Search results for: i-539

On Sept. 25, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that effective Oct. 1, 2023, applicants will no longer have to pay the $85 biometric services fee when filing Form I-539, the Application to Extend or Change Nonimmigrant Status. This exemption applies to all applicants whose applications are postmarked on or after Oct. 1, 2023, including those seeking extensions of stay or changes of status to H-4, L-2, E-1, E-2, or E-3 nonimmigrant categories.

Avoiding Application Rejection

If you mistakenly submit the biometric services fee separately from the Form I-539 fee, USCIS will return the biometric services fee and process your Form I-539. But, if the biometric services fee is combined with the Form I-539 filing fee, the entire application will be rejected. If a credit card payment combines both fees, USCIS will accept the application and only charge the application fee. If your application is rejected, you will need to timely refile the application prior to the expiration of your current nonimmigrant status.

Appointments

For applications filed before Oct. 1, 2023, certain filers may still be scheduled for an Application Support Center appointment for biometric services. However, after Oct. 1, most applicants will not be scheduled for biometric services appointments unless determined necessary by USCIS.

Background

USCIS first introduced a temporary suspension of biometric requirements for specific Form I-539 applicants in May 2021, providing relief from additional fees and appointments. This suspension was extended through September 2023, acknowledging the need for a streamlined immigration process, especially during the COVID-19 pandemic. USCIS had been cueing this change since issuing its Fiscal Year 2022 Progress Report. In the report, USCIS made a commitment for FY 2023 to eliminate the need for Form I-539 applicants to submit biometrics, in line with the goal of improving efficiency and addressing backlogs.

There is no premium processing available for any nonimmigrant status requested using a stand-alone Form I-539. Until recently, however, the USCIS would traditionally grant courtesy premium processing for I-539 applications (H-4, L-2, E-2 or O-3 applicants) that were filed concurrently with the principal’s I-129 petition if the I-129 was filed using premium processing.

The USCIS will no longer grant courtesy premium processing for Form I-539 applications. The I-129 and the I-539 applications will no longer be moving along in lockstep with the principal’s petition and are now being processed separately by the Service. This is the result of a new Form I-539 that USCIS released in March 2019, and the new biometrics requirement for each applicant and co-applicant. The USCIS is expanding its use of biometrics for the purposes of identity verification and records management. With the release of this new version, USCIS also published a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. Starting on March 22, 2019, USCIS began accepting only the revised Form I-539 and I-539A with an edition date of 2/4/2019. The revised Form I-539 and I-539A also mandated the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A. Parents or guardians are able to sign the form for children under the age of 21 or who cannot sign due to health reasons.
  • Every applicant and co-applicant (except certain A, G, and NATO nonimmigrants) must now pay an $85 biometric services fee.
  • Every applicant and co-applicant must now have their biometrics taken before the I-539 application can be adjudicated. The appointments are scheduled at the nearest Application Support Center (ASC) closest to the main applicant’s address.

The change in the process happens after the I-539 application form is filed. Following filing, each applicant and co-applicant will receive a biometrics appointment to appear at an ASC to have their fingerprints, photograph, and/or signature collected. USCIS will automatically schedule the biometrics appointment, but this can generally take three weeks or more following the filing of the application to schedule. With the addition of the new biometrics requirement for I-539 applicants, this delay will no longer afford USCIS the ability to grant the I-539 within the same 15-day period for I-129 petitions filed via premium processing, and changes the filing and adjudication requirements significantly. USCIS confirmed during a stakeholder teleconference on March 1, 2019, that it can no longer continue its longstanding courtesy practice of adjudicating the I-539 along with a concurrently filed I-129 petition filed via premium processing.

All I-539 applications are now subject to the standard processing times for Forms I-539, which are taking substantially longer to adjudicate than the principal’s I-129 petition. Processing times are available on the USCIS’ website at: https://egov.uscis.gov/processing-times/. Such lengthy delays can potentially have an impact on the ability for I-539 applicants to renew their driver’s licenses. As an alternative to filing the I-539, dependents may choose to apply for a derivative nonimmigrant visa at a U.S. Consulate or Embassy outside of the United States once the principal’s I-129 petition has been adjudicated. Please consult your GT attorney with specific questions regarding extending dependents’ nonimmigrant status.

For more on Form I-539, click here.

*Not admitted to the practice of law.

On Feb. 11, 2019, the United States Citizenship and Immigration Services (USCIS) announced it will revise Form I-539, Application to Extend/Change Nonimmigrant Status, and publish a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. Currently, Form I-539 is used by certain nonimmigrants extending their stay or changing to another nonimmigrant status; CNMI residents applying for an initial grant of status; F and M nonimmigrants applying for reinstatement; and persons seeking V nonimmigrant status or an extension of stay as a V nonimmigrant. Form I-539 is nine pages, including Supplement A, used to include spouses or unmarried children under 21 years of age as co-applicants.

  • Revised Form I-539 will be published on the USCIS website on March 11, 2019, and that will be its effective date. Historically, prior Form revisions have been accompanied by a grace period where USCIS would continue to accept older editions of the Forms for a set period of time for implementation.  In its announcement, however, the USCIS indicated that as of March 11, 2019, it will only accept a form with an edition date of  02/04/19; it will reject any Form I-539 with an edition date of 12/23/16 or earlier.
  • Form I-539A will also be published on USCIS website on March 11, 2019. The form will replace Supplement A to Form I-539. Co-applicants must submit and sign separate Forms I-539A, one for every co-applicant.
  • Regardless of the age, every applicant and co-applicant must pay a biometrics fee of $85 and will be scheduled for a biometric services appointment. Biometrics are collected at Application Support Centers (ASCs) and generally include digital fingerprints, photographs, and/or signatures. Pursuant to 8 CFR 103.2 (b)(9), USCIS has the general authority to require and collect biometrics (fingerprints, photograph, and/or digital signature) from any applicant, petitioner, sponsor, beneficiary, or other individual residing in the United States seeking immigration and naturalization benefits. This authority has been used primarily for immigrant visa and naturalization applications to allow USCIS to run required background and security checks, and not for nonimmigrant applications.

This unexpected announcement will lead to even longer USCIS processing times for nonimmigrant visa applications (currently taking six to nine months), additional processing fees, and further strain on local ASCs. Finally, given the timing and lack of grace period, this change will impact dependents of some of the H-1B FY2020 Cap Subject beneficiaries and their filings this year.

For more information on nonimmigrant visas, click here.

On Jan. 9, 2026, U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) will publish a final rule increasing USCIS fees for premium processing.

Premium processing provides expedited processing for certain case types for an additional government filing fee.

In the announcement, USCIS stated that the premium process fee increase reflects the amount of inflation from June 2023 through June 2025. The USCIS Stabilization Act established the authority for DHS to adjust premium processing fees every two years to account for inflation. USCIS stated that the government will use the revenue generated by the fee increase to provide premium processing services, make improvements to adjudication processes, respond to adjudication demands, including processing backlogs, and otherwise fund USCIS adjudication and naturalization services. USCIS last adjusted premium processing in February 2024.

Effective March 1, 2026, requests for premium processing (Form I-907) must include the following updated fees:

FormPrevious FeeNew Fee
Form I-129, Petition for a Nonimmigrant Worker, H-2B or R-1 nonimmigrant status$1,685$1,780
Form I-129, Petition for a Nonimmigrant Worker, all other available Form I-129 classifications: E-1
E-2
E-3
H-1B
H-3
L-1A
L-1B
LZ
O-1
O-2
P-1
P-1S
P-2
P-2S
P-3
P-3S
Q-1
TN-1
TN-2		$2,805$2,965
Form I-140, Immigrant Petition for Alien Worker, employment-based classifications: E11
E12
E13
E21 (NIW and non-NIW)
E31
E32
EW3		$2,805$2,965
Form I-539, Application to Extend/Change Nonimmigrant Status, requesting: F-1
F-2
J-1
J-2
M-1
M-2		$1,965$2,075
Form I-765, Application for Employment Authorization, for certain eligible applications (OPT and STEM-OPT Classifications)$1,685$1,780

The new fees will take effect for filings postmarked on or after March 1, 2026.

  1. USCIS Filing Fee Increase and Premium Processing Expansion – In 2023, USCIS issued a proposed rule to increase the required filing fees for many applications. The proposed increases for employment-based immigration benefits are significant, and if the final rule takes effect, employers will incur increased expenses to file common case types such as H-1B registrations, H-1B/ L-1/ E/ TN petitions, I-140 petitions, and I-485 applications. (The final rule on USCIS’s fee schedule is expected in April 2024).

    Although a specific timeline has not yet been provided, USCIS is expected to announce further expansion of its premium processing service in 2024. USCIS continued expanding premium processing service in 2023 to include Form I-140 EB-1C multinational executive and manager classification and EB-2 National Interest Waiver classification, certain F-1 students seeking optional Practical Training (OPT) andscience, technology, engineering, and mathematics (STEM) OPT extensions, and certain applicants requesting a change of status on Form I-539 to F, M, or J status.
  2. Ongoing Focus on Immigration Compliance – In 2023, significant immigration compliance-related changes took effect. Related to Form I-9, changes included the sunset of the Department of Homeland Security’s temporary COVID-related Form I-9 flexibilities, the new mandatory Form I-9 08/01/2023 edition, and, for qualifying E-Verify employers, an alternative remote I-9 document inspection procedure.

    In an evolving landscape, more and more states mandated enrollment in E-Verify in 2023, which is operated by USCIS and largely remains a voluntary program. Similarly, in 2023, an increasing number of states have passed laws on pay transparency which can impact the U.S. Department of Labor’s PERM labor certification process. Throughout 2024, the changes introduced in 2023 and ongoing interplay between state and federal requirements will create a challenging immigration enforcement environment and will place employers at risk for non-compliance.

    The Department of Homeland Security and Department of Labor are expected to continue their focus on immigration compliance and, similarly, in 2024 the U.S. Department of Justice’s Immigrant and Employee Rights Section (IER) may continue its enforcements, settlements, and lawsuits related to immigration-related discrimination. The post-pandemic workforce has reshaped traditional employment paradigms, making it crucial for businesses to reassess internal immigration and compliance policies, conduct regular audits to make corrections and train designated personnel, maintain required records such as public access files, and define a protocol for an unannounced government audit or site visit. In 2024, employers should remain informed about evolving immigration laws and policy changes to ensure compliance with immigration regulations.
  3. Department of Labor (DOL) Processing and Regulatory Agenda – On June 1, 2023, the Department of Labor (DOL) transitioned to a new online Permanent Labor Certification Program (PERM) application filing system and a new PERM Application Form ETA 9089.

    The DOL indicated it would not begin processing PERM applications filed through the new system until it finalized processing of cases pending in the legacy PERM portal. In 2024, the DOL will begin processing PERMs filed on the new form through the new system, which may result in an increased rate of PERM audits. As a result of the 2024 DOL transition, PERM processing times are not expected to decrease.

    The DOL’s regulatory agenda in 2024 includes a proposed rule to establish a new wage methodology to set prevailing wage rates for the H-1B, H-1B1, E-3, and PERM programs. A final prevailing wage rule had been scheduled to take effect in 2022 but was then vacated in court, and publication of the new proposed rule, first scheduled for late 2023, is now expected in June 2024.
  4. Updates Related to the H-1B Visa Program: Modernization and Domestic Visa Renewals – The Department of Homeland Security (DHS) continues to pursue a proposed rule to modernize the H-1B program. The regulation was published in the Federal Register in late October of 2023 and is followed by a 60-day public comment period. Under the rulemaking process, USCIS then considers public comments and finalizes the rule’s provisions through one or more final rules. The rule will not take effect until it advances through review, which usually takes several months. DHS indicated that it is considering separating out certain provisions, such as proposed changes to the H-1B registration, so some provisions may be finalized sooner in an effort to implement them for the upcoming FY2025 H-1B cap season beginning in the Spring of 2024.

    In early 2023, the U.S. Department of State (DOS) announced its plans to test a program that would permit visa holders to renew their visa stamps from within the United States. On December 21, 2023, the DOS published a Federal Register notice announcing that the stateside visa renewal pilot will begin on January 29, 2024, and end on April 1, 2024.
  5. Proposed 2024 Regulatory Agenda Related to Nonimmigrant Workers and Green Card (Adjustment of Status and Immigrant Visas) Process Changes – The Department of Homeland Security’s 2024 regulatory agenda reflects plans to publish a proposal in the Fall of 2024 to amend its regulations related to certain nonimmigrant workers. Proposed changes include updates to employment authorization rules for dependent spouses, increasing flexibilities for nonimmigrant workers including for those who resign or are terminated from employment, and additional updates related to modernizing Employment Authorization Documents.

    The Department of Homeland Security plans to publish a proposed rule in March 2024 to make changes to the process for adjustment of status to permanent residence. The proposed rule is anticipated to address the transfer of the underlying basis of an application to adjust status, reduce processing times and the potential for visa retrogression, and promote the efficient use of immediately available immigrant visas.

    The U.S. Department of State’s regulatory agenda for 2023 included a final rule that would permit a waiver of the general requirement for immigrant visa applicants to appear before a consular officer to be interviewed and to execute their application in person at a U.S. Consulate abroad. Details of the rule were expected in late 2023.

    GT will continue to monitor the regulatory agenda and related developments and will publish updates on https://www.gtlaw-insidebusinessimmigration.com/ as regulations move through the rulemaking process.

About the Authors:

Courtney B. Noce is Co-Chair of Greenberg Traurig, LLP’s Immigration and Compliance Practice. Noce represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging from permanent residence (PERM, National Interest Waivers, Extraordinary Ability/Outstanding Researcher, Multi-National Managers, among others) to nonimmigrant visa categories (H-1B, H-3, J-1, L-1A/B, O-1, TN).

Kate Kalmykov is Co-Chair of Greenberg Traurig, LLP’s Immigration and Compliance Practice. Kalmykov focuses her practice on business immigration and compliance. She works with employers of all sizes across a variety of industries in understanding and complying with the immigration laws relating to the hiring and retention of foreign talent. Specifically, her practice focuses on supporting clients and advising them on temporary and permanent residency immigration options for multi-national executive, business, scientific, and information technology personnel.

Miriam C. Thompson is an associate of Greenberg Traurig, LLP’s Immigration and Compliance Practice. Thompson focuses her practice on business immigration and immigration-related compliance issues, assisting employers with hiring and retaining foreign nationals in various industries and business sectors, including manufacturing, engineering, technology, medical, logistics, and academia. She has experience advising employers on all aspects of business immigration, including nonimmigrant visa categories (B, E, F-1, H-1B, J-1, L-1 A/B, O-1, TN), managing a multinational workforce, and permanent residence.

U.S. Citizenship & Immigration Services (USCIS) announced the expansion of premium processing for certain applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, requesting a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status.

The expansion of premium processing for these categories will occur in phases. Starting June 13, 2023, USCIS will accept premium processing requests (Form I-907, filed via paper form or online) for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, who have a pending Form I-539. Beginning June 26, USCIS will accept premium processing requests (Form I-907, filed via paper form or online) for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, when filed together with Form I-539.

Any premium processing requests to change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, for a pending Form I-539 made before June 13 will be rejected. Similarly, any premium processing requests to change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, filed together with Form I-539 made before June 26 will be rejected.

Keep in mind that all applicants included on Form I-539 must submit their biometrics before premium processing can begin. The time limit for premium processing will not start until all applicants included on the Form I-539 submit their biometrics for these specific categories, even if an applicant’s Form I-907 and accompanying fees were accepted by USCIS.

USCIS is working step-by-step to address the backlogs and processing-time issues.

FOR THE WEEK OF APRIL 28, 2023

Legislative Updates

  • House Immigration Border Bills Move Forward: The House Judiciary Committee’s Subcommittee on Immigration Integrity, Security, and Enforcement marked up H.R. 2640, the Border Security and Enforcement Act of 2023. This bill focuses on border and asylum reform as well as unauthorized immigration. A separate bill, the Border Reinforcement Act of 2023 (H.R. 2794), was reported favorably out of the House Committee on Homeland Security on April 27, 2023.
  • Florida is Poised to Mandate Use of E-Verify: The Florida state legislature is expected to pass a sweeping immigration bill next week. The bills HB 1617 and SB 1718 would, among other things, require private employers of more than 25 employees to use E-Verify beginning July 1, 2023.

State Department Suspends Visa Services in Sudan

  • As of April 22, 2023, the U.S. Embassy in Khartoum suspended its operations, and all immigrant and diversity visa interviews are canceled until further notice. Nonimmigrant visa applicants may apply in any country in which they are physically present and where there are appointments available.

USCIS Says It Found Companies Cheating During H-1B Lottery Selection Process

  • The Wall Street Journal is reporting that USCIS is issuing notices today to employers that it says entered the same applicants into the lottery selection process multiple times.
  • USCIS did not name the companies, saying they are under investigation and have been referred to federal law enforcement agencies for potential criminal prosecution.
  • USCIS noted on its H-1B electronic registration site that “the large number of eligible registrations for beneficiaries with multiple eligible registrations – much larger than in previous years – has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary.”
  • There were 781,000 entries into the lottery selection process this year. Last year, there were 478,000 entries.

Biden Administration to Open Processing Centers in Colombia and Guatemala

  • The processing centers will be operated by international organizations partnering with the U.S. to screen applicants for legal ways to immigrate to the U.S.
  • The centers are part of the government’s effort to reduce illegal immigration at the U.S.-Mexico border.

FOR THE WEEK OF APRIL 17, 2023

Legislative Update

  • On April 18, Sen. Bob Menendez (D-NJ) introduced his outline for border security and immigration reform, which has four pillars: create new and expand existing legal pathways to immigrate to the United States; increase resources at the border to process asylum seekers and carry out removal; expand humanitarian assistance to countries in Latin America; and elevate efforts to counter human trafficking and smuggling.
  • The House continued to mark up its Border Bill in the House Judiciary Committee, but no bill has come out of committee yet.

USCIS Extends Temporary Suspension of Biometrics Requirement for Certain I-539 Applicants

  • USCIS continued its suspension of the biometrics requirement for those filing I-539 applications for extensions of or change of status to H-4, L-2 or E status.
  • The suspension is extended from May 17, 2023, to Sept. 30, 2023. USCIS also said it plans to permanently exempt all I-539 applicants from the biometrics requirement “in the coming months.”

General Motors’ Export Compliance Assessments Trigger Investigation, Settlement with IER

  • DOJ reached a settlement with General Motors regarding its allegations that GM unlawfully discriminated against non-U.S. citizens with its export compliance assessment processes.
  • The DOJ’s Civil Rights Division, Immigrant and Employee Rights Section (IER) investigation determined that GM unnecessarily required lawful permanent residents to provide unexpired foreign passports as a condition of employment. It also found that GM combined its I-9 and export compliance assessment processes, resulting in GM requiring newly hired non-U.S. citizens to provide specific and unnecessary documents to prove their permission to work.
  • The settlement is a good reminder that adherence to export control laws and regulations do not exempt employers from anti-discrimination requirements. It’s also important to ensure that an employer does not forget the anti-discrimination provisions in its pursuit of efficiency in the onboarding process.
  • IER reminds employers of their obligations in the context of export control laws and regulations with this worksheet.

FOR THE WEEK OF APRIL 14, 2023

USCIS Provides Information About Options for Terminated Nonimmigrant Workers

  • USCIS posted options for nonimmigrant workers whose employment is terminated, either voluntarily or involuntarily.
  • In general, where eligible, terminated nonimmigrant workers may (1) file an application for a change of nonimmigrant status; (2) file an application for adjustment of status; (3) file an application for a “compelling circumstances” employment authorization document; or (4) be the beneficiary of a nonfrivolous petition to change employer.

Customs and Border Protection’s Stampless Entry Program

  • As part of its Simplified Arrival process, CBP continues to roll out its Stampless Entry pilot program to eliminate ink stamps in passports at entry.
  • More than ever, it’s very important for foreign nationals to download their I-94s at cbp.gov/i94 to ensure they are admitted correctly.

FOR THE WEEK OF APRIL 6, 2023

Legislative Update

  • Sens. Dick Durbin and Chuck Grassley have reintroduced their H-1B and L-1 Visa Reform Bill. This bill has been introduced with many iterations since 2007. We don’t anticipate its passage this year.
  • Lou Correa and Dan Goldman (D-N.Y.) request that the appropriations committee increase funding to $400 million to support USCIS processing and the reduction of backlogs. They also requested an increase of $425.9 million to fund the asylum processing rule and $100 million to be added for USCIS citizenship grants for groups that help prepare permanent residents for naturalization.

Compliance Consideration: Termination of E-3 and H-1B1 Visa Holders Should Include Notifying USCIS

  • In addition to withdrawing the LCA, The Wage and Hour Division of the Dept of Labor requires three steps for ending an employer’s wage obligations pursuant to a certified LCA: (1) employment relationship has been terminated; (2) petition should be cancelled; and (3) employee has been offered payment for transportation home.
  • Even though E-3 and H-1B1 workers do not have petition filings with USCIS, it’s important to notify USCIS of the end of the employment relationship.

District Court Ends Challenge to H-4 Work Permits

  • A federal judge granted the Dept of Homeland Security’s motion for summary judgment and ruled in favor of the government’s authority to grant work authorization to certain visa types.

I-9 Reminder: In-person Review of Documents Still Required

  • Virtual I-9 document review has yet to become a rule. DHS published a proposed rule in 2022 indicating a willingness to move in this direction. However, at this time, employers are still required to review I-9 documents in person, even in in the remote employment context.

As a result of a class action lawsuit, U.S. Citizenship and Immigration Services has entered into a settlement agreement to “bundle” an application to extend or change H-4 or L-2 status and, if applicable, an employment authorization document (EAD) application, if the application is filed with the principal’s corresponding H-1B or L-1 petition.

As background: Form I-539 is the application to extend/change nonimmigrant temporary status, and Form I-765 is the application for employment authorization.

In recent years, USCIS has taken as long as two years to adjudicate the Form I-539 and Form I-765 when the agency began “decoupling” H-4, L-2, and EAD applications from principal H-1B or L-1 applications. This delay has impacted many foreign employees looking to work and companies looking to hire or retain them. 

Under this new settlement, USCIS will return to its historical process of adjudicating these forms simultaneously with the principal’s Form I-129 petition when the forms are concurrently filed. The bundling will apply to both standard and premium processing filings. However, if the forms are filed separately, USCIS will not bundle the adjudication. The terms of the agreement will go into effect Jan. 25, 2023, and will remain in force for at least two years.

It remains unclear how USCIS will adjudicate pending I-539 or I-765 applications that were filed concurrently with Form I-129, prior to Jan. 25, 2023.

Those with questions about the settlement should work with experienced immigration counsel.

On Jan. 12, 2023, USCIS announced its plan to expand premium processing service availability for certain immigrant and non-immigrant benefits in 2023. Beginning Jan. 30, 2023, USCIS will be implementing the final phase of the premium processing expansion for Form I-140 EB-1C multinational executive classification and EB-2 National Interest Waiver (NIW) classification. This new expansion phase will apply to initial petitions filed after Jan. 30, 2023, as well as to all previously filed EB-1C and EB-2 NIW petitions currently pending at USCIS. Petitioners who wish to request premium processing service for new or pending EB-1C or EB-2 NIW petitions must file Form I-907, Request for Premium Processing Service with the requisite filing fee of $2,500.

In addition, USCIS will expand the premium processing service for F-1 students seeking OPT or STEM OPT extensions. USCIS has announced that in March 2023, it will expand premium processing service to certain F-1 students applying for OPT and F-1 students applying for STEM OPT extensions who have a pending Form I-765 (Application for EAD) at USCIS. In April 2023, USCIS will expand premium processing to all F-1 students seeking OPT and F-1 students applying for STEM OPT extensions who are filing an initial Form I-765. USCIS will provide specific dates for each expansion in February 2023.

USCIS has further announced that it will expand premium processing for certain Form I-539 applications including F-1 and J-1. USCIS anticipates that it will expand premium processing for certain F-1 and J-1 applicants with pending Form I-539 at USCIS in May 2023. USCIS also anticipates that it will expand premium processing for certain F-1 and J-1 applicants filing their first Form I-539 applications in June 2023. USCIS has not provided specific dates for each development and will make additional announcements when it is ready to implement these premium processing expansion phases. 

USCIS’s expansion of premium processing service to additional form types is part of its effort to increase efficiency and reduce burdens to the overall U.S. immigration system. USCIS will adhere to the legislative requirement that the expansion of premium processing service does not result in an increase in processing times for immigration benefit requests not eligible for premium processing or filed under regular processing.

^Law Clerk/JD. Not admitted to the practice of law.

On Jan. 4, 2023, U.S. Citizenship and Immigration Services (USCIS) issued a Proposed Rule that would increase the filing fees required for many applications, with the majority being employment-based applications. As the United States may enter a recession in the coming months, this announcement may raise concerns among employers already anticipating challenges in 2023. Among the most notable and significant increases are:

  • the H-1B lottery registration fee increasing from $10 to $215,
  • the intracompany transfer I-129 L filing fee more than tripling from $460 to $1,385,
  • the specialized knowledge worker I-129 H-1 filing fee increasing from $460 to $780,
  • the seasonal worker I-129 H-2B filing fee more than doubling from $460 to $1,080,
  • the extraordinary ability I-129 O filing fee also more than doubling from $460 to $1,055,
  • the nonimmigrant investor I-526 filing fee rising from $3,675 to $11,160,
  • the immigrant removal of conditions of investor I-829 filing fee increasing from $3,835 to $9,525, and
  • the I-485 Adjustment of Status (green card application) filed with the I-765 Employment Authorization Document and I-131 Advance Parole (travel authorization) filing fee increasing from $1,225 to $2,820. 

The proposed fee increases would also impact individuals already facing an immigration system which requires them to endure months, and often years, of waiting for applications to be processed. Individuals applying for immigration benefits for themselves, or their loved ones, could see the following:

  • the green card for a family member I-130 filing fee raising from $535 to $820,
  • the fiancé(e) I-129 application filing fee growing from $535 to $720,
  • the petition to remove conditions from green card status I-751 filing fee climbing from $595 to $1,195,
  • the stand-alone Employment Authorization Document I-765 filing fee increasing from $410 to $650 for paper filings,
  • the request to change or extend nonimmigrant status (without biometrics) I-539 filing fee increasing from $370 to $620 for paper filings, and
  • the genealogy records request online filing fee more than tripling from $65 to $240.

If the proposed rule goes into effect, USCIS anticipates it will receive an additional $5.2 billion per year during FY2022 and 2023. This amount does not include income from premium processing filing fees that will remain $2,500 per application. With these additional funds, USCIS states it would increase staff, cover increased contract costs, maintain and refresh its technology, improve its customer service, and spend more on its asylum and refugee programs.

Because USCIS’ budget is derived from its receipt of filing fees from immigration applications, not on funding from the federal government, USCIS claims the fee increases are necessary to address a lack of fee increases since 2016 as well as a temporary reduction in the filing of applications during the pandemic. The reductions in filings resulted in a loss of 40% of USCIS anticipated income. 

In addition to significantly increasing filing fees as the country is already feeling the effects of increased costs in many other areas, the proposed rule would also impact USCIS processing time of applications. If the proposed rule is adopted, USCIS would extend the time it has to process applications filed under the premium processing program from 15 calendar days to 15 business days. This change would require applicants to wait roughly one-third longer for the processing of applications for which they pay an extra $2,500 filing fee. This may create challenges considering that in many instances employers must file using the premium processing program to avoid lengthy normal processing times which would otherwise prohibit them from achieving business goals.

The proposed rule would also incorporate the currently separate biometrics fees into the main filing fee. While this would provide an administrative relief for applicants, it also guarantees USCIS a receipt of funds for biometrics services it often waives applicants from completing. In other instances, the proposed rule would re-implement administrative and financial obligations on applicants by requiring additional filing fees for I-765 (employment authorization) and I-131 (travel authorization) applications accompanying an I-485 (adjustment of status/green card) application.

Also noteworthy, the proposed rule would encourage online filings by reducing the filing fee by $10 to $100 for some online applicants. This change would support USCIS’ at least decade old commitment to electronic filings. However, without an expansion of the applications that can be filed electronically, it would only benefit a small minority of applicants.

It remains unclear when USCIS intends to implement the final rule after the 60-day comment period has concluded. If USCIS attempts to quickly implement the final rule, employers participating in the H-1B registration this year would likely be among the first to feel the impact of the fee increases and it could have consequences on the H-1B visa applicant pool. USCIS will host a public engagement session to discuss the proposed rule on Jan. 11, 2023.