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The Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman) issued formal recommendations to U.S. Citizenship and Immigration Services (USCIS) for improving family-based petition routing procedures and preventing post-approval delays.
Key Points:
Additional Information: Since 2021, the CIS Ombudsman has submitted two informal proposals to USCIS about this issue which led the agency to implement procedural changes. However, the department noted that more could be done by the agency to address the remaining issues. If implemented, the recommendations will help petitioners complete the form more accurately while helping the agency reduce misdirected petitions, increase efficiency and avoid unintentional burdens on the public. Past recommendations made to USCIS by the department can be found here.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2024 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 U.S. Embassy and Consulates in India have centralized processing of nonimmigrant visa (NIV) interview cases and made changes to the visa rescheduling process that take effect Jan. 1, 2025.
NIV Consolidation
NIV Re-scheduling Changes
Additional Information: The centralized processing of nonimmigrant visa cases is intended to maximize productivity and increase efficiencies. This change is one of many measures taken to streamline visa processing and increase capacity to meet Indian demand for travel to the United States. Changes to the visa rescheduling process were made to help ensure all applicants have a fair change at getting a visa interview appointment and to reduce wait times.
Regardless of the location of the consular post for which the interview waiver appointment is scheduled, applicants can still submit their documents free of cost at any of the five Visa Application Centers in Chennai, Hyderabad, Kolkata, Mumbai or New Delhi. For a fee of 850 rupees per application, applicants may submit their documents at any of the six Document Dropoff Centers located in Ahmedabad, Bangalore, Chandigarh, Cochin, Jalandhar or Pune. In some circumstances, applicants may be required to appear for an in-person interview at the post where the visa processing has been centralized.
As a reminder, the U.S. Embassy and Consulates in India will begin issuing visas with the new Bridge design. This is a redesign of the visa that will be used alongside the former Lincoln design. All visas with the Bridge and Lincoln design will remain valid until the printed expiration date unless they have been revoked or canceled.
Copyright © 2024 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.
In our last episode of the year, Jonathan Nagel provides an advisory update on the new European travel systems, and Gabriel Castro and Kristi Ngo suggest their favorite immigration-themed books, movies and media you may want to discover over the holidays.
Explore more episodes of the BAL Immigration Report podcast, available on Apple, Spotify and the BAL immigration news page.
This podcast has been provided by the BAL U.S. Practice Group.
The Department of Homeland Security (DHS) announced the final rule for modernizing H-2 program requirements for temporary agricultural (H-2A) and temporary non-agricultural (H-2B) nonimmigrant workers and their employers.
Background Information: The Immigration and Nationality Act establishes the H-2A and H-2B nonimmigrant visa classifications for noncitizens coming to the United States to temporarily perform agricultural labor or services or to perform nonagricultural services or labor, respectively.
The Department of Homeland Security announced a final rule to modernize the H-1B visa program by clarifying the requirements of the H-1B program, providing more flexibility for petitioners and beneficiaries and strengthening program integrity measures. The final rule is scheduled to be published Dec. 18, 2024 and become effective Jan. 17, 2025.
Additional Information: A new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning Jan. 17, 2025, which is the rule’s effective date. USCIS stated that because there cannot be a grace period for accepting prior form editions, the agency will soon publish a preview version of the new Form I-129 edition on uscis.gov.
Background Information: The final rule includes many of the provisions proposed in the “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program and Program Improvements Affecting Other Nonimmigrant Workers,” notice of proposed rulemaking, published in the Federal Register on Oct. 23, 2023.
The U.S. State Department released the January Visa Bulletin. Filings for employment-based preference categories must use the Dates for Filing chart for January 2025, which will remain the same as December, showing no advancement for EB-1/EB-2/EB-3.
Dates for Filing Movement:
EB-1
EB-2
EB-3
Dates for Filing of Employment-Based Visa Applications
The Department of Homeland Security has submitted the final H-1B regulation to the White House Office of Management and Budget (OMB) for review.
Background: Part of the proposed rule, which changed the H-1B selection process so that each H-1B beneficiary is selected only once regardless of how many registrations are submitted on the beneficiary’s behalf, was published in January 2024 and took effect for the FY 2025 H-1B registration lottery.
In this week’s extended episode, special guest Stuart Anderson joins the BAL Immigration Report to discuss this year’s key developments in immigration policy–from H-1B denial rates and O-1 visa guidance to humanitarian parole programs and immigration rhetoric during the election.
Stuart Anderson is the executive director of the National Foundation for American Policy, a nonpartisan public policy research organization focusing on trade, immigration and related issues, and a senior contributor to Forbes. He joined the BAL Immigration Report to discuss key developments in immigration policy and events in 2024 with BAL partner Edward Rios.
U.S. Citizenship and Immigration Services announced updated policy guidance on applications submitted under the International Entrepreneur Rule.
Additional Information: The updated policy is effective immediately and applies to requests pending or filed on or after Dec. 12. Further details about this new guidance is available here.
With the 2024 election behind us and the inauguration set for January 20, 2025, now is the time for employers to take stock of their talent strategy and communications protocols to prepare for a second Trump administration.
We are entering a challenging environment for immigration policy. Based on the experience of the first Trump administration, employers should anticipate rapid and dramatic changes from the past four years. The good news is that we know more today than we did during the transition to the first Trump administration, and those learnings can inform the way employers organize their global talent programs and communicate with their foreign national employees.
Many of the individuals joining the second Trump administration bring with them the experience of his first term. They have a deeper understanding of the levers of government and how to use them. We know that they are using the time leading up to the inauguration to firm up immigration plans, draft policies and prepare new regulations so they can hit the ground running on Day 1.
At the end of Trump’s first term, the change in administrations allowed the Biden team to slow-walk and reverse many of Trump’s immigration policies. This is something the incoming administration is aware of and will want to use to their advantage. While we cannot say for certain exactly what those changes will be, the incoming Trump administration has made it clear that its overall approach is to restrict the number of immigrants entering the United States and to remove undocumented immigrants in large numbers. It’s important to recognize that under the anticipated enforcement priorities, there are no categories of undocumented immigrants who are considered safe from removal proceedings.
We also know from the experience of the first Trump administration that policy changes, travel bans and other business-disrupting events were often communicated via social media posts or press releases late on Fridays. Employers should be prepared to act quickly — often over weekends or holidays — to accommodate these changes, as they often went into effect on the following Monday.
While we have the experience of managing global talent under a Trump administration, it’s important to recognize some of the ways the world has changed since the first term.
If we think of public sentiment towards immigration as a pendulum, there is a center point that reflects prevailing feelings about how we approach immigration as a country. Each political party pushes the legal pendulum as far as they can in the direction they believe is most beneficial for the country. With this election, that center point has moved further to the right. The Republican party ran hard on immigration issues and was rewarded with not only the Presidency, but control of both houses of Congress. We should expect that these wins will embolden dramatic changes in the immigration landscape in a way that the 2016 election did not.
Additionally, under the first Trump administration, the U.S. Citizenship and Immigration Services (USCIS) was nearly bankrupt. Because USCIS funding comes primarily from filing fees and not tax dollars, the decline in global immigration during the pandemic resulted in severe budget shortfalls. At one time, the agency planned to furlough workers in an effort to save money. The second Trump administration’s stated focus on “government efficiency” combined with plans to curtail legal immigration could result in a similar underfunding, which in turn would slow the pace of processing for those in the immigration system.
Based on actions taken in the first administration, there are three main areas that the Trump administration is likely to prioritize that would impact corporate immigration programs: travel bans, business policy changes and worksite enforcement.
Shortly after taking office in January 2017, Trump signed an executive order, commonly referred to as the “Muslim Ban,” that prevented nationals from several countries from obtaining visas and traveling to the U.S. While these actions quickly led to legal challenges, the incoming administration now has legal precedent to rely on when creating new executive orders that will withstand scrutiny by the courts.
New travel bans are expected as soon as Day 1 of the second Trump administration. While there may be limited exceptions or waivers for some groups of people, it’s too early to know exactly what form these bans will take. Based on statements from members of the incoming administration, there are three additional categories of people who should give additional thought to whether they should be outside of the U.S. at the time of the inauguration: Chinese nationals, H and L travelers and F-1 students.
Historically, travel bans go into effect 72 hours after they are announced, so while there is a small window, it may not be sufficient for those outside of the U.S. to return before a ban goes into effect. Individuals who could be affected by travel bans should consider returning to the U.S. prior to the inauguration.
Other policy changes, however, can go into effect immediately, with no warning. Business policies can be used to slow the rate of processing, which has a net effect of reducing overall immigration — a goal of the new administration. Petitioners should expect to see more Requests for Evidence (RFEs), increased denial rates and revocation of Biden-era guidance that was intended to make the process work more smoothly.
For example, Biden reinstituted the pre-Trump policy of deference to prior determinations when considering renewal requests. For applicants requesting extensions where there were no material changes in facts since the previously approved petition, USCIS generally deferred to the previous decision and granted extensions. If the deference policy is not codified before Trump takes office, employers and petitioners should expect that Trump will revert to the policy of his first administration, reviewing every application as though it was the applicant’s first. The additional administrative burden will slow the application review process, so renewals that can be expedited now, should be.
Like executive orders, regulatory changes can take more time to come into effect. The first Trump administration moved to prioritize H-1B lottery selection by wage and increase salary thresholds by an average of 40% to discourage the hiring of foreign nationals. While they published final versions of these rules, the incoming Biden administration delayed them before they went into effect. The Trump administration would likely be interested in implementing similar policy changes, and they know from previous experience that administrations can run out of time to effect change. While there would be a very tight timeline to implement salary requirements between the inauguration and the H-1B registration period in 2025, employers should expect to see the incoming administration signaling the direction it intends to take on these issues early on.
Finally, employers should expect to see an increase in worksite visits, similar to the uptick we saw in the first Trump administration. There are two different groups that employers may see: USCIS and U.S. Immigration and Customs Enforcement (ICE).
First, the Fraud Detection and National Security (FDNS) division of USCIS conducts site visits under the Administrative Site Visit and Verification Program (ASVVP), either via e-mail or phone or at the addresses listed on a petition. Since these could be either employer-owned locations or in the case of remote workers, the beneficiary’s residence, employers should consider reviewing the petitions of their foreign national employees on H and L visas and ensuring that anyone working remotely knows who to call in the event that FDNS reaches out or appears in-person at their homes.
Second, ICE conducts Form I-9 audits. Whether employers collect and store Form I-9 on paper or electronically, every worksite should know who to contact internally when ICE arrives and be prepared to produce the requested documentation. The Trump team has also expressed an intent to resume conducting unannounced worksite raids, and to expedite removal proceedings for undocumented workers identified, though how that process will work is not yet clear.
While we may not know the specifics of how the immigration landscape will change, we do know that change is coming and that employers need to be prepared to react quickly and communicate rapidly to affected workers.
Coordinate internally on company priorities
Leadership will need to determine and communicate the organization’s position in a new political environment, and organizations will likely pursue a different playbook than they did during Trump’s first term. Employers may want to form working groups that include public affairs, HR, communications, key business groups and legal.
Create a plan for January 20
Corporate travel policies should be updated and communicated — either directly by the company or through their law firm — prior to the inauguration to account for employees who cannot enter the United States. COVID travel policies can provide a good framework, as travel guidance shifted constantly and employers had to provide proactive and reactive guidance on short notice. Employers should also determine now whether they have the resources to aid employees who are unable to reenter the U.S. If not, employees who need to travel outside of the U.S. should be encouraged to return prior to January 20.
Establish an internal communications process and platform
Knowing that policies can change quickly and outside of standard business hours, it’s imperative to establish a method for keeping employees informed during the transition. One key area to address is how communications will be developed, reviewed and approved, knowing that major changes may be announced on Fridays and holidays. Our firm has developed a proprietary communications tool that allows our government strategies team to immediately push out updates to clients.
Develop a defensive strategy for worksite enforcement visits
Set up an internal rapid response team and ensure that front desk and security personnel know who to call in the event that agents or inspectors arrive on-site. Generally, in the event of an ICE audit, employers have 72 hours to respond with I-9s, which could reside with HR or a third-party. The internal rapid response team should know the process for assembling requested documents.
Revisit your talent strategy to prepare for a new administration
Under previous administrations, a company’s talent strategy could remain fairly stable over four or even eight years. However, knowing that the incoming administration is looking to move quickly and dramatically, it may make sense to regroup quarterly to adjust to changing policies and regulations.
In anticipation of a more restrictive immigration policy environment, now is the time to organize internally to determine how your organization will respond and communicate those changes to employees.
This article was originally published on Law360.com.