Episode 53: the year in review

It’s Dec. 14, and this is your BAL Immigration Report. Today, we look back on some of the most important business immigration stories of 2023: proposed fee hikes, domestic visa renewal and forthcoming changes to the H-1B program.

“The main change in the proposal is that USCIS would select registrations in the lottery based on the beneficiary. And that means that no matter how many companies have submitted a registration on behalf of a single beneficiary, that individual will have the same chance of being selected in the lottery as somebody else who only has one registration.”

—Steve Plastrik, BAL Senior Associate

On today’s podcast: 2023, the year in review. 2023 was the BAL Immigration Report’s first full year bringing you weekly updates from the world of corporate immigration. Today, we look back on some of the more impactful stories.

USCIS proposes significant filing fee increases

The year opened with big news when U.S. Citizenship and Immigration Services published a proposal on Jan. 4 to raise immigration filing fees by a weighted average of 40% — and more in most business categories. BAL Partner Amy Lighter joined the podcast on Jan. 5 to discuss some of the more significant changes.

“One of the biggest changes was in the H-1B world, where the H-1B cap registration fee changed pretty significantly. Since the registration was instituted a couple of years ago, that registration fee for the H-1B cap lottery has been set at $10 for single entry. And in this new fee schedule, the proposed fee is $215, a 2,000% increase in that fee. And we think that this reflects USCIS’ attempt to crack down on frivolous filings of registrations, because with the fee being that low, the barrier to entry for H-1B applicants was so low that the number of applications just skyrocketed.

“Another one that stands out is the adjustment of status fees. For many years now, there has been a benefit that goes with an adjustment of status application so that when you’re filing the adjustment of status, you can also simultaneously file applications for work authorization and for advanced parole, which is a travel authorization. And as long as you were filing those together, the fees for the employment authorization and for the travel authorization were waived so that you were just paying the fee for the I-485 form, the adjustment of status, and you got those other benefits for free as long as you filed them simultaneously. In the new fee schedule, what they’re doing is they’re adding a fee for each of those separate applications. It’s not the full fee that you would pay if you file each of them individually, but there is an increased fee if you’re filing them together.”

USCIS says the increase in fees is necessary to reestablish and maintain timely case processing. The agency accepted comments on its proposal through mid-March, with many businesses saying the government should take additional steps to improve services and reduce increases where possible. USCIS is currently in the process of finalizing its proposal. The recently published regulatory agenda indicates the Department of Homeland Security is aiming to publish the final fee rule in April 2024.

Revival of domestic visa renewals

News of the proposed fee hikes was followed shortly after by news, first published in Bloomberg Law, that the State Department was planning to revive its domestic visa renewal program. Domestic visa renewal for nonimmigrant visa holders has not been available in the U.S. for nearly 20 years.

BAL Senior Counsel Tiffany Derentz joined the podcast in February to explain why the proposal was so important.

“The State Department reviving the domestic visa renewal program means that employees will be able to apply to renew their visa in the United States rather than going abroad to a U.S. embassy or consulate. This will help cut down costs in traveling to and from a third country to apply for a visa, but it should also help alleviate other concerns or challenges that companies, their employees and their family members may have. For example, by applying in the United States, applicants don’t have to worry about getting stuck in another country for months at a time, which is something we’ve seen regularly during COVID. Employees will also be able to continue working in the United States while their visa applications are being processed. And I know that we’ve seen a number of foreign nationals that have had to take time off or switch to a different office because the visa processing has kept them abroad for lengthy periods of time.”

In October, Derentz wrote an article for Best Lawyers saying that while domestic visa renewal is a game changer, it will take time and resources for the program to reach its full potential. The State Department is expected to launch a pilot program for a limited number of H-1B visa holders in the coming weeks, with the possibility of expanding it later next year.

H-1B lottery news

The H-1B lottery also made big news this year. In April, USCIS shared data showing that it had received a record-shattering number of H-1B registrations. BAL Senior Associate Steve Plastrik joined the podcast to crunch the numbers.

“It was pretty massive. This year, there were over 780,000 registrations that were submitted, which is a 61% increase compared to last year. Another way to look at this is that any one registration had a 14.6% chance of being selected this year, and that’s only about half of what the selection rate was last year.”

In October, when USCIS published a proposed regulation to make wide-ranging changes to the H-1B program, Plastrik came back on to discuss what the proposal would mean for the lottery.

“The H-1B modernization regulatory proposal that was formally published earlier this week touches on a lot of different areas and seeks to codify some existing policies. But one central change in the proposal is reforming how USCIS runs the cap registration and lottery process for H-1B visas. The main change in the proposal is that USCIS would select registrations in the lottery based on the beneficiary. And that means that no matter how many companies have submitted a registration on behalf of a single beneficiary, that individual will have the same chance of being selected in the lottery as somebody else who only has one registration. Once a beneficiary is selected in the lottery, then each sponsoring employer that submitted a registration on their behalf into that lottery would get a notification that they are eligible to file an H-1B cap petition with USCIS.”

USCIS will continue to accept comments on its H-1B modernization proposal through Dec. 22. It remains unclear whether the changes to the lottery will be in place in time for the upcoming cap season.

Immigration to support AI, other emerging technologies

Artificial intelligence dominated the headlines in 2023, with President Joe Biden publishing an executive order on AI in October. The executive order sets new standards for AI safety and security. It also includes a call for streamlined immigration systems to ensure that the U.S. is attracting top international talent in AI and other critical and emerging technologies.

The executive order includes a host of immigration initiatives, including measures to modernize immigrant and nonimmigrant visa programs and streamline application processes. BAL Partner Michelle Funk joined the podcast in November to highlight the provisions she found most interesting.

“There are a number of proposed initiatives in the immigration space that are beneficial to our field and are actually pretty exciting. Overall, big picture, the Department of Homeland Security is instructed to review and initiate any policy changes that would improve both the temporary and permanent immigration pathways for those individuals who are experts in AI and other critical and emerging technologies. Specifically, though, the executive order calls for measures that would both attract and support individuals who are working, studying and conducting research in those fields. They’re trying to streamline and improve a number of the processes.

“The most exciting for me are the EB-1 and EB-2 paths towards permanent residence, so that would include individuals of extraordinary ability, outstanding researchers and a new fan favorite, the national interest waiver. So our firm has been doing a lot of work recently in the national interest waiver area and seeing that dovetail with the administration’s callout that this work is important. I think we’ll go a long way toward just making the process more accessible to high-skilled immigrants.”

Work on some of the measures is already underway but will continue into 2024 and perhaps beyond.

Ongoing DACA litigation

Another story to watch in 2024 will be the ongoing litigation challenging Deferred Action for Childhood Arrivals, or DACA. In September, District Court Judge Andrew Hanen ruled that a Biden administration regulation that was crafted to protect DACA is unlawful. The administration appealed. Before Hanen’s ruling, BAL Senior Counsel Martin Robles-Avila joined the podcast to provide analysis on how 2023 Supreme Court rulings in U.S. v. Texas and Biden v. Nebraska could affect the case as it moves through the federal courts.

“United States v. Texas stands for the proposition that prosecutorial discretion is still alive and well. While the court did not actually say that Biden’s policies were legal, in fact, it took no position at all on the issue because it found that Texas and Louisiana were not the proper parties to bring the case. But at its core, the DACA program is really little more than an intelligent and efficient way of exercising prosecutorial discretion. Rather than going out into the streets and adjudicating prosecutorial discretion requests on a retail, case-by-case basis, DACA allows for the streamlined exercise of discretion on a mass scale. And in that way, it was both innovative and transformational.

“There’s really no reason why the administration should be forced to undertake only inefficient procedures for exercising discretion, which is in any event inevitable and necessary given budgetary constraints. Congress has never sufficiently funded the agency to be able to arrest and deport everyone here in violation of immigration law, nor should it. The message from the high court’s U.S. v. Texas decision is that direct injury really matters and that some of the prior theories for state standing may no longer work. To be sure, Judge Hanen’s opinion just got a lot longer and a lot more difficult to write, and that’s a plus for those who support DACA because, first of all, it means there’s more opportunities for Judge Hanen to make mistakes in his decision, but also, both of these opinions set up the possibility of the Supreme Court justices forging new alliances or coalitions when the case reaches the high court. Even if a majority of the court believed under the rationale in Biden v. Nebraska that President Obama overstepped statutory authority when he created DACA over 11 years ago, if the majority of the justices find that the states lack standing to challenge it, DACA lives to fight another day. Remember that in the United States v. Texas, the court never reached the question of the legality of the enforcement priorities because they shut the case down at standing.

“There’s an old adage that sounds a little bit better in Spanish — Todo puede pasar — anything can happen, everything is possible. The U.S. v. Texas decision was an eight to one majority, with only Justice Alito dissenting. Might there be a way for at least five justices to find that the red states, spearheaded by Texas, lack standing to challenge DACA? Todo puede pasar.”

U.S. news roundup

• USCIS announced there would be no third H-1B lottery this fiscal year.
• President Biden issued a proclamation designed to bar foreign nationals enabling corruption from entering the U.S.
• The State Department published the January Visa Bulletin, showing advancement in some key employment-based categories

Global news roundup

• China announced it would lower visa fees in a bid to boost tourism and business.
• China and Singapore reached a visa-free travel deal that is expected to be implemented early next year.
• Ireland will issue travel confirmation notices to some non-EU/EEA nationals to facilitate holiday travel.

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.