As published in the Immigration Daily on March 25, 2024

1. The Ending of This Year’s H-1B Registration– What Are Your Odds?

With the final registration filed before noon Eastern Standard Time on March 25, 2024, the book now closes on H-1B cap registrations for the year. Pending the results, USCIS appears to have done a good job in implementing the February 2, 2024 final rule, “Improving the H-1B Registration Selection Process and Program Integrity”. The most important part – a fix to cut down on the rampant fraud of past years when USCIS moved from a full paper petition- based filing registration system to one simply based upon organization registration and payment of a small $10 fee to identify each of its candidates – was implementation of the beneficiary centric process through selection by unique beneficiary rather than by the number of organization registrations. In such process, even if 25 organizations put in registrations for the same beneficiary, the system would only identify the beneficiary once for purposes of selection rather than giving the beneficiary 25 chances.

So what are the odds? USCIS gave its forecast of the number of registrations that it expected to receive in another final rule, “USCIS Citizenship and Immigration Services Fee Schedules and Changes to Certain Other Immigration Benefit Request Requirements” on January 31, 2024 – 424,400. Assuming that the number is somewhat accurate, we believe that the percentage picked will be somewhere in the area of the low 30%’s based upon past selection records of the agency. Throwing out last year in which USCIS picked 188,400 after the hue and cry over the fraud which allowed 780,884 registrations, the average number of selections over the previous three years was 127,980 [1]. Such yields a selection rate of 30.15% of the 424,400 estimate, and would be an improvement over last year’s fiasco in which the selection rate was 24.1%. If the number selected is greater, or the number of individual beneficiaries less than estimated, the percentage of selection would be correspondingly higher than 30.15%. We can only hope.

Good luck to all participants in this year’s selection!

2. April 1 –Complex Intertwining of New Fees and Forms for Certain Applications and Petitions.

Unless blocked by litigation, the fee schedule implemented by the above final rule will come into effect on April 1, 2024. Many of the fee changes are straightforward, going from an old fee to a new fee, although some are humongous such as the fees for immigrant investors in which forms I-526 and I-526E for investors to file petitions either through individual or regional investment center investments move from $3,675 to $11,160 and for forms I-956 to apply for regional center designation and I-956F to request approval for investments in a commercial enterprise jump from $17,795 to $47,695.

The below are some of the more common petitions and forms that people use which not only feature changes in fee, but also tack on new charges to bring about more revenue to USCIS and/or to help cover the asylum program expenses.

  • I-130 – Increase of $90 for online filing ($625), $140 for paper filings ($675) (required for concurrent I-485 filings).
  • I-129 –H-1B – Increase of $320 on organizations with at least 26 ($780) and old fee of $460 for 25 and less and nonprofits + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
  • I-129 –L-1 – Increase of $925 for companies 26 and over ($1385) and $695 fee for 25 and under and nonprofits + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
  • I-129 –O-1 – Increase of $595 for companies 26 and over ($1055) and $530 fee for 25 and under and nonprofits + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
  • I-140 – Increase of $15 ($715) + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
  • I-485 – Increase of $215 for adults ($1440) and for child filing with one parent $200 ($950). For combination I-130/I-485 filings, $140 (I-130) plus $215 (I-485) = $355 more. Associated advance parole = $630 and EAD $260 (new fees).

Readers should check that the proper new fees are being submitted for cases postmarked to USCIS after March 31, 2024, to ensure that the petitions or applications are not rejected.

 3. April Visa Bulletin Movements and Projections.

The April Visa bulletin saw most movement in the Employment-Based (EB) final action dates chart with limited movement in the other three. Movement on the bulletin from March was as follows: FB (Family-based): B chart (dates for filing) India F-4 advanced one month two weeks to 4/8/06 and Philippines one year to 4/22/05. A chart (final action dates) F-2A advanced worldwide two months two weeks to 9/8/20 with the exception of Mexico which advanced two months to 8/15/20. EB (Employment-based) B chart (dates for filing) India EB-1 moved up three months to 4/1/21, its EB-3 advanced one month two weeks to 9/15/12 as did its EB-3W; EB-4 worldwide for ministers and for certain religious workers advanced 11 months to 12/1/20. A chart: (final action dates) China EB-1A advanced one month two weeks to 9/1/22 and India five months to 3/1/21; EB-2 ROW (Rest of World) advanced one month three weeks to 1/15/23 while China moved up one month to 2/1/20 and India one and ½ months to 4/15/12; EB-3 ROW moved one month two weeks to 11/22/22 and India advanced one month two weeks to 8/15/12; EB-3W ROW advanced one month to 10/8/20 and India one month two weeks to 8/15/12; EB-4 worldwide moved up 11 months to 11/1/20 and non-ministers went from 12/1/19 to unavailable. Unmentioned categories had no movement.

The State Department prediction of visa availability in coming months is that F-1 worldwide can advance up to three months; F-2A excluding Mexico up to six months; F-2B up to 10 weeks; F-3 several months; F-4 up to four weeks. In the EB categories, very little to no forward movement since the final action dates for many categories advanced for April 2024.

USCIS continued to use dates for filing for family-based cases and final action dates for employment-based in the month of April.

4. Unwritten Rule for Consular Processing.

In an AILA New York consular practice webinar in March, two former consular officers talked about unwritten rules and mentioned that it looks bad to the consulate when a person changes status in the US and then comes back for the visa because there is an intent issue with the consulate, especially where nonimmigrant intent is relevant, and this is a big no-no for people on tourist or business visas who may be able to get six months to stay, but the consular officer knows that most Americans would only stay a few weeks in a foreign country before going back.

5. New Worries for Chinese Graduate Students Reentering US.

This has become a hot button issue being reported on by the New York Times and Washington Post among others. Students and scholars from China with valid visas who take trips home are in danger of having their visas canceled and being sent home when they return to the US. This has happened to more than a dozen Chinese graduate students in PhD science programs at Yale, John Hopkins, and other major US research universities. In addition to having the visas canceled after being interrogated for hours, some wind up with a five-year ban on entry. Dulles Airport was reported as having the highest propensity to question and remove Chinese students so that the Chinese Embassy on January 29 warned Chinese students not to enter at that airport. Other mentioned airports in articles were Dallas-Fort Worth, Chicago O’Hare, and Boston Logan International Airport. For the foreseeable future, students and scholars from China in postgraduate science-related programs may wish to curtail nonessential trips back home.

[1] Figures from February 2, 2024 final rule, “Improving the H-1B Registration Selection Process and Program Integrity.”