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It’s Feb. 9, and this is your BAL Immigration Report.
“So I think the first step in planning for companies is to identify individuals that we typically call ‘last chancers.’”
—Ruth Clark, BAL Partner
The U.S. Court of Appeals for the D.C. Circuit declined to reconsider a case challenging the legality of Optional Practical Training, or OPT. OPT allows F-1 students who graduate from a U.S. university to work in the United States for 12 months in their field of study — and for an additional 24 months if they have a degree in science, technology, engineering or mathematics — or STEM.
A three-judge D.C. Circuit panel upheld the legality of OPT and STEM OPT in October. The plaintiffs in the case, the Washington Alliance of Technology Workers, asked for an “en banc” hearing before the full D.C. Circuit, but the Circuit declined the request. They now have the option of appealing to the U.S. Supreme Court, though there is no guarantee the high court would hear the case.
Business and trade organizations have shown strong support for OPT programs, saying they help employers fill persistent vacancies, especially in STEM jobs.
U.S. Secretary of Labor Marty Walsh is poised to leave the Biden administration, according to reports in several media outlets. As the Secretary of Labor, Walsh oversaw labor certification and attestation programs. These programs are generally designed to ensure that the admission of foreign workers into the U.S. does not adversely affect the job opportunities, wages and working conditions of U.S. workers.
Walsh is the son of immigrant parents and recently advocated for reforming the U.S. immigration system to stay competitive with other countries. He is reportedly leaving the administration to run the National Hockey League Players’ Association. The White House has not yet provided a timetable for nominating a permanent replacement.
A conversation with BAL Partner Ruth Clark: H-1B cap season and the importance of planning for H-1B alternatives.
BAL Immigration Report: Cap registration is just weeks away. We checked in with Ruth Clark, a partner in BAL’s Houston office, to ask what she’s hearing.
Clark: A lot of my clients have been asking me what other companies are doing. There’s been a lot of headline news about layoffs with a lot of companies that typically have a lot of individuals that they are putting through in the H-1B cap. The question is: If those companies are having layoffs, does that mean that we’re typically going to be seeing lower numbers of individuals being put in the registration, so maybe we’ve got a better chance of having our H-1Bs be selected? Even with some of the companies that are having these very public layoffs, we’re still seeing that H-1B planning and demand is typically pretty high. Some of the companies that we represent, they may not be increasing the number of individuals that they’re putting into the H-1B registration, but they’re not necessarily having much lower numbers. We also have companies that aren’t being affected by layoffs, and we’re seeing that their registrations typically are growing every year.
BAL: Last year, U.S. Citizenship and Immigration Services received nearly 484,000 H-1B registrations for just 85,000 cap-subject visas. Clark said companies are becoming more comfortable with the registration process, which was first implemented in 2020.
Clark: We’ve been in this new USCIS registration lottery system for several years now. In the beginning, people were concerned: Will the website crash? Will we end up having to file all of these H-1Bs in a very short period of time like we used to have to do in the old system? So companies were paying the legal fees to prepare the H-1B in full or in part before the selections were announced. Now that we’ve been in the system for several years, there’s a lot more comfort in the timing and knowing we can just go ahead and submit people in the registration and not prepare anything for them. So the fees are a lot lower.
We’re also seeing the USCIS fee proposal that is coming out, and registration is going to cost a lot more potentially in the coming years. I think companies are also taking advantage of the low cost for registration while they can.
BAL: With several factors pointing toward another high-volume cap season, planning for H-1B alternatives is as important as ever — especially for employees whose work authorization is running out.
Clark: So I think the first step in planning for companies is to identify individuals that we typically call “last chancers” — those are individuals whose work authorization will expire before they have a chance to be in next year’s cap lottery. Identify those people so that you know what you’re working with and start those conversations with managers and employees to set those expectations and start the planning process to see if there’s a business need, if there’s a business ability to employ them at an affiliate or parent company outside of the U.S. so that they can essentially get one year of experience and maybe come back in L-1 status. This does take a lot of advanced planning because there may not be opportunities in the country where the individual is from, and so they may need a visa to work in another country where you have operations.
BAL: Asked if she had any final cap season reminders, Clark said it is important for in-house immigration professionals to be in touch with their company’s talent acquisition teams to make sure that all H-1B eligible workers are registered.
Clark: For any cap year, we want to get as many people as possible in the lottery, especially if they might have several chances at being in the lottery. We try to get them in as early as we can because it might take several rounds of being put in the lottery.
Switzerland has relaxed work permit rules for highly skilled non-European Union nationals. The changes apply to jobs in the country’s skills shortage list, including certain managerial work and positions in science, technology, engineering, math, healthcare and teaching. Employers are no longer required to conduct labor market tests in most cases, and highly skilled non-EU national workers can obtain a residence permit without having a university degree. Instead, they can show training qualifications or five years of professional experience.
The United Arab Emirates has extended the deadline for employers to convert unlimited-term employment contracts to limited-term employment contracts. The deadline, previously set for Feb. 1, has been pushed back to Dec. 31 of this year. The Emirati government has said it is pushing for the change to limited-term contracts to enhance flexibility and competitiveness for private sector companies and to safeguard employee rights.
Foreign nationals holding a Hayya card from the 2022 FIFA World Cup can use it to visit Qatar through Jan. 24, 2024. Qatari authorities extended the validity of Hayya cards to encourage more tourist travel in the coming year. Cardholders may bring up to three family members or friends with them for their visit. They must register their lodging through the Hayya web portal as well as have a passport with three months’ validity, health insurance and a return ticket. Paid business activities are not permitted by individuals who enter Qatar with the card.
Follow us on X, and sign up for daily immigration updates. We’ll be back next week with more news from the world of corporate immigration.
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