Agency Guidance and Regulatory Changes

The U.S. Department of Homeland Security has finalized the remaining provisions of the H-1B Modernization Act first introduced in October 2023.  Certain provisions related to the H-1B cap were implemented in March 2024, and on December 18, 2024 the remaining provisions were published in the Federal Register.  Some key components of the new rule include:  a revision of the definition of H-1B specialty occupation to allow more flexibility in demonstrating the relationship between the offered position and the required degree;  codification of the USCIS policy of exercising deference to prior adjudications;  codification of USCIS policy on H-1B amendments for material changes including changes to employment location; and extending the F-1 OPT cap-gap period from October 1 to as late as April 1 of the next calendar year to give F-1 students continued work authorization while an H-1B petition for change of status is pending.  The rule also codifies the USCIS Fraud Detection and National Security (FDNS) site visitor program. 

On December 9, 2024 the U.S. Department of State issued a revised J-1 Exchange Visitor Skills List, effective upon publication in the Federal Register the same day.  The revised Skill List removes a significant number of countries from the prior version of the Skills List, which had been in effect since 2009.  The 2009 Skills List included 82 countries, and the 2024 Skills List includes 45 countries.  The 2024 Skills List applies retroactively so J-1 Exchange Visitors who were subject to the two-year foreign residence requirement based on the Skills List are no longer deemed subject.  This means they will now be eligible to file a change of status request in the U.S., obtain an H or L nonimmigrant visa, and/or apply for U.S. permanent residence.  It is important to note that if a J-1 Exchange Visitor is subject to the two-year requirement based on government funding or because of J-1 status as a foreign medical graduate they continue to be subject under the revised Skills List.  If a J-1 Exchange Visitor is uncertain as to whether they are subject, they can request an Advisory Opinion from the Department of State Waiver Review Division.

The U.S. Department of Homeland Security (DHS) is increasing filing fees for certain applications.  The premium processing (expedite) fees will be increased effective February 6, 2024.  DHS published a separate rule on January 31, 2024, which increases filing fees for a number of petition and application types, including H-1B petitions, O-1 petitions, I-140 immigrant visa petitions and OPT work authorization applications.  The agency issued a set of FAQs about the new fee rule on their website.

On May 11, 2023 the Student and Exchange Visitor Program (SEVP) issued a Broadcast Message announcing the termination of its COVID-19 guidance and issued an updated FAQ.  The FAQs make clear that students in F-1 status may not take classes online while outside the U.S. and maintain an active F-1 SEVIS record.  The FAQs also confirm that F-1 students with OPT and STEM OPT may continue to engage in remote work for their U.S. employer as long as they remain in compliance with the regulations, and that for STEM students the SEVIS record and Form I-983 must be updated with the remote work address. 

Effective April 27, 2023 the U.S. Department of State is allowing the digital signing and electronic transmission of Form DS-2019.  The Form DS-7002 for the J-1 student intern category may also contain a digital signature.  The agency posted a set of FAQs on the Bridge USA website. 

On March 28, 2023 the Department of State published a final rule in the Federal Register increasing consular processing fees for certain nonimmigrant visa applications.  Consular fees for F and J visa applications will increase from $160 to $185, and H-1B and O-1 applications will increase from $190 to $205.

The U.S. Department of State has published a new rule that, effective April 27, 2023, will allow digital signing and the electronic transmission of Form DS-2019 for J-1 Exchange Visitors and their J-2 dependents.  The new rule will require that program sponsors sign paper forms in ink or sign using digital signature technology as defined in the rule.

On March 6, 2023 USCIS announced the expansion of premium (expedited) processing for certain F-1 OPT and STEM OPT extension applications.  The premium processing fee is $1500, in addition to the standard application filing fee.  USCIS will adjudicate the application within 30 days of receipt.  USCIS will accept the online Form I-907 premium processing request in 2 phases:  1. Beginning March 6, 2023 for students with pending I-765 OPT and STEM OPT applications; and, 2. Beginning April 3, 2023 for students with new OPT and STEM OPT applications.  It is important to consider current USCIS processing times before deciding whether to request premium processing. 

USCIS announced that beginning in March 2023 the agency will expand premium processing to F-1 students applying for OPT and STEM OPT who have pending I-765 applications.  Beginning in April premium processing will be available for initial OPT and STEM OPT applications. 

The USCIS rule expanding premium processing stated that the premium processing fee would be $1500, in addition to the standard application filing fee, and that processing would be within 30 days of receipt.  Note that premium processing is optional. 

USCIS has not yet announced the dates when premium processing will become available.

On May 4, 2022 USCIS announced it will extend the automatic 180-day work authorization extension for EAD renewal applicants to 540 days for a temporary period.  The automatic extension time is counted from the expiration date of the EAD card.  This change is due to the lengthy processing times for EAD renewals, which caused many EAD renewal applicants to have to stop working while awaiting issuance of their new EADs.  The extension provision ends on October 26, 2023, so any renewal applications filed/received after that date will be subject to the standard 180-day automatic extension period.

On April 19, 2022 Department of Homeland Security's Immigration & Customs Enforcement Agency (ICE) and Student and Exchange Visitor Program (SEVP) published a Special Student Relief (SSR) notice for Ukrainian students in the Federal Register.  SSR is an immigration benefit that allows eligible students to enroll in a reduced courseload, and to receive authorization for on or off-campus work authorization beyond the standard regulatory limits.   The publication includes the criteria for SSR eligibility.  Eligible students must apply for an be granted SSR before they can begin to take advantage of this temporary benefit. 

In addition to Ukraine, SSR benefits are currently in place for students from several other countries experiencing crises, including Burma/Myanmar, Haiti, Hong Kong, Somalia, Sudan, South Sudan, Syria, Venezuela and Yemen.  A helpful summary of SSR and links to the specific SSR programs for each country can be found on the NAFSA website.

Also included in the April 19, 2022 Federal Register publication was the USCIS announcement of Temporary Protected Status (TPS) designation for citizens of Ukraine.  The TPS designation allows eligible Ukrainian nationals who have continuously resided in the U.S. since April 11, 2022 and who have been physically present since April 19, 2022 to apply for TPS. The designation period is for 18 months, from April 19, 2022 to October 19, 2023.  TPS is a limited form of relief designed to help individuals whose countries are experiencing emergency situations such as natural disaster and war.  When a country is designated for TPS by the Department of Homeland Security, eligible citizens from that country can apply for the benefit to USCIS, which includes work authorization. 

There are currently 12 other countries with TPS designation, including Burma/Myanmar, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Venezuela and Yemen. A helpful summary of TPS and links to the specific TPS programs for each country can be found on the NAFSA website.

On April 18, 2022 the Student and Exchange Visitor Program (SEVP) updated it's COVID-19 guidance for the Academic Year 2022-23 by stating that the agency would extend the guidance originally issued in March 2020.  The guidance provides certain flexibilities in the regulations based on COVID-19 public health concerns, allowing international students in F-1 status to enroll in a hybrid course of study if that is what the school is offering due to COVID-19.  Outside of this temporary guidance, the standard F-1 regulations include the non-COVID rule that limits a student to a maximum of one online course to meet the full course of study requirement for maintenance of F-1 status.

While Dartmouth students engaged in hybrid courses of study under this guidance from March 2020 through Academic Year 2020-21, Dartmouth resumed in-person studies for Academic Year 2021-22, and plans to continue in-person studies in Academic Year 2022-23.

On March 29, 2022 USCIS announced it will expand premium processing (expedited processing) to additional benefits applications, and will be establishing internal cycle time goals to reduce existing backlogs in case processing.  Applicants filing Form I-539 for a change or extension of status, and Form I-765 for an EAD, as well as certain I-140 immigration visa petition applicants, will be able to pay an additional filing fee in order for the application to be adjudicated faster.  A Final Rule was published in the Federal Register, effective May 31, 2022, but no implementation dates have been confirmed.  USCIS plans to begin a phased implementation. OVIS will continue to provide updates as to when premium processing will be available for these applications.

On March 18, 2022 U.S. Customs and Border Protection (CBP) announced in the Federal Register that it will no longer issue paper I-94 records of arrival at land ports of entry, and will issue only electronic I-94 records except in limited circumstances and "upon request if feasible."  CBP began automating I-94 records for travelers entering the U.S. by air and sea in 2016, but continued to issue paper I-94 records at land ports of entry. 

On March 15, the Department of Homeland Security announced Temporary Protected Status (TPS) for Afghanistan for a period of 18 months.  The TPS designation will not go into effect until a notice is published in the Federal Register.  TPS will only apply to individuals who were already residing in the U.S. on March 15, 2022 and meet the other requirements for TPS.  The Federal Register notice will provide instructions for applying for TPS.  OVIS will update our website as new information becomes available.

The U.S. Department of State has updated its website with information on visa and other immigration options for citizens of Ukraine, including Humanitarian Parole and Refugee status. 

Additional external resources for affected students and scholars can be found on the NAFSA website and the Presidents' Alliance on Higher Education and Immigration website.

Prior to the situation in Ukraine, the U.S. Department of State announced that consular posts in Kazakhstan, Serbia and Armenia would be designated visa processing posts for F and J visa applications of Russian applicants.  OVIS is not aware of any change in these designations resulting from the Russian attack on Ukraine. We will provide updates as they become available.

On March 3, 2022 the Department of Homeland Security announced the designation of Ukraine for Temporary Protected Status (TPS) for a period of 18 months.  In order to be eligible for TPS, students must have continuously resided in the U.S. since March 1, 2022.  The announcement stated that the TPS designation will go into effect upon publication in the Federal Register, and instructions for applying for TPS will be in that notice.  OVIS will continue to provide updates as they become available.  Additional background on TPS can be found on the NAFSA website. 

The situation in Ukraine is fluid and information is constantly changing.  The U.S. Department of State website has information related to consular and border closures impacting Ukraine and Russia.  Some countries, including Poland and Slovakia, are relaxing immigration requirements for entry by Ukrainian citizens.  There are travel advisories and alerts in place for any travel to the region.   The U.S. Dept of the Treasury has imposed sanctions against Russia, including actions against some of the country's largest financial institutions.  OVIS and our campus partners continue to monitor the escalating situation, and will provide updates as they become available.

Beginning January 22, 2022, the Dept of Homeland Security announced it is requiring non-U.S. citizens and permanent residents entering the U.S. by land or ferry for all purposes, including "essential" travel such as work or school, to provide full proof of COVID vaccination status. 

On December 23, 2021 the U.S. State Department announced that the agency, in consultation with the Department of Homeland Security, authorized consular posts abroad to waive in-person visa interviews, at their discretion, for applicants in certain visa categories, including F, J, H and O.  Applicants must be applying at consulates in their home countries or countries of residence, and who either were previously issued any type of visa and have not been refused a visa, or who are a citizen of a Visa Waiver country who has previously traveled to the U.S. on ESTA.  According to the State Department's Foreign Affairs Manual, the policy does not include citizens of China who are applying for F or J visas.  The policy is in effect until December 31, 2022.

Beginning November 8, 2021, nonimmigrants who are full vaccinated against COVID will be able to cross the land borders with Canada for non-essential purposes (tourism).  Travelers coming to the U.S. for essential travel are not required to be vaccinated at this time, but beginning in January 2022 all foreign nationals crossing U.S. land ports-of-entry, for essential or non-essential purposes, will be required to be fully vaccinated and must provide proof of vaccination. Please refer to the U.S. Customs & Border Protection Agency website for more information. 

The U.S. Department of State announced that it is authorizing consular posts to expand the categories of F, M, and "academic J visa applicants" (students, professors, research scholars, short-term scholars, or specialists) whose applications can be adjudicated without an in-person interview, with certain exceptions.  According to the announcement on the State Department website:   "Consular officers may, if they so choose, and pursuant to local conditions, now waive the visa interview requirement for F, M, and academic J visa applicants who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility; or first-time F, M, and academic J visa applicants who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided they have no apparent ineligibility or potential ineligibility."  The expansion is through the end of 2021.