking developments and will provide timely updates as the situation unfolds.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

Updated USCIS Guidance on O-1 Extraordinary Ability Visa Category

Effective January 8, 2025, U.S. Citizenship and Immigration Services (USCIS) published an update to its Policy Manual, providing clarity and consolidation of existing policy on how USCIS evaluates evidence for O-1 eligibility. These Policy Manual updates provide helpful clarity for founders and/or entrepreneurs to potentially demonstrate that they meet various O-1 criteria. 

Highlights of the updated guidance include the following items:

• Clarifies that although O beneficiaries may not petition for themselves, a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file a petition on behalf of the beneficiary.

• Provides examples of acceptable evidence to prove an individual works in a critical or emerging technology area (including AI).

• Provides guidance on occupational transitions, such as a STEM professor transitioning to a researcher position for a private company, or an engineer transitioning to a leadership position for a tech startup. These types of transitions can result in tricky cases, as it must be shown that the prospective work is within the beneficiary’s “area of extraordinary ability.” USCIS interprets the phrase “area of extraordinary ability” broadly, such that it can include multiple occupations involving shared skillsets, knowledge, and/or expertise, to the extend they are considered within the same “area of extraordinary ability.” The guidance provides a list of relevant factors to consider, including, but not limited to the following items:

  • whether the past and prospective occupations are in the same industry or are otherwise related based on shared duties or expertise;

  • whether the prospective occupation is a supervisory, management, or other leadership position that oversees the beneficiary’s previous position, or otherwise requires shared knowledge, skills, or expertise; and

  • whether it is common for persons in one occupation to transition to the other occupation based on their experience and knowledge. 

• Clarifies the circumstances under which USCIS limits an extension of stay to one year and when USCIS may grant a longer extension, up to three years. When evidence shows the beneficiary will engage in a new event or activity, USCIS may grant an extension of stay for a period determined to be necessary to accomplish the new event/activity, but not to exceed three years. The guidance provides an example in which a researcher’s work involves a different phase or trial for the same research project. Such work would count as a new project and the employer could request a three-year extension.

• Provides guidance on the types of supporting documentation acceptable to meet the regulatory criteria.  Some of the most noteworthy points for entrepreneurs and startups under the O-1A guidance confirm the following:

  • To meet the “command-a-high salary” criterion, a startup founder or entrepreneur may present evidence that the business has received significant funding. Such evidence can be used to evaluate the credibility of submitted contracts, job offer letters, or other evidence of prospective salary or renumeration for services.

  • Meeting the “critical or essential role” criterion requires a showing that the beneficiary works for a “distinguished” company or organization. The guidance lists several factors that can be helpful for evaluating the reputation of startups, including the scale of its customer base, media base, and longevity. Also, USCIS will consider the amount of funding received from government entities, venture capitalists, and other funding sources.

  • For a beneficiary in the early stage of their career, it can be proven that they meet the “critical or essential role” criterion by proving they are a contributor of intellectual property to a startup business that has a distinguished reputation. Also, for a beneficiary in a supporting role rather than a leadership role, USCIS considers factors such as whether the beneficiary’s performance is integral or important to the organization’s goals or activities, especially in relation to others in similar positions within the organization.

  • Also relevant to meeting the “critical or essential role” criterion:  A letter, or other documentation from an interested government agency (including a quasi-governmental entity) can serve as valuable evidence if it demonstrates the agency funds the beneficiary or the work in which the beneficiary plays a critical or essential role.

• Lastly, the Policy Manual update added a new item to the list of documents that could serve as relevant evidence for meeting the “totality of evidence” requirement, in which it is determined whether the beneficiary is among the small percentage at the top of the field and that the beneficiary has sustained national or international acclaim. The new item entails a letter or other documentation from an interested government agency, including a quasi-governmental entity, that attests in detail to the beneficiary’s sustained national or international acclaim.

© Jewell Stewart Pratt Beckerson & Carr PC 2025

USCIS temporarily increases automatic extension period for certain EADs

On Monday, April 8, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Temporary Final Rule (TFR) in the Federal Register (89 FR 24628) that provides a temporary increase in the automatic extension period of employment authorization for certain Employment Authorization Document (EAD) applicants who apply for EAD renewal on a timely basis. The rule affects several EAD applicant classes, including H-4 spouses of certain H-1B nonimmigrants.

The rule is effective from the date of publication until September 30, 2025. In the TFR, USCIS finds that the current 180-day automatic extension under 8 CFR 274a.13(d) is inadequate to prevent approximately 800,000 EAD renewal applicants from losing employment authorization due to USCIS processing delays. USCIS notes that “Such widescale lapses in employment authorization and EAD validity would result in substantial and unnecessary harm.”

USCIS has therefore temporarily amended existing regulations to increase the automatic extension period to up to 540 days from the EAD expiration date. The increase will apply to any eligible renewal EAD applicant (1) with an application filed on or after October 27, 2023, and pending on or after April 8, 2024; or (2) who files a renewal EAD application during the 540-day period starting April 8, 2024 and ending September 30, 2025.

USCIS’ announcement of the TFR is available on the Newsroom page of its website. A list of affected EAD applicant classes is available on the Automatic EAD Extension page of its website. Jewell Stewart Pratt Beckerson & Carr will watch for developments related to this TFR and will post updates here as they occur.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

USCIS issues Final Rule on H-1B cap registration process

On Friday, February 2, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Final Rule in the Federal Register that will bring significant changes to the annual H-1B cap selection process (89 FR 7456). The Final Rule is based on a Notice of Proposed Rule Making (NPRM) for H-1B modernization published on October 23, 2023 (88 FR 72870).  Although the NPRM included several H-1B modernization measures, the Final Rule is solely about H-1B cap selection.  The other proposals in the NPRM are expected to be the subject of a separate Final Rule at a later date.

The Final Rule on H-1B cap selection changes will take effect on March 4, 2024, just prior to the opening of the upcoming H-1B cap registration window on March 6. The Final Rule will make the upcoming and future H-1B cap selection processes “beneficiary-centric.”  Details follow.

Making H-1B cap selection lottery “beneficiary-centric”

The Final Rule bases the H-1B cap selection process on unique beneficiaries rather than unique registrations. It is hoped that this will reduce the incentive for employers and individuals to pursue registrations without the existence of a bona fide job offer. Multiple employers may register the same beneficiary, assuming each has a bona fide job for them.  If a beneficiary registered by multiple employers is selected in the H-1B cap lottery, each employer will receive a selection notice and may file an H-1B petition based on their bona fide job offer that the beneficiary intends to accept -- for example, two employers each offering part-time work to the beneficiary. The Final Rule does not bar related entities from registering the same beneficiary, so long as there is a legitimate business need for those related entities to file multiple H-1B petitions for the same beneficiary.

The key principles in the Final Rule are that a beneficiary will be entered only once in the lottery regardless of the number of employers registering the beneficiary, and that a bona fide job offer must underlie each registration.

To enforce the limit of one H-1B cap selection per beneficiary, beneficiaries will be identified not only by the same information used currently, but also by their passport data (or travel document data if the beneficiary is a refugee or stateless and therefore cannot obtain a passport). Passport or travel document data will be required in all cases. In addition, with limited exceptions, the beneficiary must use the same passport or travel document in the registration that they will use to enter the United States on their future H-1B visa. If an individual has more than one passport or travel document, only one may be used for H-1B cap registration.

Jewell Stewart & Pratt will watch for developments related to the other H-1B modernization proposals that are not yet final and will post updates here as they occur.

© Jewell Stewart & Pratt PC 2024

Government visits to H-1B and L-1 workplaces continue in the hybrid/remote work era

In prior blog posts we have drawn attention to U.S. Citizenship & Immigration Services (USCIS) making unannounced site visits to workplaces where H-1B or L-1 workers are employed and other measures the agency uses to detect H-1B fraud. Officers make such visits to gather information about employers’ compliance with the H-1B and L-1 programs. Employers agree to site visits when signing Form I-129, “Petition for Nonimmigrant Worker,” which states that “supporting evidence submitted may be verified by USCIS through any means determined appropriate… including but not limited to, on-site compliance reviews.” That said, site visits are voluntary, and it is a best practice for clients to discuss with their immigration attorney whether they should participate in such visits.

USCIS information about site visits can be found on its website. It is important to note that, in this era of remote and hybrid work, government officers do not consider themselves limited to visiting employer premises (or the office of their client if the beneficiary is assigned to one): they may also visit H-1B or L-1 workers at their home offices. Indeed, immigration attorneys and their clients have reported such visits taking place.

Site visits are usually conducted without notice, complete in less than an hour, and consist of up to three stages: a meeting with a staff member of the employer, a look at the premises, and a meeting with the employee beneficiary of the visa petition. The purpose of the visit is to verify the employer’s existence, the validity of the information in the visa petition, and whether the foreign national is complying with the terms of the petition. The inspector may ask for documentation to compare with the information in the visa petition and may wish to address any inconsistencies discovered.

A visit to a home office may necessarily differ from a visit to the employer’s premises, but the following response is suggested as a best practice in all cases. First, in the event of a site visit, employers and/or employees should request the name, title, and contact information of the site investigator, and contact their immigration attorney immediately. Though most visits are unannounced and USCIS will not reschedule a visit to accommodate counsel, counsel is allowed to be present during a site visit and might be permitted to participate via phone. If counsel cannot attend, the employer should write a detailed description of what happened to be shared with counsel afterwards. It is advised that employers and employees not speak with government agents or contractors without a witness present.

Employers should also be aware of state requirements related to immigration worksite enforcement. A place to start, and for past information on California state requirements, is our blog post here.

© Jewell Stewart & Pratt PC 2024

USCIS adopts new fee schedule effective April 1, 2024

Updated March 28, 2024

On January 30, 2024, U.S. Citizenship & Immigration Services (USCIS) announced that it had published a final rule to adopt a new filing fee schedule. This is the first new fee schedule issued by USCIS since 2016. In its Frequently Asked Questions page USCIS has posted a New Fee Schedule Table that lists the old and new fees side by side. Changes of interest include:

• A new “asylum program fee” of $600 per I-129 petition and I-140 petition. (Nonprofits and universities are exempt from this fee.)

• An attempt to mitigate higher fees for employers by offering special discounts for small employers; for example, a reduced “asylum program fee” of $300. “Small employer” means those with 25 or fewer full-time equivalent employees.

• A $50 discount for those who choose online filing over paper filing, when online filing is offered. 

• Premium Processing Service timeframes will be counted in business days, not calendar days as before.

• Separate fees are established for Form I-129, Petition for a Nonimmigrant Worker, depending on the nonimmigrant classification sought (i.e. H-1B, TN, E-3, etc.).

• Separate filing fees will be required for Form I-131 (travel document) and Form I-765 (employment authorization) when filed with Form I-485 (adjustment of status), whether or not they are filed together.

The new fees and rules will become effective on April 1, 2024. There are increases in all application and petition types typically filed in employment-related cases, including Form I-129, petition for nonimmigrant worker; Form I-539, application for change or extension of status; Form I-140, petition for immigrant worker; Form I-485, application to register permanent resident status or to adjust status; and Form I-765, application for employment authorization document.

USCIS warns that applications and petitions postmarked or filed on or after April 1, 2024 must include these new fees. If the new fees are not included with such a submission, it will be rejected.

In addition, revised forms will also become effective on April 1, 2024, along with the new fees. USCIS says it will accept prior editions of most forms during a grace period from April 1, 2024, through June 3, 2024, as long as they are accompanied by the new fee. However, there will be no grace period for some forms, including Form I-129 and Form I-140, because they must be revised with a new fee calculation. Filers must be careful to use the correct forms in each case, as well as to include the correct filing fee.

Government processing of immigration applications and petitions is funded by these user fees and not by taxpayer dollars. These filing fee increases, which in some cases are significant, reflect USCIS's calculation of increases in the work associated with case adjudications and avoiding backlogs.

© Jewell Stewart & Pratt PC 2024

H-1B "cap" reached for FY 2024

U.S. Citizenship and Immigration Services (USCIS) announced on December 13, 2023 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2024. 

The USCIS announcement states:

USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2024.

We will send non-selection notices to registrants through their online accounts over the next few days. When we finish sending these non-selection notifications, the status for properly submitted registrations that we did not select for the FY 2024 H-1B numerical allocations will show:

·         Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

We will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2024 H-1B cap. We will continue to accept and process petitions filed to:

·         Extend the amount of time a current H-1B worker may remain in the United States;

·         Change the terms of employment for current H-1B workers;

·         Allow current H-1B workers to change employers; and

·         Allow current H-1B workers to work concurrently in additional H-1B positions.

No further selections for new H-1B petition filings will take place for FY 2024, and the next registration period for FY 2025 will take place sometime in Q1 2024.

© Jewell Stewart & Pratt PC 2023

USCIS runs second lottery on 2023 (FY 2024) H-1B registrations

On July 31, 2023, USCIS announced that it ran a second H-1B lottery on 2023 (FY 2024) registrations. The USCIS announcement states:

We now have randomly selected, from the remaining FY 2024 registrations properly submitted, a sufficient number of registrations projected as needed to reach the cap, and have notified all prospective petitioners with selected registrations from this round of selection that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2024, and only for the beneficiary named in the applicable selected registration notice.

An H-1B cap-subject petition must be filed within the period indicated on the registration selection notice; for this round of selectees, that period is August 2 to October 31, 2023.

As we noted before, in 2021 (FY 2022) a second and third selection process took place in August and November, respectively, to make unused H-1B visas available. No additional selections took place in 2022 (FY 2023). USCIS has not yet announced whether and when a third selection might take place later in 2023 (FY 2024).

© Jewell Stewart & Pratt PC 2023