Please note that if the I-539 (H-4 or L-2) applications and I-765 (H-4 EAD) applications are filed separately, USCIS will not adjudicate those applications with the I-129 for the principal applicant.

On January 25, 2023, U.S. Citizenship and Immigration Services (USCIS) returned to bundling adjudication of Form I-539 (Application to Extend/Change Nonimmigrant Status) and Form I-765 (Application for Employment Authorization) for H-4 and L-2 derivatives along with the underlying I-129 for the principal applicant for concurrent filings.

This is due to a settlement with the government, which is a reversal of a 2019 decision by USCIS to decouple H-4 and L-2 pending applications from the concurrently filed I-129 (which caused unnecessary H-4, EAD and L-2 delays). Now, the applications for spouses and children will be decided at the same time as the principal, even when premium processing is requested―but only when requesting premium processing with the initial filing of the I-129 form.

Please note that if the I-539 (H-4 or L-2) applications and I-765 (H-4 EAD) applications are filed separately, USCIS will not adjudicate those applications with the I-129 for the principal applicant.

Premium Processing Expanded

Starting January 30, 2023, USCIS will further expand premium processing for any new (initial) or currently pending Form I-140 (Immigrant Petition for Alien Workers) filed for EB-1 multinational executives or managers and EB-2 advanced degree or exceptional ability professionals seeking a national interest waiver. To request premium processing on or after January 30, the Form I-907 (Request for Premium Processing)―version dated November 3, 2022―must be filed. USCIS will no longer accept previous editions of this form.

Proposed Filing Fee Increases

USCIS has proposed substantial government filing fee increases for 2023. For example, the I-129 H-1B filing fee could increase from $460 to $1,680 and the I-129 L-1 filing fee would increase from $460 to $1,985. The 60-day comment period on this increase will end on March 6, 2023. There is a notice and comment period which ends March 6, 2023, should you decide to comment.

H-1B Cap Season (FY 2024)

Employers seeking to file an H-1B cap petition are required to submit an H-1B electronic registration for each worker during the registration period that will start again this March. An employer can create a USCIS online account starting on February 21, and then all H-1B registrations can be submitted starting on noon Eastern time on March 1, 2023, and is expected to end at noon Eastern time on March 17, 2023, assuming the government receives enough registrations to close the lottery on that day. 

As a reminder, once the registration period closes, USCIS will conduct a random lottery from the submitted petitions and select 65,000 from the regular cap and 20,000 from the master’s cap as in previous years. (Chilean and Singaporean citizens have 6,800 visas set aside as part of each nation’s respective free trade agreements with the United States.) As of March 31, USCIS will notify the H-1B lottery winners by changing the registration statuses to reflect the selected cases. The employers can then file the I-129 H-1B petitions for those selected. Generally, these petitions must be filed between April 1 and June 30, and the new H-1B status will go into effect October 1 (the start of the government’s fiscal year).

USCIS Extends Flexibilities for Responding to Agency Requests

USCIS has again extended certain COVID-19-related flexibilities through March 23, 2023. USCIS will consider responses received within 60 calendar days after the due date set forth in notices or requests issued between March 1, 2020 and March 23, 2023.

The government’s notice states that:

USCIS anticipates that, barring changes presented by the pandemic, this will be the final extension of these accommodations, and requesters must comply with the response requirements set forth in any request or notice dated after March 23, 2023.

About Duane Morris

Our Immigration Law team regularly assists in the preparation of H-1B cap petitions and the filing process. The team can further assist companies and their employees regarding the required documentation to file these petitions.

For More Information

If you have any questions regarding this Alert, please contact Lisa Spiegel, Denyse Sabagh, any of the attorneys in our Immigration Law Group, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.