- 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.
- 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.
- 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.
- 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.
- 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.