Immigration Fees Final Rule Expected in April

The Biden administration in 2024 intends to release its overdue plan to increase immigration fees, update the H-2A and H-2B seasonal worker programs and initiate the highly anticipated domestic visa renewal pilot for H-1B workers, according to the latest regulatory agenda.

The following article outlines the regulatory changes the Biden administration is planning for employment-based visa programs in 2024. Note however that agency agendas feature goals that are often postponed and sometimes never come to fruition. Add to that the intensifying focus of an election year and the knowledge that any regulatory plans left unfinished could be abandoned—and regulations issued too late in the year could be reversed—if Republicans win the White House next year.

Fees Increase

U.S. Citizenship and Immigration Services (USCIS) has scheduled April 2024 to issue its updated immigration filing fees.

In January, the agency proposed significant filing fee increases for multiple employment-based immigration petitions and applications, in order to “recover its operating costs, reestablish and maintain timely case processing, and prevent the accumulation of future case backlogs.”

USCIS, which is almost entirely fee-funded, last adjusted its fees in December 2016. The latest proposal would represent a weighted average increase of 40 percent.

USCIS is proposing different fees for different visa classifications. The current base fee of $460 covers all temporary-worker visa petitions using Form I-129—used by employers to petition for guest workers under H-1B, H-2A, H-2B, L-1, O-1 and TN visa classifications. The new filing fees would be:

• H-1B visas—$780
• L-1 visas—$1,385
• O-1 visas— $1,055
• TN visas—$1,015
• H-2A visas—up to $1,090
• H-2B visas—up to $1,080

In addition to the filing fee increases, USCIS is also proposing a new $600 asylum program fee to be paid by all employers sponsoring temporary workers or workers for permanent residence visas. The fee would apply each time an employer used Form I-129 for an initial petition, change of status, or extension of stay. This additional fee is intended to be used to help fund the administration of the asylum program.

Another significant increase in fees would impact those seeking to adjust their status from temporary to permanent. Filing forms I-485 (adjustment of status), I-131 (for advance parole) and I-765 for a work permit (unless done electronically), would increase significantly.

Currently, individuals pay a filing fee of $1,225, which covers the adjustment application as well as applications for employment authorization and travel documents and any future renewals for those documents while the adjustment case is pending. USCIS is proposing separate fees for the three forms, adding up to $2,820, not including each subsequent employment authorization and advance parole application, until the adjustment of status is adjudicated.

USCIS Director Ur Jaddou said that the fee increases are one of several steps being taken to strengthen the fiscal health of the agency.

SHRM submitted public comment on the proposal, stating that USCIS should explore more efficient ways to improve services and save costs instead of raising filing fees so drastically.

“SHRM is supportive of a fee schedule that enables USCIS to adjudicate requested benefits consistently, completed within a reasonable time frame, and in accordance with the law,” said Emily Dickens, SHRM chief of staff and head of public affairs. “However, we are concerned with the proposed fee schedule’s substantial increase in fees for several benefits, particularly for employment-based benefits. SHRM is concerned the proposed increases are not proportionate to the cost of processing these cases.”

USCIS also plans to amend its regulations for work permits next year, including addressing employment authorization for spouses of temporary visa holders and greater flexibility for foreign workers who lose their jobs. That proposed rule is scheduled for October 2024.

Prevailing Wage Plans Dropped

The most significant news from the U.S. Department of Labor (DOL) is not a new rule, but the absence of one. It appears that three years after first initiating rulemaking to increase prevailing wages for the H-1B and PERM programs, the DOL has removed this initiative from its current regulatory agenda.

The DOL reconfirmed its plans to update the regulations governing the H-2A and H-2B temporary seasonal worker programs. A proposed rule to better protect farm workers on H-2A visas against retaliation, make foreign labor recruitment more transparent and enhance enforcement is scheduled for April 2024.

The DOL intends to publish a proposed rule in October 2024 updating the prevailing wage rules, temporary labor certification process, and enforcement of employer obligations in the H-2B visa program.

The DOL will also be considering an update to the Schedule A list of designated occupations.

“Schedule A is a list of occupations where the DOL has in essence predetermined a shortage exists in the labor market,” said Dawn Lurie, senior counsel in the Immigration Practice Group of Seyfarth’s Washington, D.C., office. “For occupations on this list, U.S. employers may bypass the labor market test that is currently required to sponsor foreign workers for green cards.”

The DOL published a request for information December 15 soliciting public input about possible additions to the Schedule A list. The agency will inquire about “identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able and qualified United States workers.”

Lurie said that an expansion of the DOL Schedule A list of occupations “would be significant.”

H-1B Pilot Set to Begin

A limited number of H-1B workers will soon be able to renew their visa stamps in the U.S., rather than travel outside the country and face uncertain wait times to secure an appointment at a U.S. consular office, the Department of State announced. The pilot program for domestic renewal of H-1B visas is expected to be launched by February 2024.

“Currently, H-1B visa holders must apply at a U.S. consulate or embassy abroad to renew their visa stamps,” said Kelli Natrin, an attorney in the Philadelphia office of Cozen O’Connor. “Foreign nationals often have to plan work and travel schedules around their scheduled consular visits.”

The domestic visa renewal pilot program is one of several measures the State Department is looking to implement or continue to help drive down wait times for overseas processing.

“The new pilot program aims to alleviate massive wait times at consulates abroad,” Natrin said. “Currently, the average wait time for a visa appointment globally is 130 days. The State Department aims to reduce wait times to 90 days. It is also taking steps to extend visa interview waivers for certain foreign nationals applying for visa stamps at U.S. consulates abroad.”

The ability to waive interviews for visa applicants who would otherwise be required to appear in person has been key to processing visa applications more efficiently, said Julie Stufft, deputy assistant secretary for consular affairs at the Department of State.  

The rollout of the visa renewal pilot will be limited to 20,000 participants at first. “We really need to get proof of concept that it works before we can extend it to a larger group,” Stufft said. “This is a huge change for folks who live here and previously would have had to leave the United States.”

It is not yet known how pilot participants will be selected or what the process will be. “With more than 500,000 H-1B workers currently in the U.S., this pilot program will serve only a fraction of the H-1B population,” Natrin said.