Employment & Labor Insider

The U.S. Department of Homeland Security has issued an interim final rule that would allow U.S. Citizenship and Immigration Services to require electronic filing of immigration petitions and applications.

The rule does not require electronic filing immediately. For now, employers and foreign nationals should continue following the current filing instructions for each form.

Under the rule, which amends 8 C.F.R. § 103.2(a)(1), if a form has been available for optional electronic filing for at least 180 days, USCIS can make electronic filing mandatory after the end of that 180-day period.

Before USCIS stops accepting paper versions of a particular form, the agency must also do the following:

• Announce that electronic filing will become mandatory for the form or a specified filing category.
• Provide at least 60 days’ notice on the USCIS website, including the date on which paper filings will no longer be accepted.

USCIS has the option to phase in the requirement based on the applicable form, immigration classification, eligibility category, or type of request. For example, electronic filing could become mandatory for one eligibility category submitted on a particular form while remaining optional or unavailable for other categories using the same form.

No immediate change to filing procedures

Although the interim final rule became effective upon publication, it does not identify any form that must immediately be filed electronically.

USCIS cannot even begin to require electronic-only filing until it completes the federal approval process for the new e-filing waiver form, which is discussed below. The approval process includes considering public comments, publishing an additional notice in the Federal Register, and obtaining approval from the Office of Management and Budget.

In other words, paper filings are continuing to be valid. Any change will be announced separately by USCIS with at least 60 days’ notice.

Forms that may be affected

USCIS currently permits electronic filing of several commonly used immigration forms, either through a guided online process or through its PDF Intake system, which allows a filer to upload a completed pdf form and supporting documentation through a USCIS online account.

Forms currently available in at least some electronic format include the following:

• Form I-129, Petition for a Nonimmigrant Worker
• Form I-140, Immigrant Petition for Alien Workers
• Form I-907, Request for Premium Processing Service
• Form I-539, Application to Extend/Change Nonimmigrant Status
• Form I-765, Application for Employment Authorization
• Form I-130, Petition for Alien Relative
• Form I-131, Application for Travel Documents, Parole Documents, and Arrival/Departure Records

The availability of electronic filing does not necessarily extend to every classification or filing scenario covered by a form. USCIS will need to specify which filings are subject to each future mandate.

What happens if someone cannot file electronically?

Again, paper filings are still permissible at this time.

The interim rule creates a “Form I-936, Request for Waiver of E-Filing Requirement.” Once mandatory electronic filing takes effect for a particular form, the person or entity seeking permission to submit a paper filing would first have to file Form I-936, pay a $25 fee, and provide evidence showing that electronic filing would cause undue hardship.

USCIS will evaluate waiver requests individually, considering such factors as the requestor’s location, financial circumstances, and access to technology; and the availability of internet access through libraries, community centers, friends, or family. Merely being unfamiliar with the USCIS online system, or not having an existing online account, will generally not be sufficient.

According to the DHS, individuals who are represented by counsel, and business entities generally, are not expected to qualify for waivers because they ordinarily have access to the necessary technology and professional assistance.

The following additional provisions apply to waiver requests:

• A separate Form I-936 generally must be filed for each form and each person seeking a waiver.
• An approved waiver generally will be valid for only 30 days.
• Requesting a waiver does not preserve a filing deadline, priority date, or place in line.
• USCIS must receive the actual paper filing during the period that the waiver is in effect.
• Approval of the waiver does not guarantee acceptance of the underlying petition or application, which must still satisfy all filing requirements.

What employers should do now

Nothing is changing immediately. However, employers should prepare for most employment-based filings—including Forms I-129, I-140, and I-907—to eventually become subject to the mandatory electronic filing requirement.

Employers should continue coordinating filings through immigration counsel and should not independently create or submit cases through organizational USCIS accounts unless instructed to do so. Electronic filing systems require careful coordination between the employer, foreign national, and legal representative to ensure that signatures, supporting evidence, filing fees, and account access are properly managed.

Once USCIS satisfies the requirements related to making electronic filing mandatory, a paper filing submitted without an approved waiver may be rejected. This can be especially significant when a petition is subject to a filing deadline, status-expiration date, or other time-sensitive requirement.

We will continue monitoring USCIS announcements and provide updates as mandatory electronic filing dates are established.

Employers who are interested in filing eligible petitions or applications electronically before or after electronic filing becomes mandatory should contact any member of Constangy’s Immigration Practice Group.