Greenspoon Marder Immigration Alert: USCIS Opens H-IB CAP

Feb 6, 2023

USCIS announced that the Fiscal Year 2024 cap registration period will open at noon ET on March 1, 2023, and will close at noon ET on March 17, 2023. All cap registrations must be drafted and submitted online during this period. H-1B cap employers may use their existing “registrant” myUSCIS accounts for FY 2024 cap registration. Employers setting up new “registrant” accounts may do so beginning Tuesday, February 21 at noon ET and continuing through the registration period. After registration closes, USCIS will conduct the FY 2024 H-1B cap selection and notify sponsoring employers of selected entries by March 31, 2023. USCIS has not yet announced the period for submitting petitions for selected registrations, but it is expected to begin on Monday, April 3, 2023. The petition filing period will remain open for a minimum of 90 days.

Please note, USCIS is expected to receive far more H-1B cap registrations than needed to meet the annual quota of 85,000.

At the end of the registration period, USCIS will conduct two lotteries to select enough beneficiaries to meet the 85,000 annual cap. The first lottery will include all registered beneficiaries and will select enough registrations to meet the regular cap of 65,000. The second lottery includes registered U.S. advanced-degree holders who were not chosen in the first lottery and would select enough registrations to meet the advanced-degree cap exemption of 20,000.

Hong Kong-DED

In a Memorandum issued yesterday, President Biden announced that Deferred Enforced Departure (DED) for Hong Kong residents – which was set to expire on February 5, 2023 – is being extended for an additional two-year period. The Presidential Memorandum also expands Hong Kong DED to cover eligible Hong Kong residents who arrived in the U.S. after the initial grant of DED was announced in August of 2021.

This DED extension and redesignation provides eligible Hong Kong residents who are concerned about returning to Hong Kong with temporary safe haven in the U.S. DED beneficiaries are also eligible to apply for employment authorization.

Haitian Relief

The Department of Homeland Security (DHS) has extended and redesignated Haiti for Temporary Protected Status (TPS), from February 4, 2023, through August 3, 2024. DHS is also extending the suspension of certain employment authorization rules for Haitian students in F-1 status.

Relief for L-2’s and H-4 dependents

On January 19, 2023, the Department of Homeland Security reached a Settlement Agreement in Edakunni v. Mayorkas. The Agreement requires United States Citizenship and Immigration Services (USCIS) to adjudicate Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization at the same time for H-4 and L-2 dependents when these forms are filed with the underlying Form I-129 nonimmigrant petition. The new change will go in effect on January 25, 2023, and will remain in effect for two years after the effective date.

In March of 2019, USCIS stopped their long-held prior practice of bundling the adjudication of H-4, L-2 and EAD petitions with their accompanying H-1B and L petitions. The 2019 policy change, which Edakunni challenged, led to long processing times, significant delays in the adjudication of employment authorization applications and significant job loss.

In order for the Form I-539 and Form I-765 to be considered properly filed together, the forms must be packaged together and filed at the same time and in the same location as the Form I-129. Provided that the forms are properly filed together, USCIS will process the forms concurrently under both standard and premium processing. This settlement will provide welcome relief to the H-4 and L-2 dependents who suffered due to the 2019 policy change.

USCIS to Extend Deadline

In its ongoing response to the COVID-19 pandemic, USCIS is further extending its deadline extension policy for responses to various agency actions through March 23, 2023. The accommodations, which were initially announced in March 2020 as a means of minimizing negative consequences of the COVID-19 pandemic, have been extended several times.

USCIS also states that it anticipates this extension to be the final extension of the accommodation policy, barring changes in the COVID-19 pandemic. Upon termination of the accommodation policy – whenever that occurs – employers and foreign nationals will be required to respond to all agency notices and deadlines under the standard response requirements.

USCIS Provides follow-up Q&A on International Students Issues

USCIS provided answers to the questions gathered from the CIS Ombudsman’s Webinar presented in August 25, 2022, on international issues. It covered the following topics: maintaining F-1 status, reinstatement of F-1, OPT, filing the I-765, Applications for employment authorization, Systematic Alien Verification for Entitlements (SAVE), Student and Exchange Visitor Information System (SEVIS), Change of Address requirement, and COVID-19 related issues. For detailed information, please click link attached here.

Please reach out to your Greenspoon Marder LLP Immigration & Naturalization Practice Group for any further questions or concerns.

About Greenspoon Marder

Greenspoon Marder LLP is a full-service law firm with over 240 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has upheld a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.

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This Greenspoon Marder LLP Client Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.

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Greenspoon Marder Immigration Alert: USCIS Opens H-IB CAP

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