DHS proposes wage-based selection system for annual H-1B cap lottery

On September 24, 2025, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) that would change the way annual H-1B cap lottery selections are made. The announced change would, in years when demand for new H-1B visas exceeds the annual numerical cap, replace the current random lottery with a wage-weighted selection process. Each unique registered beneficiary would get entries in the lottery based on the level of their offered wage (Level IV = 4 entries, Level III = 3 entries, Level II = 2 entries, Level I = 1 entries) in the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) system. After the draw to fill the regular H-1B cap of 65,000 per year, the advanced-degree exemption of up to 20,000 would use the same weighting system.

After the 30-day public comment period, if the regulation becomes a Final Rule, DHS intends implement the new process in the H-1B cap registration in 2026 for new H-1Bs taking effect in FY2027, starting October 1, 2026. However, because litigation is likely in the event of a Final Rule, it is unknown whether or when such a Final Rule would apply.

Note that before the end of the first Trump Administration, in 2020, DHS adopted a Final Rule for a wage-weighted H-1B lottery selection, similar in some respects to the current NPRM. Implementation of that rule was delayed and ultimately withdrawn by the Biden Administration after a federal court vacated it. Our blog post on the NPRM for that Final Rule is here.

Existing H-1B law relating to wages

Under existing law and procedure, the beneficiary’s offered wage is not considered in the H-1B cap lottery registration process. Only after a beneficiary is selected in the lottery may an employer file an H-1B petition with USCIS. As part of the H-1B petition process, the petitioner (employer) must file with the U.S. Department of Labor (DOL) a Labor Condition Application (LCA) attesting, among other things, that it will pay the beneficiary a wage that is the higher of: (1) the actual wage that it pays to all other individuals with similar experience and qualifications for the specific employment in question in the geographic area of employment; or (2) the prevailing wage for the occupational classification, per DOL’s Standard Occupation Classification, or SOC, system, in the geographic area of intended employment. Prevailing wages are usually calculated by reference to the government’s OEWS system. DOL uses OEWS data to set four levels of prevailing wage for each occupation in locations across the United States, referred to as Levels I, II, III, and IV.

Proposal would require employers to calculate required wage before lottery registration

Instead of the minimal information required for an H-1B cap lottery registration under current regulations (employee name and passport details, basic employer information including name, address, FEIN, and authorized signer details, etc.), the proposed regulation would require, in addition, that the electronic registration form include the SOC code for the occupation, the wage that an employer will pay the H-1B worker, the prevailing wage rate for the job, the source of the prevailing wage rate, and the applicable prevailing wage level (Level I, II, III, or IV).

Selection of prevailing wage level for purposes of lottery registration

Because a higher prevailing wage level (I, II, III, or IV) will correlate with increased chances of lottery selection, the proposed rule seeks to prevent “gaming the system.” It would require the employer to identify the prevailing wage level that the wage it intends to pay the beneficiary would equal or exceed for the relevant SOC code in the geographic area(s) of intended employment. The OEWS wage level selected on the petition must reflect the corresponding prevailing wage level as of the date the registration is submitted.

A typical fact pattern for an H-1B registration under the new rule will involve one beneficiary, registered by only one employer, using the OEWS wage data for prevailing wage, for a job that corresponds to an occupation in the SOC system, to be performed in a single geographic location. In such a case, selection of Level I, II, III, or IV will follow normal DOL guidance. However, certain factual variations are covered in the proposed rule as follows:

• If the proffered wage is expressed as a range: The registrant would select the prevailing wage level that the lowest wage in the range will equal or exceed.

• If the H-1B beneficiary will work for the employer in multiple locations, or in multiple positions if the registrant is an agent: The registrant would select the box for the lowest equivalent wage level among the corresponding wage levels for each of those locations or each of those positions and would list the location corresponding to that lowest equivalent wage level as the area of intended employment. In the example give in the preamble of the NPRM, if the beneficiary would work as a software developer (SOC code 15-1252) with a proffered wage of $175,000 in both Sacramento, California, where such wage exceeds Level IV, and San Francisco, California, where the highest level that such wage meets or exceeds would be Level II, the registrant would select the “Level II” box on the registration form and list San Francisco as the area of intended employment.

• If multiple employers register the same unique beneficiary: USCIS uses a “beneficiary-centric” H-1B cap registration process. Multiple employers (provided they are not related to each other and not coordinating with each other) may register the same beneficiary, assuming each employer has a bona fide job for the beneficiary; however, the beneficiary is only entered once in the H-1B cap lottery. If a beneficiary is selected, and has been registered by multiple employers, each employer receives a selection notice, and the beneficiary may then choose to pursue an H-1B with any of those employers. The NPRM proposes to operate in conjunction with the existing beneficiary-centric selection process. Specifically, USCIS would continue to count registrations based on the number of unique beneficiaries who are registered but would enter each unique beneficiary into the selection pool in a weighted manner based on an assigned OEWS wage level. USCIS would assign each unique beneficiary an OEWS wage level based on the lowest OEWS wage level among all registrations submitted on the beneficiary’s behalf. For example, a beneficiary for whom a Level I registration and a Level IV registration are submitted would be assigned to Level I for the purpose of weighted selection.

• If the employer relies on a prevailing wage from a source other than the OEWS wage system: In this case, if the proffered wage is less than the corresponding Level I OEWS wage, the registrant would select the “Level I” box on the registration form.

H-1B cap-subject petition filing following registration selection

An H-1B petition may be filed for a beneficiary only if the petition is based on a valid selected registration. Under the NPRM, the H-1B petition would have to contain the same identifying information and position information, including SOC code, provided in the selected registration and indicated on the LCA used to support the petition. The petition would also have to include a proffered wage that equals or exceeds the prevailing wage for the corresponding OEWS wage level in the registration for the SOC code in the geographic area(s) of intended employment.

Although the NPRM would require the registrant to list only one work location in their registration — the work location corresponding to the lowest wage level if there will be multiple work locations for the same employer – the H-1B petition would have to list all addresses where the beneficiary will work. If the geographic area of intended employment provided in the registration is not listed in the H-1B petition, USCIS may, in its discretion, determine that a change in the area(s) of intended employment is permissible, provided such change is consistent with a “bona fide job offer” at the time of registration.

Bona fide job offer

Substantial attention in the NPRM’s preamble is devoted to the requirement of a “bona fide job offer.” Any variations from the job details that were identified in the H-1B lottery registration will be subject to evaluation by USCIS of whether there was a bona fide job offer. Examples given in the NPRM include:

• The geographic area of intended employment provided at registration is expected to be reflected as a worksite in the subsequently filed petition. However, recognizing that there are legitimate reasons that an intended work location might change between the time of registration and the time of filing the petition, DHS is proposing that USCIS may, in its discretion, find that a change in the geographic area(s) of intended employment would be permissible, provided such change is consistent with a bona fide job offer at the time of registration. For instance, the NPRM’s preamble states, an employer with multiple offices might decide to place the beneficiary at a different office than originally intended at a wage that equals or exceeds the same equivalent wage level for the new location as that indicated on the registration.

• Using the NPRM’s example of the beneficiary who would work in both Sacramento and San Francisco where the registration only listed San Francisco as the area of intended employment, the petition would list both Sacramento and San Francisco as work locations.  In such a case, USCIS would not consider this to be a “change in the area(s) of intended employment.”

• The proposed rule would allow USCIS to deny a subsequent new or amended H-1B petition filed by the petitioner, or a related entity, on behalf of the same beneficiary if USCIS were to determine that the filing of the new or amended petition was part of the petitioner’s attempt to unfairly increase the odds of selection during the registration selection process, such as by reducing the proffered wage to an amount that would be equivalent to a lower wage level than that indicated on the original registration or petition.

• If a new or amended petition includes the same proffered wage but a changed work location such that the proffered wage corresponds to a lower OEWS wage level for the new location than the level indicated on the registration, USCIS could consider that change in determining whether the new or amended petition was part of the petitioner’s attempt to unfairly increase the odds of selection. However, if the wage continues to meet or exceed the same OEWS wage level as listed on the original petition, USCIS would consider the totality of the circumstances when determining whether to deny a new or amended petition.

Reminder about “cap-exempt” H-1B categories, not subject to statutory numerical limits or lotteries

The NPRM’s proposed registration and selection rules apply only to “cap-subject” H-1B registrations/petitions. An H-1B beneficiary’s work for nonprofit research organizations, governmental research organizations, and nonprofit organizations affiliated with institutions of higher education is considered cap-exempt.

We will post further updates as we learn more about the status of this NPRM, and about the revised H-1B registration fields to be included in the myUSCIS registration filing portal in connection with it.

© Jewell Stewart Pratt Beckerson & Carr PC 2025

Presidential Proclamation Imposes $100,000 Fee on Certain H1B Entries

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case.

UPDATE 09/24/2025

Since President Trump released his proclamation on Friday, September 19, 2025, imposing a $100,000 fee on certain H1B entries, several government agencies have released information aimed at clarifying the proclamation’s reach. In prior updates (below) we drew attention to USCIS’ memorandum, CBP’s memorandum, and the White House Press Secretary’s statement on x.com. Since then, several more documents have been released:

USCIS, “H-1B FAQ,” September 21, 2025
Department of State, “H-1B FAQ,” September 21, 2025

These documents are identical in content. They state that:

• The payment is required for “any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025. … The fee is a one-time fee on submission of a new H-1B petition.”

• The payment is NOT required for

  • Previously issued H-1B visas

  • Petitions submitted prior to 12:01 a.m. eastern daylight time on Sept. 21, 2025.

  • “[A]ny H-1B renewals.”  Further guidance is needed on what the agencies mean by “renewals.”

• The proclamation “Does not prevent any holder of a current H-1B visa from traveling in and out of the United States.”

Department of State (“DOS”), “Restriction on Entry of Certain Nonimmigrant Workers,” September 21, 2025

• States that the proclamation’s “restrictions on visa issuance and entry apply only to [applicants] seeking visa issuance or entry into the United States based on H-1B petitions filed with USCIS after the Proclamation’s effective date of September 21, 2025, at 12:01 a.m. Eastern Daylight Time.” The guidance does not state which type of petitions are affected.

• Confirms that no visas have been revoked pursuant to the Proclamation.

• States that all exceptions to the Proclamation “will be determined by the Department of Homeland Security” (DHS), suggesting that DOS will defer to DHS to enforce the fee.

(The White House also released “Fact Sheet: President Donald J. Trump Suspends the Entry of Certain Alien Nonimmigrant Workers” on September 21, 2025, which we did not link to before. We include it here for completeness’ sake, though it did not provide clarifications on the proclamation’s reach.)

Many questions remain and we await further guidance from the agencies. The only thing that seems certain is that the international travel of current H1B visa holders (i.e., those with a valid unexpired H1B visa printed in their passport) should not be affected by the proclamation and the new fee.

Further clarification is needed regarding USCIS-filed H1B petitions for extensions of stay, amendments of stay, and changes of employer, and cap-exempt H1B petitions, that are filed after September 19, 2025. The guidance seems to be pointing to the new policy affecting only those petitions submitted in the 2026 H1B lottery; however, until we have clarifying guidance or real-time experience, we do not know for sure.  

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

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UPDATE 09/21/2025

On September 20, 2025, White House Press Secretary Karoline Leavitt posted the following on x.com regarding the new $100,000 fee in President Trump’s September 19 proclamation:

1.) This is NOT an annual fee. It’s a one-time fee that applies only to the petition.

2.) Those who already hold H-1B visas and are currently outside of the country right now will NOT be charged $100,000 to re-enter. H-1B visa holders can leave and re-enter the country to the same extent as they normally would; whatever ability they have to do that is not impacted by yesterday’s proclamation.

3.) This applies only to new visas, not renewals, and not current visa holders.

It will first apply in the next upcoming lottery cycle.

Assuming this announcement is followed by responsible government agencies, this is good news for current H1B visa holders and their employers. Their international travel should not be affected by the proclamation and the new fee.

Litigation may affect the proclamation’s effect on the upcoming H1B lottery in 2026. We will post here as further updates become available.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

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UPDATE 09/20/2025

On September 20, 2025, U.S. Customs & Border Protection (CBP) posted a memorandum on x.com making certain clarifications to President Trump’s proclamation of September 19. The memorandum states (CBP’s emphasis):

This Proclamation only applies prospectively to petitions that have not yet been filed. It does not impact aliens who are the beneficiaries of currently approved petitions, any petitions filed prior to 12:01 AM ET on September 21, 2025, or aliens in possession of validly issued H­1B non-immigrant visas. United States Citizenship and Immigration Services and the Department of State have been instructed to begin implementing the new monetary requirement for employers submitting petitions on behalf of aliens outside the United States for new H-1B petitions only. The Proclamation does not impact the ability of any current visa holders to travel to or from the United States. CBP will continue to process current H-1B visa holders in accordance with all existing policies and procedures.

On September 20, 2025, U.S. Citizenship & Immigration Services issued a memorandum also making certain clarifications to President Trump’s proclamation of September 19. The memorandum states (USCIS’ emphasis):

This guidance applies to H-1B employment-based petitions filed after 12:01 AM ET on September 21, 2025.  

This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas. All officers of United States Citizenship and Immigration Services shall ensure that their decisions are consistent with this guidance. The proclamation does not impact the ability of any current visa holder to travel to or from the United States.

Both memoranda appear to confirm that current H1B visa holders may travel internationally without becoming subject to the proclamation’s $100,000 fee, which is a critical omission from the proclamation’s text. CBP, which inspects applicants for admission at the border, says the proclamation only applies prospectively to petitions that have not yet been filed; does not impact beneficiaries of currently approved petitions, any petitions filed prior to 12:01 AM ET on September 21, 2025, or beneficiaries in possession of validly issued H­1B non-immigrant visas; and does not impact the ability of any current visa holders to travel to or from the United States.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

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ORIGINAL POST 09/19/2025

On September 19, 2025, President Trump signed a proclamation restricting the entry of H1B nonimmigrant workers unless their petitions are accompanied by a new $100,000 payment. This dramatic policy shift has generated immediate concern among employers, foreign workers, and the broader business community.

Below, we break down the key points of the proclamation and its immediate impact. We believe the effect of this proclamation is limited to new petitions filed after its effective date, September 21, 2025 at 12:01am Eastern Time. However, we anticipate that government agencies will issue implementation details in the coming weeks.

Key Takeaways from the Proclamation

• Applies to H1B workers outside the U.S. The new restriction appears to apply only to H-1B workers outside the United States who seek to enter on or after September 21, 2025. Guidance from U.S. Customs & Border Protection is presumably forthcoming.

• Temporary in scope: The restriction is set to expire after 12 months (unless extended).

• Exceptions available: The Department of Homeland Security (DHS) may waive the requirement for individual foreign workers, foreign workers employed by particular companies, and foreign workers in particular industries where it is deemed to be in the national interest. It is unclear how DHS will administer these exceptions.

• Other petitions: H1B petitions for extensions, amendments, and changes of employer appear to be unaffected. However, we are awaiting guidance from the DHS and U.S. Citizenship & Immigration Services.

What This Means for Employers

• Current H-1B workers in the U.S. do not seem directly affected. Employers can continue filing extensions and amendments under existing rules unless and until clarification is received from DHS.

• New hires abroad are impacted. Unless the $100,000 payment has accompanied an H1B petition for a foreign national outside the U.S.—or an exception applies—entry will be blocked.

• Legal challenges are likely. Similar measures in past administrations have been delayed or struck down in court, meaning implementation may not proceed as quickly or broadly as announced.

Until further information and guidance is received from the government, it is recommended that H1B workers currently present in the United States refrain from international travel.

The proclamation also directs the Department of Labor (DOL) and DHS to begin rulemaking to (1) raise prevailing wage levels and (2) prioritize high-wage, high-skill H1B cases. We will provide more information on this as it becomes available.

Bottom Line

While the headline number is striking, the most important point is that this proclamation does not seem to apply to H1B workers already in the U.S. and may face significant legal challenges before it is implemented.

We are closely tracking developments and will provide timely updates as the situation unfolds.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

New Policies Requiring Visa Interviews in Applicants’ Home Countries

On September 6, 2025, the Department of State announced a policy that applicants must apply for nonimmigrant visas in their home countries. This policy reverses years of flexibility in interview location choice: the prior policy allows applicants to interview anywhere they were physically present, albeit often with lengthier wait times for appointments.  

The policy states: 

• Applicants for U.S. nonimmigrant visas (NIV) should schedule their visa interview appointments at the U.S. Embassy or Consulate in their country of nationality or residence. 

• Nationals of countries where the U.S. government is not conducting routine nonimmigrant visa operations must apply at the designated embassy or consulate, unless their residence is elsewhere. . . . 

Applicants should note the following: 

• Residence Requirement: Applicants must be able to demonstrate residence in the country where they are applying, if the place of application is based on their residency. 

• Fees: Applicants who schedule nonimmigrant interviews at a U.S. embassy or consulate outside of their country of nationality or residence might find that it will be more difficult to qualify for the visa. Fees paid for such applications will not be refunded and cannot be transferred.  

• Appointment Availability: Wait times for nonimmigrant interview appointments vary by location. Applicants applying outside their country of nationality or residence should expect to wait significantly longer for an appointment. 

• Existing Appointments: Existing nonimmigrant visa appointments will generally not be cancelled. 

• Exceptions: This guidance does not apply to applicants for A, G, C-2, C-3, NATO visas, applicants for diplomatic-type or official-type visas (regardless of classification), or applicants for any visa for travel covered by the UN Headquarters Agreement. Rare exceptions may also be made for humanitarian or medical emergencies or foreign policy reasons. 

Although the policy states that applicants “should” apply in their home country (vs. “must”), the word “should” is followed by the list of exceptions, so the rule may be interpreted as a strict requirement. It is also unclear whether someone residing in another county pursuant to a temporary visa may be considered a “resident” for the purposes of a nonimmigrant visa interview. Internal guidance to consular officers may be clearer on these points. As the policy is rolled out and implemented, practices may vary from post to post. 

This policy change follows on the heels of a similar announcement with regard to immigrant visa applications (i.e., for permanent residence, AKA green cards), which must also generally be completed in the country of citizenship. 

Claire Pratt © Jewell Stewart Pratt Beckerson & Carr PC 2025

Update on Visa Interview Waivers

On July 25, 2025, the Department of State (DOS) announced an updated visa interview waiver policy, which will take effect on September 2, 2025.

Previously, visa interviews could be waived for applicants who previously held most types of visas in the same category that expired less than 12 months prior to the new application, as well as for children under 14 or adults over age 79.

Now, visa interview waivers are only available for B-1/B-2 visa renewals (and certain diplomatic visas) within 12 months of the prior visa’s expiration. Additional applicant criteria include:

• Application is in their country of nationality or residence (physical presence is required).

• Applicant has never been refused a visa (unless such refusal was overcome or waived).

• Applicant has no apparent or potential ineligibility.

In addition, interviews for children under 14 or adults over the age of 79 must be conducted in person.

This further restricted policy will certain cause visa appointment wait times to rise, as nearly all visa applicants must be interviewed in person by a consular officer before visa issuance.

 Claire Pratt © Jewell Stewart Pratt Beckerson & Carr PC 2025

Update on Visa Interview Waivers

On February 18, 2025, the Department of State (DOS) announced an updated visa interview waiver policy, which took effect sometime in the last week. 

Previously, visa interviews were waived for nonimmigrant visa applicants applying for any nonimmigrant visa classification who were previously issued a nonimmigrant visa in any classification (other than B) and were applying within 48 months of their most recent nonimmigrant visa’s expiration date.

Now, other than certain diplomatic visas, visa interviews may only be waived for applicants who previously held a visa in the same category that expired less than 12 months prior to the new application.

 Additional applicant criteria include:

• Application is in their country of nationality or residence (physical presence is required).

• Applicant has never been refused a visa (unless such refusal was overcome or waived).

• Applicant has no apparent or potential ineligibility.

Even if an interview is waived, applicants must complete all other application steps such as completing a DS-160, paying the visa application fee, completing the steps on the relevant Embassy or Consulate’s visa appointment service website, and couriering the relevant documents as required.  Applicants are also reminded that in-person interviews may still be required on a case-by-case basis or in light of local conditions. 

 © Jewell Stewart Pratt Beckerson & Carr PC 2025

DHS announces expansion of STEM degree list for OPT extensions

International students who graduate from U.S. universities are able to remain here and receive training through work experience for up to twelve months. This is known as Optional Practical Training (OPT). Students who graduate from a designated science, technology, engineering, and math (STEM) degree, who have jobs related to their field of study with employers who are enrolled in the government’s E-Verify program, can remain in the U.S. for an additional twenty-four months on an OPT STEM extension.

On July 22, 2024 the Department of Homeland Security announced an expanded list of STEM designated-degree programs that qualify eligible graduates for this extension. The list now includes Landscape Architecture, Institutional Research, Linguistics and Computer Science, Composite Materials Technology/Technician, Developmental and Adolescent Psychology, Geospatial Intelligence, Demography and Population Studies, and Mechatronics, Robotics, and Automation Engineering Technology/Technician.

A full list of STEM degrees is available here, and will be of interest to students, employers, and employees with eligible degrees who are currently in their first 12 months of OPT.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

USCIS adopts new fee schedule effective April 1, 2024

Updated March 28, 2024

On January 30, 2024, U.S. Citizenship & Immigration Services (USCIS) announced that it had published a final rule to adopt a new filing fee schedule. This is the first new fee schedule issued by USCIS since 2016. In its Frequently Asked Questions page USCIS has posted a New Fee Schedule Table that lists the old and new fees side by side. Changes of interest include:

• A new “asylum program fee” of $600 per I-129 petition and I-140 petition. (Nonprofits and universities are exempt from this fee.)

• An attempt to mitigate higher fees for employers by offering special discounts for small employers; for example, a reduced “asylum program fee” of $300. “Small employer” means those with 25 or fewer full-time equivalent employees.

• A $50 discount for those who choose online filing over paper filing, when online filing is offered. 

• Premium Processing Service timeframes will be counted in business days, not calendar days as before.

• Separate fees are established for Form I-129, Petition for a Nonimmigrant Worker, depending on the nonimmigrant classification sought (i.e. H-1B, TN, E-3, etc.).

• Separate filing fees will be required for Form I-131 (travel document) and Form I-765 (employment authorization) when filed with Form I-485 (adjustment of status), whether or not they are filed together.

The new fees and rules will become effective on April 1, 2024. There are increases in all application and petition types typically filed in employment-related cases, including Form I-129, petition for nonimmigrant worker; Form I-539, application for change or extension of status; Form I-140, petition for immigrant worker; Form I-485, application to register permanent resident status or to adjust status; and Form I-765, application for employment authorization document.

USCIS warns that applications and petitions postmarked or filed on or after April 1, 2024 must include these new fees. If the new fees are not included with such a submission, it will be rejected.

In addition, revised forms will also become effective on April 1, 2024, along with the new fees. USCIS says it will accept prior editions of most forms during a grace period from April 1, 2024, through June 3, 2024, as long as they are accompanied by the new fee. However, there will be no grace period for some forms, including Form I-129 and Form I-140, because they must be revised with a new fee calculation. Filers must be careful to use the correct forms in each case, as well as to include the correct filing fee.

Government processing of immigration applications and petitions is funded by these user fees and not by taxpayer dollars. These filing fee increases, which in some cases are significant, reflect USCIS's calculation of increases in the work associated with case adjudications and avoiding backlogs.

© Jewell Stewart & Pratt PC 2024

Update on Visa Interview Waivers

On December 21, 2023, the Department of State (DOS) announced an updated visa interview waiver policy, which took effect on January 1, 2024.  The policy both expands and limits the policy that was in place for 2023 and is in place until further notice. 

Under the updated policy, visa interviews may now be waived for nonimmigrant visa applicants applying for any nonimmigrant visa classification who:

• Were previously issued a nonimmigrant visa in any classification, unless the only prior issued visa was a B visa; and

• Are applying within 48 months of their most recent nonimmigrant visa’s expiration date (including renewing a nonimmigrant visa in the same classification).

Note that the interview waiver policy now covers all nonimmigrant visas, vs. certain petition-based categories.  However, note that for applicants whose only prior visa was a B-1, or for first time visa applicants who are citizens of Visa Waiver Program countries, interview waiver is no longer available.   

 Additional applicant criteria include:

• Application is in their country of nationality or residence (physical presence is required).

• Applicant has never been refused a visa (unless such refusal was overcome or waived).

• Applicant has no apparent or potential ineligibility.

Even if an interview is waived, applicants must complete all other application steps such as completing a DS-160, paying the visa application fee, completing the steps on the relevant Embassy or Consulate’s visa appointment service website, and couriering the relevant documents as required.  Applicants are also reminded that in-person interviews may still be required on a case-by-case basis or in light of local conditions. 

 © Jewell Stewart & Pratt PC 2024

H-1B "cap" reached for FY 2024

U.S. Citizenship and Immigration Services (USCIS) announced on December 13, 2023 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2024. 

The USCIS announcement states:

USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2024.

We will send non-selection notices to registrants through their online accounts over the next few days. When we finish sending these non-selection notifications, the status for properly submitted registrations that we did not select for the FY 2024 H-1B numerical allocations will show:

·         Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

We will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2024 H-1B cap. We will continue to accept and process petitions filed to:

·         Extend the amount of time a current H-1B worker may remain in the United States;

·         Change the terms of employment for current H-1B workers;

·         Allow current H-1B workers to change employers; and

·         Allow current H-1B workers to work concurrently in additional H-1B positions.

No further selections for new H-1B petition filings will take place for FY 2024, and the next registration period for FY 2025 will take place sometime in Q1 2024.

© Jewell Stewart & Pratt PC 2023

USCIS proposes new H-1B definitions, H-1B Cap processes, and benefits for F-1 students

On Monday, October 23, 2023, U.S. Citizenship & Immigration Services (USCIS) published a proposed rule (Notice of Proposed Rulemaking, or NPRM) in the Federal Register that would bring significant changes to H-1B visa processes, including changes to the H-1B cap selection. The NPRM (88 FR 72870, 10/23/23) has a 60-day public comment period ending on December 22, 2023, after which a Final Rule is expected.

USCIS is prioritizing the H-1B cap selection changes to take effect in time for the FY2025 cap selection, for which registration will open in early 2024. However, in its preamble to the NPRM, USCIS acknowledges that it is also possible, if there are technology or resource issues, that the new system may be postponed. In that case, USCIS says it will publish a notice in the Federal Register at least 30 days before the initial H-1B cap registration period.

Highlights of the NPRM follow.

1.       Extended cap-gap for F-1 students

Under the NPRM, an F-1 student with OPT or STEM OPT work authorization who is the beneficiary of a change-of-status H-1B cap petition gets, upon timely filing of the petition, an automatic extension of their F-1 status and work authorization (“cap gap”) to April 1 of the fiscal year for which the H-1B is being sought. Under the current system, “cap gap” work authorization ends on September 30 of the year prior to the year for which H-1B status is sought and the individual’s F-1 status ends 60 days later. This proposal should go a long way toward minimizing F-1 work authorization gaps while awaiting H-1B status.

2.       Making H-1B cap selection lottery “beneficiary-centric”

The NPRM proposes that the registration selection process be based on unique beneficiaries rather than unique registrations. It is hoped that this will reduce the incentive for employers and individuals to pursue registrations without the existence of a bona fide job offer. Multiple (non-related, non-coordinating) employers may still register the same beneficiary, assuming each has a bona fide job for them; but under the NPRM, the beneficiary will only be entered once in the H-1B cap lottery. If a beneficiary is selected, and has been registered by multiple employers, each employer will receive a selection notice, and the beneficiary may then choose to pursue an H-1B with any of the employers that filed a registration on their behalf, provided there are bona fide job offers that the beneficiary intends to accept.

To enforce the limit of one H-1B cap registration per beneficiary, beneficiaries will be identified not only by the same information used currently, but also by their passport data. Passport data will be required in all cases and, if the beneficiary is abroad, they must use the same passport in the registration that they will use to enter the U.S. (with limited exceptions).

3.       Codifying the Simeio memo for H-1B petitions

According to the USCIS Administrative Appeals Office’s decision in Matter of Simeio Solutions, LLC (2015), and the 2015 USCIS Policy Memo to implement the decision, a new or amended H-1B petition involving material changes to an H-1B beneficiary’s job must be filed with USCIS before the changes take effect. In cases where H-1B portability rules apply, the changes may take effect upon filing of the new/amended petition instead of waiting for petition approval. Any change to a beneficiary’s job that requires a new Labor Condition Application from the U.S. Department of Labor is, by definition, a material change and requires an amended H-1B petition.

The NPRM would codify the Policy Memo, giving it the force of federal regulation, and give it teeth by adding a new ground for H-1B petition revocation to the existing revocation grounds. The new ground would allow USCIS to revoke an H-1B petition if the H-1B petitioner (employer) fails to timely file an amended petition notifying USCIS of a material change. Potentially softening the effect of this is an expansion of the circumstances in which USCIS may “forgive” and accept a late-filed petition: it would not only cover filings after I-94 expiration, as it does currently, but would also cover late-filed amended petitions, i.e., where the I-94 is not expired but circumstances requiring an amended filing took effect before the amendment was filed.

 4.       Codifying policy on USCIS H-1B site visits

The NPRM codifies current USCIS policy and practice regarding employer site visits to investigate the validity of H-1B and other nonimmigrant petitions. Per the NPRM, USCIS at any time after filing of the petition, including after petition approval, may conduct unannounced site visits, hold interviews of petitioners or beneficiaries without the presence of counsel, and perform investigations to verify that the information in the petition is/was true. Failure or refusal of the petitioner to cooperate in a site visit may result in denial or revocation of the H-1B petitions of any H-1B workers at the work site in question.

5.       Revision to the regulatory definition and criteria for a “specialty occupation” including some helpful clarifications

The make-or-break issue in every H-1B petition is whether the job in question is in a “specialty occupation,” i.e., requires a bachelor’s or higher degree in a specific field. The NPRM would change the existing regulatory definition of “specialty occupation” to make it clear that any field of study stated as required for the job in the H-1B petition must be directly related to the job duties. The NPRM also would clarify that, if a range of academic fields satisfy the employer’s degree requirement, each such field must be established as directly relating to the position. The NPRM’s proposed definition of “specialty occupation” is (emphasis ours):

Specialty occupation means an occupation that requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and that requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. The required specialized studies must be directly related to the position. A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. A position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position.

6.       Revision to the regulatory definition of “U.S. employer,” allowing H-1B sponsorship by an entity majority-owned by the H-1B beneficiary

In a potential boon for early-stage startups, the NPRM proposes that a “U.S. employer” for H-1B sponsorship purposes may be an entity that is majority-owned by the sponsored H-1B beneficiary as long as the majority (over 50%) of the beneficiary’s time is spent on “specialty occupation” duties. In the majority owner-beneficiary scenario, the initial H-1B petition validity would be limited to 18 months, and the first extension (including an amended petition with a request for an extension of stay) would also be limited to 18 months. Any subsequent extension may be approved for up to three years, assuming the petition satisfies all other H-1B requirements.

7.       To allow more H-1B petitions to qualify as “cap exempt,” a broadening of key definitions

H-1B petitions sponsored by certain types of organizations are exempt from the lottery for new H-1B visas each year. An H-1B beneficiary’s work for nonprofit research organizations, governmental research organizations, and nonprofit organizations affiliated with institutions of higher education is considered cap-exempt, but proving cap-exemption has been a challenge due to USCIS’ strict interpretation of the criteria, and the difficulty of proving the degree of closeness of the H-1B beneficiary’s work to the cap-exempt organization’s mission or purpose. Key liberalizing changes in the NPRM include:

• “Nonprofit research organization” – The H-1B sponsoring entity will need an IRS determination letter confirming tax-exempt status, but the IRS letter need not necessarily specify that the organization’s purpose is “research.” “Research” may be shown in other documentation.

• “Research” – Research (basic or applied) need not necessarily be the organization’s main purpose; it may be just one part of what the organization does.

• A nonprofit’s affiliation with an institution of higher education – The nonprofit’s main purpose need not necessarily be to contribute to the research or education mission of the institution; doing so may merely be a purpose, or even merely a fundamental activity, of the nonprofit.

• An H-1B petition may be cap-exempt if beneficiary’s job duties support or advance a (not necessarily the) fundamental purpose, function, mission, or objective of the cap-exempt entity.

• In an H-1B petition that is cap-exempt for a beneficiary not directly employed by the exempt entity but working “at” the exempt entity, the word “at” can mean working remotely as versus physically onsite, and work for the exempt entity may be as little as 50% of the beneficiary’s time.

The NPRM’s liberalizations in the cap-exempt area would significantly increase the number of H-1B petitions exempt from the cap, thus taking pressure off the annual demand for cap-subject H-1Bs.

Jewell Stewart & Pratt will watch developments related to the NPRM closely, including the publishing of the Final Rule, and post updates here as they occur.

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