Episode 52: Domestic visa renewal, holiday travel, new H-2B strategies

It’s Dec. 7, and this is your BAL Immigration Report:

• The state department’s domestic visa renewal pilot program takes shape.
• Foreign nationals prepare for a busy holiday travel season.
• A look at how the Biden administration’s approach to supplemental H-2B visa allocations are changing employer strategies:

“You just have to really be mindful as a new H-2 employer of the long game. It can be a great program that can work with you if you’re willing to see the big picture and see it out year after year after year.”

—Ashley Foret Dees, Partner

U.S. News

Domestic visa renewal pilot program

The State Department’s domestic visa renewal pilot program is coming into focus. In a briefing last week, State Department deputy assistant secretary Julie Stuft indicated the pilot would initially be open to about 20,000 H-1B visa holders and will kick off this month or early in 2024. The pilot could be expanded to include additional categories later next year.

BAL senior counsel Tiffany Derentz told Forbes that the State Department is taking a thoughtful approach by starting small. “The last thing they want is for the pilot to fail,” Derentz said, “which means they can’t have a lot of problems right out of the gate.”

The State Department is expected to provide additional details in a Federal Register notice in the coming weeks. BAL will provide updates as information becomes available.

Foreign nationals prepare for holiday travel

Many foreign national employees are gearing up for a busy winter travel season. Travelers should be sure to double-check passport and visa validity and should anticipate delays if planning to renew a visa while abroad, including the possibility of delays associated with administrative processing.

Travelers may also wish to visit the State Department’s travel advisory website ahead of departure for detailed information about potential concerns at their destination. A complete list of winter travel reminders is available here.

U.S. news roundup

• The 9th Circuit Court of Appeals ruled against a group of Indian green card applicants in one widely watched case.
• The Department of Labor posted updated PERM and prevailing wage determination processing times.
• BAL experts will take a deeper dive into the proposed H-1B modernization rule at a BAL community event next week.

Spotlight

Q&A with BAL partner Ashley Foret Dees: Additional H-2B visas and employer strategies

Last month, the U.S. government published a regulation to make nearly 65,000 additional H-2B visas available, nearly doubling the allotment for this fiscal year. Nearly 45,000 of those visas will be available for returning H-2B workers. The remainder will be reserved for new or returning workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti and Honduras.As with last year, nearly half of the visas for returning workers will go to workers with start dates between now and March 31.

Q: How is this regulation beginning to change the strategy used by some H-2B employers?

A: One thing that is happening is that many employers have a fall date of need and an early spring date of need. We see this in a lot of seafood processing. We see this with landscapers in the southern U.S., where historically their peak in the contracts they take on start early in the year, maybe January, February or March, but because of the way the visa allocations are, where you have your Oct. 1 visas historically being taken up by the fall employers, and then you have your April 1 visas being taken up very quickly in April. A lot of times, those early spring start dates, those employers find themselves having to push back to an April 1 start date or kind of out of the loop on the H-2B program. So this fall release, this first half of the fiscal year release, is really helpful to those employers who do have a peak in February or March, and we are looking to file for those returning worker visas or the specific country allotment visas for those employers so they can get back to their true seasonal or true peak need, which might start in February or March, versus waiting for that April lottery cap, which is after their true start date.

Q: Are there any downsides to applying for supplemental visas early rather than waiting for the lottery for H-2B workers with a start date of April 1 or later?

A: In all aspects of H-2B, it’s hard to predict how many employers will file before you. We can look at how many petitions the Department of Labor receives, though there’s no way to predict that ahead of time. And so if you are an employer that’s hoping to get in on the last part of the first half returning worker visas — that would be for a March start date, for example — we’re moving forward with that right now. We’re keeping an eye on the cap, and we’re keeping an eye on if Department of Homeland Security releases how many petitions they receive and where the count is. That really helps us because if those numbers are taken up, then those employers do have to wait and compete in the April 1 lottery.

Each year, we look at how many people file for that Oct. 1 start date, and that gives us an idea of how many people might also be competing for those later fall dates, which would take up the returning worker visas. So it can be hard to predict each year because it’s hard to predict the growth in the H-2B program and how many employers might be filing for what dates of need.

Q: Strategies are different for long-time and new H-2B employers. How does the addition of new countries — Colombia, Costa Rica and Ecuador — in the supplemental visa allotment helps those who are new to the program?

A: The supplemental visas that we have been seeing for the last several years are reserved predominantly for returning workers, which is a great benefit to employers who have been in the program for a while because they often want to bring back the workers who they know, the workers who they have trained, they want to bring back their workforce. And so if you are a returning H-2B employer and you’re filing in the April lottery, for example, and you don’t make it, you know you have a chance potentially at the second bite of the apple for one of the returning worker visas, depending on where you fall in the in the lottery. But you always have that second bite at the apple as a returning employer if you’re wanting to bring back your returning workers. So that’s one of the strategies we talk about with new H-2 employers who do not have a workforce.

And it might be difficult to find returning workers, not impossible, but it’s difficult to find a returning worker to come work for you who’s not already committed to another employer. So we talk upfront about these country-specific allocations. We help employers locate recruiters and people they need to have in their wheelhouse to help them recruit from one of the country-specific allocations. For example, Costa Rica is new this year. Are they willing to work with a recruiter from that country and locate workers there so that they could bring in employees under that country-specific allocation if they don’t do well in the initial lottery? The initial lottery is always open for new and returning workers from a very long list of eligible countries.

If you don’t make that, then as a new H-2B employer, many times, your second bite of the apple is really just for those country-specific allocations. I’ll always tell employers, if you really specifically want a new employee from a country that’s not in the country-specific allocation and you don’t make it in that initial lottery, it might take you several years to get into that initial lottery. And then you will have returning workers later once you do initially bring those people in. And so you just have to really be mindful as a new H-2 employer of the long game. It can be a great program that can work with you if you’re willing to see the big picture and see it out year after year after year.It can be a very frustrating program if you just want to apply one year for the lottery, and then you’re out. Really, the way to think about it is getting into H-2 knowing that you’re going to have some frustrating years but that you’re committed to doing it for several years. Then you can really have the benefit of that returning worker lottery.

Q: Overall, the H-2B program continues to grow in popularity. Do you see that changing anytime soon?

A: I think it’s going to be a busy fiscal year, and I think it’s going to be a very busy season for H-2Bs. We saw an increase of filings for the Oc. 1, 2023, start dates. And so I would expect that we also see an increase in filings for the April lottery. So we’ll see how things go.

Global News

Plans to drastically cut net migration to the UK next year

In the United Kingdom, the government announced plans to cut immigration by 300,000 people a year.

The plan entails raising the minimum salary employers must pay to foreign workers by nearly 50%. Employers also will no longer be permitted to pay overseas workers less than U.K. employees in shortage occupations, and foreign healthcare workers will no longer be allowed to bring their families with them via the care worker visa route.

Critics of the plan say it will raise employment costs and exacerbate labor shortages.

Extension of visa-free travel to China from select countries

The Chinese government announced the extension of visa-free travel to six countries. Citizens of France, Germany, Italy, Malaysia, the Netherlands and Spain may now enter China without a visa for up to 15 days for business tourism, family visit or transit purposes.

China reported an increase in travelers from these countries in just the first few days after the policy was enacted.

The waiver will be available on a trial basis through Nov. 30, 2024.

New visa portal for entering Brazil from select countries

And finally, in Brazil, officials have introduced a new visa portal for nationals of Australia, Canada and the United States. Beginning Jan. 10, 2024, citizens of these countries will require an e-visa to enter Brazil.

Officials advise travelers to apply for e-visas as soon as possible to avoid possible delays. Australian, Canadian and U.S. nationals who already have a valid physical Brazilian visa do not need to apply for the new e-visa.

Global news roundup

• The Netherlands announced increased salary thresholds for foreign workers.
• The government of Peru announced plans for a digital nomad visa.
• The Portuguese government extended the validity of some visas and other immigration documents.

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