United States Citizenship and Immigration Services (USCIS) released two final rules earlier this week that could have a significant impact on applicable foreign nationals.
One of the rules, entitled “Improving the H-1B Registration Selection Process and Program Integrity,” was designed to “strengthen the integrity of and reduce the potential for fraud in the H-1B registration process,” according to USCIS. Meanwhile, the other final rule will adjust the fees for some immigration and naturalization applications.
Further details about both final rules follow below.
Changes to H-1B registration selection process
USCIS published a proposed rule in mid-October related to the H-1B visa program. The final rule released in late January codifies “some provisions” included in that proposal, specifically related to the H-1B cap lottery.
The new final rule will take effect for FY2025 and specifies that each cap-subject beneficiary will only be registered for the lottery once, regardless of how many registrations are submitted in their name. This change will ensure that each beneficiary has the same odds of selection and prevent organizations from misusing the registration system by filing multiple registrations for a single beneficiary. Every H-1B applicant will need to submit a valid passport or travel document information with their initial registration.
Further, the new rule allows USCIS the ability to deny or revoke H-1B petitions where the “underlying registration contained a false attestation or was otherwise invalid.” Under the new rule, USCIS can also rescind or reject an H-1B petition if it finds the registration fee was “declined, not reconciled, disputed or otherwise invalid.”
The new rule will also permit some filings “with requested start dates that are after Oct. 1 of the relevant fiscal year, consistent with current policy.”
Not all of the policies from the initial proposed rule released in October were included in the final rule published in late January. USCIS noted that it “intends to publish a separate final rule to address the remaining provisions” from the proposal at a later date. The attorneys at Garfinkel Immigration Law Firm will notify clients if and when that rule is released.
The initial registration period for the H-1B cap lottery will be open from noon ET on March 6 until noon ET on March 22. As in previous years, employers are required to register each potential H-1B recipient by completing an online form during the initial enrollment period. When demand for an H-1B visa exceeds the cap (which is usually the case), then USCIS randomly selects enough potential H-1B recipients to reach the cap using a computer-generated lottery.
If an employee’s registration form is selected through the lottery, then employers prepare and file the entire H-1B petition for the selected registrant(s).
Fee adjustments for some immigration and naturalization applications
USCIS also published in late January a rule that finalized fee changes for certain immigration and naturalization applications. The rule, which takes effect on April 1, significantly increases the fees associated with some employment-based nonimmigrant visa petitions and many other applications.
The new final rule differentiates the fee for each specific visa, rather than a uniformed cost for the form itself. For example, under the previous fee schedule, the cost of filing a Form I-129 was $460. But, beginning April 1, there will be different fees for the Form I-129, depending on the nonimmigrant classification of the beneficiary. Those costs, for example, are:
- Form I-129, H-1B Nonimmigrant: $780 (70% increase)
- Form I-129, H-2B: Named Beneficiaries $1,080 (135% increase), Unnamed Beneficiaries $580 (26% increase)
- Form I-129, L Nonimmigrant: $1,385 (201% increase)
- Form I-129, O Nonimmigrant: $1,055 (129% increase)
The Form I-485, Application to Register Permanent Residence or Adjust Status will also increase from $1,140 to $1,440 (26%).
Further, the cost of an initial H-1B registration will rise from $10 to $215 (2,050%). However, that fee increase will not be applicable for FY2025, since the effective date of the final rule is after the conclusion of the initial H-1B cap registration, USCIS noted.
Meanwhile, some examples of application fee decreases are:
- N-400 Application for Naturalization, online filing (with biometric services): $710 (-2%)
- I-131 Refugee Travel Document for an individual age 16 or older (with biometric services): $165 (-25%)
Additionally, the final rule creates a new $600 Asylum Program Fee that most employers must pay if they file a Form I-129, Petition for a Nonimmigrant Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker or Form I-140, Immigrant Petition for Alien Worker. Nonprofit organizations are exempt from the Asylum Program Fee, while companies with 25 or less full-time employees will receive a 50-percent reduction to $300. These nonprofits and “small employers” will also qualify for “special fee discounts” in the new final rule.
The full fee schedule list under the new final rule can be found here.
The new rule released by USCIS could face legal challenges in federal court. Garfinkel Immigration Law Firm is monitoring the situation closely and will alert clients as circumstances evolve. Please do not hesitate to contact the Firm’s attorneys with any questions, or to receive more information about the fee changes.
Other H-1B updates
USCIS also unveiled last month a set of “customer experience improvements” for H-1B applicants.
In mid-February, USCIS will debut “organizational accounts” for fiscal year (FY) 2025 H-1B cap filings as well as cap-exempt petitions. Multiple members of an organization, including both business and legal representatives, can work together inside the organizational account portal to complete the H-1B registration; the Form I-129, Petition for a Nonimmigrant Worker and the associated Form I-907, Request for Premium Processing Service.
The Form I-129, H-1B petitions and the Form I-907 premium processing request for the Form I-129 H-1B petition can be filed online via the organizational account.