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The business community shows support for Dreamers. The Biden administration announces additional H-2B visas. And more on the role immigration could play in the development of AI in the United States.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The Department of Homeland Security has published lists of countries whose nationals will be eligible for the H-2A and H-2B visa programs in the upcoming year.
Key Points:
Additional Information: The countries whose nationals are eligible for the H-2A and H-2B visa programs are as follows:
*Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.
**Paraguay is eligible to participate in the H-2A program but is not eligible to participate in the H-2B program.
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The White House calls for streamlined immigration policies for AI workers. A temporary policy that provided longer automatic extensions of employment authorization documents has expired. And the Major League Baseball playoffs highlight a trend involving visitors from Venezuela.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
H-2 visas enable U.S. businesses to hire foreign nationals for temporary or seasonal employment. Learn more about the different H-2 visa types and how BAL legal experts deliver a proven approach to support temporary staffing opportunities.
The H-2A visa program allows a U.S. employer or agent to bring foreign nationals to the United States for temporary or seasonal agricultural jobs. The foreign national must have a standing offer of employment to qualify for an H-2A visa, and their prospective employer must meet certain regulatory requirements. If all legal requirements are met, the employer may petition the U.S. government to initiate the H-2Aprocess for the foreign national worker.
To qualify for H-2A nonimmigrant classification, an employer must: • Offer a job that is temporary or seasonal in nature. • Show that there are not enough U.S. workers able, willing, qualified, or available to do the temporary work. • Demonstrate that employing the H-2A worker will not negatively impact the wages and working conditions of similarly-employed U.S. workers. • Prove that the visa holder intends to return to their home country after the visa expiration date. • Submit a valid temporary labor certification from the U.S. Department of Labor.
A worker with an H-2A visa may be granted a stay for up to the period of time authorized on the temporary labor certification submitted by their employer to the U.S. government. H-2A classification stays may be extended in increments of up to 1 year. The maximum period an H-2A classification stay permission is 3 years.
Whenever possible, BAL helps keep families together by assisting employees’ spouses and minor children to qualify for H-4 visas. Additionally, qualifying spouses and dependents of an H-2A worker may be allowed to enter the United States during the duration of their spouse’s H-2A visa, and the worker is given the unrestricted permission to travel into and outside of the U.S. during their visa period as well. Family members of H-2A workers are ineligible for employment in the U.S. under this program but may be able to personally qualify for a work visa.
H-2A visa holders are entitled to protection under U.S. wage and labor laws, workers’ compensation benefits, transportation, and certain housing and education benefits for themselves and their family. Wages for H-2B workers must be the highest of the adverse effect wage rate (AEWR), the applicable prevailing wage, the agreed-upon collective bargaining rate, or the Federal or State statutory minimum wage. H-2A employers are required to guarantee a minimum number of work hours to H-2A workers and offer employment for at least three-fourths of the total workdays in the contract period. Workers have the right to report any violations without fear of retaliation and be represented by an attorney in matters related to their employment. Terms and conditions of employment must be provided in a written contract by the employer in a language the worker understands.
H-2A classifications may be extended in increments of up to 1 year each. The maximum extension permitted under the H-2A program is 3 years. With certain exceptions, after 3 years an H-2A worker must leave the U.S. for 3 consecutive months before seeking readmission.
Learn more about how BAL’s temporary workforce immigration experts can help your business.
An H-2B nonimmigrant visa allows a U.S. employer or U.S. agent to bring foreign nationals to the U.S. for temporary, non-agricultural jobs.
Many employers, such as seafood processors and the forestry industry, use the H-2B visa program to retain temporary, seasonal foreign national workers.
To qualify for H-2B nonimmigrant visa classification, an employer must: • Show that there are not enough U.S. workers able, willing, qualified, or available to do the temporary, non-agricultural work. • Demonstrate that employing the H-2B worker will not negatively impact the wages and working conditions of similarly-employed U.S. workers. • Show that the need for labor is temporary in duration. Work placement and temporary agencies are not eligible for the H-2B visa program. • Submit a valid temporary labor certification from the U.S. Department of Labor.
In order to demonstrate an H-2B program temporary need for labor, an employer must show that the labor is: • A one-time occurrence: An employment situation that is usually permanent has created the need for a temporary worker, the employer has not employed workers for the services or labor in the past, and the employer will not need to hire workers to perform the services or labor in the future. • Seasonal: The employer’s need for services or labor is tied to a season of the year by an event or pattern, and is of a recurring nature. • Peak load: The employer routinely employs permanent workers to perform the services or labor, needs to supplement its permanent staff due to a seasonal or short-term demand, and the temporary staff additions will not become part of the employer’s regular operation. • Intermittent: The employer has not hired permanent or full-time workers to perform the services or labor, and occasionally or intermittently needs workers for short periods.
The H-2B visa is a nonimmigrant visa that does not directly lead to a green card, but H-2B visa holders can apply for an adjustment of status through employment-based preference categories. The steps for employers when sponsoring a foreign worker for permanent residence generally include filing a prevailing wage determination with the U.S. Department of Labor, submitting an application for permanent labor certification (PERM), filing a Form I-140 with U.S. Citizenship and Immigration Services. BAL is available to help companies navigate the green card process for H-2 and other eligible workers.
The U.S. State Department released the October Visa Bulletin, showing advancement in key employment-based categories next month, the first of the new fiscal year. U.S. Citizenship and Immigration Services confirmed it will use the Dates for Filing chart to determine employment-based filing eligibility for adjustment of status.
Taking into account the change from Final Action Date to Dates for Filing for October, movement in key categories will be as follows:
EB-1
• China EB-1 will advance 6 months to Aug. 1, 2022. • India EB-1 will advance 7½ years to July 1, 2019. • All other countries under EB-1 will become current.
EB-2
• China EB-2 will advance almost 6 months to Jan. 1, 2020. • India EB-2 will advance almost 1½ years to May 15, 2012. • All other countries under EB-2 will advance 6 months to Jan. 1, 2023.
EB-3
• China EB-3 will advance 1 year to Sept. 1, 2020. • India EB-3 will advance more than 3½ years to Aug. 1, 2012. • The Philippines EB-3 will advance more than 2½ years to Jan. 1, 2023. • All other countries under EB-3 will advance nearly 3 years to Feb. 1, 2023.
BAL Analysis: Final Action Dates advanced across most employment-based categories, reflecting new visa numbers available for the 2024 fiscal year. The State Department said advancements in cutoff dates “reflect an intention to keep visa issuance within quarterly limits” under federal immigration law, with advancement potentially continuing to occur throughout the fiscal year. The department stressed that “actual date movements will be dependent on visa demand and issuance patterns throughout FY-2024.”
USCIS released information saying that while the government issued “an unprecedented number of employment-based green cards” in the previous two fiscal years, the numerical limits for fiscal year 2024 would not be as high. The agency said it is working to provide as much “flexibility, predictability, and dignity as possible,” including taking steps to help individuals who will be waiting for an “immediately available” immigrant visa number for a lengthy amount of time. BAL will continue to provide updates on the Visa Bulletin as information becomes available.
U.S. Customs and Border Protection announced this week that nationals of the Dominican Republic are now eligible to apply for the U.S. Global Entry Program.
Key Points:
Additional Information: Those with Global Entry enter the United States through automatic kiosks at numerous U.S. airports and at preclearance locations around the world.
BAL Analysis: Dominican nationals who frequently travel to the United States for business or tourism will benefit from the program, as their entry process will be expedited at many U.S. airports. Global Entry members can also benefit from security prescreening at designated international airports before boarding a flight to the United States.
This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
IMPACT — MEDIUM
The Japanese government extended its tourist eVisa to foreign nationals living in 11 countries.
Additional Information: Travelers who hold passports from the 69 countries that are part of Japan’s visa exemption program, including the U.S., are not required to obtain an eVisa to visit the country.
This alert has been provided by the BAL Global Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
The Philippine government has ended its COVID-19 public health emergency, changing requirements for incoming foreign travelers.
BAL Analysis: The change will ease entry procedures for travel to the Philippines. The Philippine government also recently lifted Travel Pass requirements for some visa holders following the end of the COVID-19 emergency. BAL will continue following developments in the Philippines and will provide updates as information becomes available.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of July 31, the department was adjudicating applications filed in September 2022 and earlier, conducting audit reviews on applications filed in June 2022 and earlier, and reviewing appeals for reconsideration filed in September 2022 and earlier.
Average Number of Days to Process PERM Applications
PWD Processing: As of July 31, the National Prevailing Wage Center was processing PWD requests filed in January 2023 and earlier for H-1B OEWS and PERM OEWS cases, November 2022 and earlier for H-1B non-OEWS cases, and September 2022 and earlier for PERM non-OEWS cases. Redeterminations were being considered on appeals filed in February 2023 and earlier for H-1B cases and PERM cases. Center Director Reviews were being conducted for H-1B and PERM cases filed in June 2023 and earlier.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in September 2022 and earlier, but PWDs for requests filed in February 2023 and earlier for H-1B OEWS and PERM OEWS cases.
Sen. Chris Murphy, D-Conn., and Rep. Lori Trahan, D-Mass., have introduced a bill that would allow international college athletes to market their Name, Image and Likeness without losing their F-1 student visa status.
Additional Information: In 2021, the National Collegiate Athletics Association adopted an NIL policy that allows student athletes to engage in NIL activities — such as product endorsements, personal appearances, autographs or social media posts — consistent with the laws in their schools’ states. Murphy and Trahan have introduced NIL legislation before, but this is the first time it has included provisions for foreign student athletes. The push for rules that would allow foreign student athletes to take advantage of this NIL policy in the same manner as U.S. athletes has gained some traction, but so far Congress has not passed meaningful legislation on the issue.