Episode 72: Another Supreme Court immigration case, BAL’s big announcement, H-1B registration lottery data

It’s May 2, and this is your BAL Immigration Report.

• The U.S. Supreme Court agrees to hear another immigration case.
• BAL makes a big announcement.
• What new U.S. Citizenship and Immigration Services data tells us about this year’s H-1B registration lottery.

“The selection rate is already a little bit higher than last year, but we don’t know yet whether USCIS will need to run a second lottery round this year, which would increase the selection rate even more.”

—Steve Plastrik, BAL Senior Associate

U.S. news

Supreme court to hear second immigration case

The U.S. Supreme Court has agreed to hear another immigration case related to visa determinations for foreign national spouses of U.S. citizens. Last week, the court heard a case regarding if the government must provide due process when denying the visa application of a U.S. citizen’s foreign spouse.

The new case involves the revocation of a foreign national’s visa petition after the Department of Homeland Security determined his marriage to a U.S. citizen was a “sham.” The justices will decide whether the Eleventh Circuit Court of Appeals was right in determining that it lacked jurisdiction to review DHS’ visa revocation. The court’s decision could have broad implications for both family- and employment-based visa petitions.

BAL welcomes new partners

BAL made big news this week, announcing the leadership and core team members from Seyfarth Shaw’s immigration practice will join BAL this summer. As part of the transition, BAL will open an office in Atlanta, its 13th office across the United States. BAL Managing Partner Frieda Garcia said the decision is important to BAL for several reasons.

“I’ve been at BAL for 23 years and, in that time, I’ve seen BAL grow and evolve. And everything, every action that we take like this, is intended to strengthen what the firm stands for and everything that we deliver.”

Joining BAL are six Seyfarth Shaw partners: Russell Swapp, James King, Gabriel Mozes, Sharon Cook, Michelle Gergerian and Jason Burritt.

“The core members of Seyfarth Shaw’s immigration practice who you just mentioned are a terrific group of people. They are recognized industry leaders. Frankly, their joining forces with BAL creates a powerhouse of legal knowledge for us, from innovation to customer service, that isn’t really out there in the industry. I believe that Russ, Jim and Gabe elected to join BAL. This was in part for the recognition of our business model that we have in place at BAL — the collaborative approach and not franchised approach, and a customer-centric approach — meaning that all of our operations and technology and investments are designed to deliver exceptional service. As an immigration firm, everything that we do is geared towards improving the immigration service delivery — and frankly, we believe that’s going to deliver the best outcomes for our clients and our employees.”

Frieda said the opening of a new Atlanta office will help position BAL in the market.

“As we look at the country and where the dots of the map are, the southeast part of the country was one that we had a focus on for quite some time. The team anchoring the Atlanta office will definitely cement and fortify our commitment to this market in this region.”

U.S. news roundup

• The Department of Labor published a 600-page regulation this week, aiming to target “vulnerabilities and abuses” in the H-2A visa program.
• USCIS updated an FAQ on recent fee increases, reminding employers that they must provide the correct fee for their petitions to be adjudicated.
• A bipartisan group of senators urged DHS to provide legal clarity for international college athletes participating in name, image and likeness activities.

Spotlight

A conversation with BAL Senior Associate Steve Plastrik: new USCIS data and what it says about this year’s H-1B lottery.

BAL Immigration Report: On Tuesday, the agency released statistics showing a dramatic drop in the number of H-1B registrations this year, even as demand for H-1B visas remains high. Steve Plastrik, a senior associate on BAL’s Government Strategies team, joined the podcast to help us dig through the numbers — and tell us what they say about how well USCIS’ new H-1B selection procedures worked. We started by asking him how significant the drop was — and the primary reason for it.

Plastrik: The drop in the total number of registrations was really significant this year. To put some numbers to it, the total number of eligible registrations decreased by 38% compared to last year. The overall increase in registrations that we’ve seen for previous years ended this year, and the number of eligible registrations is actually similar to where it was two years ago, which is a big change in the trends. The primary reason for this was a huge drop in the number of individuals who had more than one registration submitted on their behalf by different sponsoring employers. The number of registrations for individuals with more than one sponsoring employer decreased by 88% compared to last year.

The reason we’re seeing this is because of the way USCIS changed how it runs the selection lottery by ensuring that each foreign national beneficiary can only be selected once in each lottery, regardless of the number of registrations that sponsoring employers have submitted for them. This reduced the incentives for individuals to try and game the system and increase their odds of selection in previous years by getting as many employers as possible to sponsor to them.

BAL: We asked Plastrik whether the drop in registrations translated to better odds of being selected in the lottery.

Plastrik: This really was a big question heading into this year’s new selection process: Would the changes mean a higher selection rate? This year, we did see a higher selection rate in the initial lottery round. Foreign national beneficiaries had around a 26% chance of being selected this year. This is a bit higher than the initial lottery round last year but actually comparable to the overall selection rate from last year after USCIS conducted a second lottery round. So the selection rate is already a little bit higher than last year, but we don’t know yet whether USCIS will need to run a second lottery round this year, which would increase the selection rate even more.

BAL: Under the new rules, beneficiaries selected in the lottery will get to choose among employers if more than one employer submitted a registration on their behalf. Plastrik says this poses challenges for employers, though it may be a relatively uncommon challenge.

Plastrik: This was a big question that a lot of employers had when USCIS proposed these changes to the selection process. If a foreign national beneficiary is selected in the lottery and has four employers sponsoring them in the H-1B cap, how can those employers know if other sponsoring employers plan to file an H-1B petition for that beneficiary and if there’s competing employment offers out there for same for national employees? So the data that USCIS released shows that this was an issue for some employers but doesn’t appear to be something that was super common.

In the data, USCIS put out the number of beneficiaries who were selected, and then also the number of registrations that were selected as corresponding to those beneficiaries. And the difference there is around 6,000, meaning that there were about 6,000 registrations for people who had multiple registrations who were selected in the lottery. Overall, it doesn’t seem as though there’s a huge set of companies that are falling into this, but it still is something that companies have questions about how to handle.

BAL: As is the case most years, many are wondering whether there might be a second H-1B lottery. Plastrik says it’s possible but not a guarantee.

Plastrik: Ultimately, I think we just have to wait and see whether USCIS opens up the second lottery. It’s possible that in this year, as they get used to the new beneficiary-centric selection process, they played it a little conservative and selected a low number of beneficiaries to see how many would actually file an H-1B petition and leave room for them to open up a second round of the lottery later in the summer to help them meet their quota if they don’t reach that based on the initial selections. So stay tuned.

Global news

Canada ends temporary student work policy

The Canadian government has ended a temporary policy that allowed foreign students to work more than 20 hours a week off campus. The policy was originally adopted in 2022 to help alleviate labor shortages and was extended last year through April 30. The government decided against extending the policy further. Instead, a new measure allowing students to work up to 24 hours per week off campus will be enacted in the fall. Foreign students on academic break during the summer may continue working unlimited hours until school resumes.

Thailand proposes joint visa program

In Thailand, the government is leading an effort to create a six-nation joint visa program. According to a report from Bloomberg, proposed member nations include Cambodia, Laos, Malaysia, Myanmar, Thailand and Vietnam. The program would create a single visa to enter these countries and facilitate open travel among them, similar to Europe’s Schengen area. The effort is part of a greater push by Thailand’s prime minister to attract more tourism to his country and the region as a whole.

Global news roundup

• The Ukrainian government has suspended consular services for military-age male nationals living abroad.
• The European Union moved to tighten visa rules for nationals of Ethiopia.
• Australian authorities announced that the Pacific engagement visa will open its first ballot on June 3.

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