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On Aug. 19, 2024, the Department of Homeland Security (DHS) implemented the Keeping Families Together process for certain noncitizen spouses and stepchildren of U.S. citizens to request parole. U.S. Citizenship and Immigration Services (USCIS) will accept requests using the new electronic Form I-131F. As background, parole is an exercise of DHS’ discretionary authority to allow certain noncitizen applicants to be present in the United States on a temporary, case-by-case basis for urgent humanitarian reasons or significant public benefit. “Parole in place” is available only for noncitizens who are present in the United States. Note that if parole is granted and if otherwise eligible, the noncitizen may have an option to apply for adjustment of status without being required to leave the United States.

A U.S. citizen’s noncitizen spouse or stepchild (under the age of 21 and unmarried as of June 17, 2024) are required to meet the certain eligibility criteria to qualify:

  • Be present in the United States without admission or parole;
  • Have been continuously physically present in the United States since at least June 17, 2024, through the date of filing the request;
  • For noncitizen spouses, have a legal marriage with a U.S. citizen on or before June 17, 2024;
  • For noncitizen stepchildren, have a noncitizen parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024, and before stepchild’s 18th birthday;
  • Have no disqualifying criminal history and otherwise not deemed to be a threat to public safety, national security, or border security; and
  • Submit biometrics and undergo required background checks and national security and public safety vetting.

Key takeaways

  • Electronic Filing Only: Starting Aug. 19, Form I-131F can only be filed online. There will be no paper form available for this process. Each requestor, including minors, must file a separate Form I-131F through their own USCIS online account. Helpful information on creating a USCIS online account is available on the How to Create a USCIS Online Account webpage.
  • Avoid Scams: USCIS warns to be cautious of scams and individuals who guarantee outcomes. USCIS reviews all applications on a case-by-cases basis. USCIS encourages individuals to seek legal advice from an attorney admitted to practice law in the United States or accredited representatives working for a Department of Justice-recognized organization. Click here for more information on scams. Some common scams include:
    • Government impersonators: Be mindful of individuals who pretend to be USCIS officials. USCIS warns that the agency never contacts via personal social media accounts.
    • Scam Websites: Make sure the information comes from the official USCIS website: uscis.gov, dhs.gov, or a website affiliated with uscis.gov which has the website address ending with “.gov”.
    • Payment by Phone or Email: USCIS never requests to transfer money to an individual or pay fees via phone or email and does not accept payment for immigration fees through third-party online payment transfer systems or gift cards.
    • Notary Public (Notarios Publicos) and unauthorized practitioners of immigration law: Only an attorney admitted to practice law in the United States or an accredited representative working for a Department of Justice-recognized organization can give legal advice and legal services related to immigration matters. Please visit the USCIS Find Legal Services webpage for the list of recognized organizations and accredited representatives.

To help individuals prepare and file a request for parole in place through the online process, USCIS published a Filing Guide for Form I-131F on the Keeping Families Together webpage.

U.S. Citizenship and Immigration Service (USCIS) has confirmed that there have been no changes to supporting documentation required for I-140 petition filings based on the new Form ETA-9089 certifications in the Foreign Labor Application Gateway (FLAG) system. The required documentation normally included to support Form I-140 immigrant petitions, such as records pertaining to the employer’s ability to pay the offered salary and the beneficiary’s qualifications, remains the same.

Certifications of the new Form ETA-9089 include two documents: (1) the completed ETA-9089 Form, including appendices with the certification validity dates and (2) the two-page Form ETA-9089 – Final Determination, titled “Permanent Employment Certification Approval” also noted as the “PERM ETA-9089 Approval Appendix” in the approval email. This document includes four sections:

  • Section A, containing information such as the case number, the petitioner’s information name, the beneficiary’s name and position title, and the Department of Labor (DOL) certifying officer’s signature;
  • Section B, containing the foreign worker’s declaration requiring a signature;  
  • Section C, containing the attorney’s or representative’s declaration and requiring a signature; and
  • Section D, the employer’s declaration, requiring a signature. 

USCIS has confirmed that the petitioner must submit the Final Determination document with all required signatures with the I-140 petition but is not required to submit the Form ETA-9089, nor the Form ETA-9141, as the DOL will transmit data contained in those documents to the USCIS system.

Schedule A certification and National Interest Waiver filings are exceptions to the above. For those I-140 petitions, the petitioner must still complete and submit the Form ETA-9089, Appendix A, and other appendices as well as the signed Final Determination document and the certified/approved Form ETA-9141 where applicable.

On July 30, 2024, U.S. Citizenship and Immigration Services (USCIS) announced it would select additional H-1B cap “lottery” registrations to reach its fiscal year (FY) 2025 numerical quota. This second selection round will include registrations that indicated eligibility for the H-1B master’s cap, as well as those registrations that indicated eligibility for the regular H-1B cap. USCIS will not conduct a second selection round for the master’s cap, as sufficient registrations were selected and received to meet the FY 2025 master’s cap numerical allocation.

Annual availability of new H-1B petitions is limited to 85,000 per FY. If USCIS receives more H-1B registrations than available, the agency conducts a random lottery and the petitioners for those selected registrations may proceed to file an H-1B petition within 90 days. Beneficiaries who have earned a U.S. master’s degree or higher may be eligible for the advanced degree exemption called the master’s cap, which sets aside 20,000 registrations for the initial lottery selection. USCIS received 470,342 eligible registrations and selected 120,603 during its FY 2025 H-1B cap registration period in March 2024 and petitions were due by June 30. Once USCIS completes its second selection round and meets the H-1B cap allocation, petitioners will have 90 days to file H-1B petitions for selected registrations.

On April 1, 2024, U.S. Citizenship and Immigration Services (USCIS) began implementing a newly overhauled fee schedule, along with substantive changes to several of its forms used to petition or apply for employment-based immigration benefits. These changes stem from the agency’s January 2024 final rule outlining the fee increases and procedural changes, which include:

  1. In a departure from the prior, simpler fee schedule, a detailed and tiered fee schedule based on various factors, including visa type, employer type, and size (number of employees).
  2. The introduction of an “asylum fee,” which now applies to most employment-based filings made on Forms I-129 or I-140 and is meant to support the agency’s efforts in improving its processing of a historic backlog of asylum applications. The asylum fee also varies depending on visa type and employer type/size, further adding to the confluence of new factors practitioners must take into account when filing a U.S. immigration benefit application or petition with USCIS.
  3. Updated filing locations and, notably, certain filings rerouted from monitored Service Centers to “Lockboxes,” which tend to take a longer time to process the filings received.
  4. New editions of many common employment-based immigration benefit forms, including Forms I-129, I-140, I-526, and I-829.

In line with the added complexity of the filing process resulting from the April 1 changes, practitioners have reported considerable delays in issuance of I-797 receipt notices, which USCIS issues to provide the petitioner/applicant and its legal representative with a case number and official confirmation of acceptance of the filing. While the specific reasons for the delays vary between cases, USCIS may need additional time to complete its intake of filings and to ensure compliance with the new requirements, given the scale of the April 1 changes. While some cases face delays, others are being “rejected” for a deficiency, sometimes resultant from erroneous observations by USCIS.

From a practical standpoint, this means that clients should be prepared for delays in receipt notice issuance, which can sometimes extend for up to and over eight weeks for certain filing types. Additionally, USCIS has generally not been responsive to inquiries placed in connection with receipt notice delays. Filers may track checks to ensure they are cashed by USCIS (an indication of case acceptance), but even filing fee check cashing has seen delays. Where available, filers may choose to submit eligible applications online for a quicker receipting process, but that may present its own set of challenges. First, only a narrow subset of forms are currently eligible for online filing. Additionally, electronic filings have only recently been implemented by USCIS and are subject to separate sets of considerations, like account access obstacles and document upload issues, among other observed, as well as unforeseeable, risks associated with the process as USCIS finetunes its electronic filing procedures and gradually expands eligible filing types.

Takeaways for Petitioners and Applicants

  1. Since some receipt notices are required for the ability to travel internationally and re-enter the United States, for instance I-751 or I-829 receipt notices, which temporarily extend conditional green card validity, it is important to take these delays into account when planning international travel. This means opting for flexible or cancelable flights or accommodations where available. As noted above, USCIS is generally not responsive to inquiries related to its receipting process and waiting for the receipt to be issued and delivered via USPS is generally the only available option.
  2. Employers filing for H-1B transfers should consider waiting for the receipt notice prior to onboarding the new employee to ensure the case is lawfully filed as of the employee’s start date.
  3. Receipts are also often utilized to demonstrate timely filing for immigration benefit extensions; filing early may help to ensure that a receipt is in hand prior to the expiration of the current I-94 or other expiring immigration benefit.

On April 8, 2024, U.S. Citizenship and Immigration Services (USCIS) published a temporary final rule (TFR) that increases the automatic extension period for eligible employment authorization document (EAD) applications from 180 days to 540 days beyond the current EAD expiration date. The TFR’s 540-day automatic extension applies to pending EAD extension applications filed on or after Oct. 27, 2023, and to EAD extension applications filed between April 8, 2024, and Sept. 30, 2025. The TFR will remain effective until Sept. 20, 2027, thereby ensuring a full 540-day auto-extension period for EAD applications filed through Sept. 30, 2025.

This TFR aligns with ongoing USCIS efforts to support employment authorized individuals’ access to work while the agency processes a record high number of pending EAD applications. According to USCIS Director Ur M. Jaddou, “Temporarily lengthening the existing automatic extension up to 540 days will avoid lapses in employment authorizations.”

Requirements

To be eligible for the 540-day auto-extension rule, applicants must:

  • Timely file Form I-765 for an EAD extension before the current EAD expires (this does not apply to certain applicants with Temporary Protected Status); and
  • Request an EAD category that is the same EAD category as their current EAD and a category that is eligible for a 540-day automatic extension (see list of eligible categories below).

Please note that for H-4, E-3S, and L-2S dependent spouses a corresponding unexpired Form I-94 is required to qualify for the auto-extension rule. Moreover, please note that the 540-day automatic extension does NOT apply to F-1 STEM OPT extensions. STEM OPT extensions remain eligible for the 180-day auto-extension.

Categories Eligible for Automatic Extensions

The following employment eligible categories are eligible for automatic extensions:

Eligibility category listed on the extension renewal applicationDescription
(a)(3)Refugee
(a)(5)Asylee
(a)(7)N-8 or N-9
(a)(8)Citizen of Micronesia, Marshall Islands, or Palau
(a)(10)Withholding of Deportation or Removal Granted
(a)(12)Temporary Protected Status (TPS) Granted
(a)(17)Spouse of principal E nonimmigrant with an unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status
(a)(18)Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status
(c)(8)Asylum Application Pending
(c)(9)Pending Adjustment of Status under Section 245 of the Act
(c)(10)Suspension of Deportation Applicants (filed before April 1, 1997)
Cancellation of Removal Applicants
Special Rule Cancellation of Removal Applicants Under NACARA
(c)(16)Creation of Record (Adjustment Based on Continuous Residence Since Jan. 1, 1972)
(c)(19)Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit.”
(c)(20)Section 210 Legalization (pending I-700)
(c)(22)Section 245A Legalization (pending I-687)
(c)(24)LIFE Legalization
(c)(26)Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status
(c)(31)VAWA Self-Petitioners

U.S. Citizenship and Immigration Services (USCIS) announced April 1, 2024, that they had received enough electronic registrations for unique beneficiaries during the initial registration period to reach the fiscal year (FY) 2025 H-1B quota of 65,0000 regular H-1B cap petitions along with 20,000 petitions allotted for the advanced degree exemption (master’s cap).

USCIS has randomly selected enough properly submitted registrations for unique beneficiaries estimated as needed to reach the H-1B cap and has notified all prospective petitioners with selected beneficiaries that they are eligible to file an H-1B cap-subject petition for such beneficiaries.

Registrants’ online accounts will now show either Submitted or Selected for each valid registration:

  • Submitted: The registration has been submitted and is eligible for selection. Even though the initial selection process has been completed, this registration remains eligible for selection in any subsequent selections in the 2025 fiscal year.
  • Selected: Selected to file an H-1B cap petition during the 90-day window of April 1, 2024, through June 30, 2024.

The USCIS announcement also provides reminders of the new form editions, filing fees, and filing locations which took effect April 1, 2024, and which are discussed in our March 29 blog post.

On Jan. 30, 2024, U.S. Citizenship and Immigration Services (USCIS) announced a final rule regarding the H-1B cap electronic registration process for fiscal year (FY) 2025. The announcement also included the initial registration period dates for the FY 2025 cap and the launch of an online filing option for H-1B petitioners. The new rule, effective March 4, 2024, is intended to “strengthen the integrity of and reduce the potential for fraud in the H-1B registration process.”

The final rule creates a beneficiary-specific H-1B cap registration selection process. Under this new process, H-1B cap registrations will be selected by beneficiary rather than by company registration, as was the case previously. This is designed to reduce the possibility of a beneficiary gaining an unfair advantage by having multiple employers submit H-1B cap registrations on their behalf. According to USCIS, the new process is aimed to ensure each beneficiary has the same chance of being selected, regardless of the number of registrations that are submitted by employers for the same beneficiary. Beginning with the FY 2025 H-1B cap registration period, employers will be required to provide valid passport information or valid travel document information for each beneficiary. The passport provided must be the one the beneficiary intends to use to enter the United States if issued an H-1B visa while abroad. Each beneficiary may only be registered under one passport or travel document. The H-1B final rule also codifies USCIS’ ability to deny or revoke H-1B petitions where the underlying registration contains a false attestation or is otherwise invalid.

Further, USCIS announced on Jan. 30, 2024, that the initial registration period for the FY 2025 H-1B cap will open at noon EST March 6, 2024, and will run through noon EST March 22, 2024. During this registration period, employers and their representatives must use a USCIS online account to register each beneficiary electronically for the selection process and pay the $10 registration fee for each beneficiary.

In addition, in the new rule, USCIS clarifies that requesting an H-1B cap employment start date after Oct. 1 of the relevant fiscal year is permissible.

USCIS also issued a fee schedule final rule to adjust certain immigration and naturalization benefit request fees for the first time since 2016. This rule with go into effect after this year’s H-1B cap registration period.

On Jan. 4, 2023, U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule that would increase immigration fees. USCIS calls these “modest” increases, but the proposed fee increases are substantial, including a 70% increase for H-1B petitions (from $460 to $780); a 201% increase for L-1 petitions (from $460 to $1,325); and a 201% increase for E and TN petitions (from $460 to $1,015). If approved, the rule also would increase fees for adjustment applicants, eliminate the “no fee” for EAD and advance parole applications, and eliminate the I-485 “discount” for children, among other changes that would impact the business community and individual immigration applicants. USCIS has not increased fees since 2016. The proposed rule and FAQs published on the USCIS website state that the increased costs are needed to increase efficiency, among other things. Due to increased pressure and pushback against the increases, the fee hike was put on hold until 2024. The proposed rule is now back under the review of The Office of Information and Regulatory Affairs and is likely to be finalized within the next 90 days. The fees would go into effect 60 days after the rule is approved.

On Oct. 20, 2023, U.S. Citizenship and Immigration Services (USCIS) released policy guidance, effective immediately, for L-1 petitions filed by a sole proprietorship. 

This guidance is reflected in the latest USCIS Policy Manual and upholds existing policy, stating that a sole proprietorship may not file an L-1 petition on behalf of its owner. The guidance clarifies that a sole proprietorship does not qualify as a distinct legal entity separate and apart from the owner if the owner and the beneficiary are the same. In this case, the filing would be considered a self-petition that is not permissible. 

The guidance further distinguishes self-petitions from a self-incorporated petitioner, defined as a corporation or a limited liability company with a single owner that is a separate and distinct legal entity from its owner. Such self-incorporated entities may petition for that owner.

In addition to the sole proprietorship clarification, the policy guidance also clarifies filing extensions of blanket L-1 petitions, stating that a failure to file a timely extension of the blanket petition does not require a waiting period before a new blanket petition can be filed. Blanket L-1 petitions allow qualifying employees who are executives, managers, and specialized knowledge professionals to apply for their L-1 visa directly at a U.S. consulate or embassy abroad instead of pre-filing with USCIS, provided that the entity they worked for abroad (employee must have worked there for more than one year in the last three years) and the entity they will work for in the United States are both listed on the blanket approval.

Please join Kate Kalmykov, Co-Chair of the Global Immigration & Compliance Practice, at an upcoming webinar Oct. 16 from 12 to 1 p.m. EDT.

On Oct. 11, 2023, USCIS provided additional guidance on their interpretation of the EB-5 laws created under the EB-5 Reform and Integrity Act of 2022 (RIA). In their clarification, EB-5 investors are now eligible for repayment of their invested capital after two years of investment. In addition, investors now have more protection from regional center terminations.

Kate will be joined by immigration attorney Ron Klasko and EB5AN managing partners Sam Silverman and Mike Schoenfeld, who will explain the recent guidance released by USCIS and discuss how they expect both EB-5 investors and regional centers to be impacted.

The panelists will discuss:

  • In-depth analysis of USCIS’s Oct. 11 guidance.
  • Relevant changes to the required investment timeframe – key takeaways for investors and regional centers.
  • Provisions for investors associated with terminated regional centers.
  • Predictions for future developments.
  • First impressions from EB5AN.

Click here to register.