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New USCIS Proposal Regarding employment-based immigrant and non-immigrant visa programs.

The USCIS has proposed an initiative that would streamline and enhance specific aspects of employment-based immigration and non-immigrant visa programs. The USCIS is also recommending amendments that will make it easier for U.S. employers to hire and retain certain foreign employees of approved employment visa petitions who are waiting for permanent residency.

To read the proposed rule published on December 31, 2015 on the Federal Register, click here [“Retention of EB-1, EB-2 and EB-3 Immigrant Workers & Program Improvements Affecting High-Skilled Nonimmigrant Workers”]

The Department of Homeland Security has also proposed amendments to:

  • Clarify and enhance existing policies related to certain foreign workers to improve consistency in adjudication by the USCIS, as pertaining to sections of the American Competitiveness and Workforce Improvement Act (ACWIA) and the American Competitiveness in the Twenty-First Century Act (AC21).
  • Improve the ability of U.S. employers to hire and retain certain foreign employees of approved employment-based immigrant visa applications (I-140) while maintaining job flexibility and stability. This rule is also intended to increase a worker’s ability to advance in their careers through position changes, changing employers, and other job opportunities.
  • Enhance job portability for certain approved I-140 petitioners by restricting grounds for an withdrawal or automatic revocation of a petition.
  • Clarify instances when an individual may be able to maintain their priority date when applying for adjustment of status to permanent resident (including in cases when the USCIS has revoked a petition due to withdrawal from an employer)
  • Enable specific skilled individuals present in the United States with nonimmigrant status (E-3, O-1, H-1B, H-1B1, L-1) to apply for unrestricted employment authorization for a year if:
    • Remain unable to adjust their status due to unavailability of visa
    • They are beneficiaries of an approved I-140 petition
    • They are able to demonstrate a compelling reason for issuing an employment authorization document (if such authorization may only be renewed in limited circumstances)
  • Clarify policies relating to adjudication of H-1B petitions, such as cap exemptions and counting workers under H-1B visa cap and job portability, status extension, whistleblower protection.
  • Create a one-time grace period of up to 60 days for specific high-skilled nonimmigrant workers who are facing the end of their employment. This allows them more time to pursue new employment and extension of their status.

These changes have not yet taken effect and will take effect once the final rule is published in the Federal Register.

NEW LAW INCREASES H-1B AND L-1 PETITION FEES

The Consolidated Appropriations Act (2016, Public Law 114-113) took effect on December 18, 2015 and increased fees for specific H-1B and L-1 applications. An additional fee of $4,000 (certain H-1B) and $4,500 (certain L-1A/L-1B) is now required for petitions postmarked on or after Dec. 18, 2015.

The new fee increases apply to employers with 50 or more employees in the U.S., with more than 50% of employees holding H-1B or L (L-1A and L-1B nonimmigrant status.

This fee is paid in addition to the basic processing fee, American Competitiveness and Workforce Improvement Act Fee, Fraud Prevention fee, and other applicable fees. The Public Law 114-113 fees are effective through September 30, 2025.

The USCIS is currently revising Form I-129 (Nonimmigrant Worker Petition) and Form I-129S (Non-Immigrant Petition Based on Blanket L Petition) to reflect Public Law 114-113.

For Petitioners: Continue to fill in Items 1.d. & 1.d.1. of Sec. 1 on the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement (Form I-129, page 22) and Items 4.a. and 4.b. of L Classification Supplement (Form I-129, page 22).

If these items are not completed and the new fee is not included, the USCIS may reject petitions received on or after February 11, 2016. The USCIS may issue a Request for Evidence (RFE) to assess whether the fee is required.

If you previously submitted a petition with the additional fee and believe the fee was not required, please contact the National Customer Service Center at 800-375-5283 (TDD for the deaf and hard of hearing: 800-767-1833.

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