Episode 65: Biden parole program, H-1B and H-2B cap updates

It’s March 14, and this is your BAL Immigration Report.

• A federal judge dismisses a lawsuit challenging a Biden administration immigration program.
• S. Citizenship and Immigration Services announces it has reached the H-2B cap for the second half of the fiscal year.
• An H-1B cap update with BAL Senior Associate Matt Dillinger.

“I think, overall, employers are feeling comfortable and like this will be an equivalent or better year than last year.”

—Matt Dillinger, BAL Senior Associate

U.S. news

Lawsuit challenging humanitarian parole dismissed

A federal judge has dismissed a lawsuit challenging a Biden administration humanitarian parole program. In fall 2022, the Biden administration launched a program allowing up to 30,000 nationals of Cuba, Haiti, Nicaragua and Venezuela and their family members to enter the U.S. in a “safe and orderly way” each month. A group of states, led by Texas, sued to end the program.

U.S. District Judge Drew B. Tipton dismissed the lawsuit, saying the states had not shown they suffered harm from the program and therefore lacked legal standing to bring suit. The judge found that the state’s fiscal injuries and rate of illegal immigration had in fact decreased as a result of the program. The states are expected to appeal the ruling.

H-2B cap reached

U.S. Citizenship and Immigration Services announced it has reached the H-2B cap for the second half of fiscal year 2024.

The agency also published filing dates for supplemental H-2B visas made available under a temporary rule issued last fall. On March 22, USCIS will begin accepting H-2B petitions for employers seeking workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti or Honduras with a start date between April 1 and Sept. 30.

The agency will also begin accepting petitions on March 22 for an additional 19,000 visas for returning workers of any nationality with start dates from April 1 to May 14. An additional 5,000 visas for such returning workers with start dates between May 15 and Sept. 30 will become available on April 22.

U.S. news roundup

• USCIS announced measures to streamline work permit procedures for individuals admitted to the U.S. as refugees.
• The State Department published the April Visa Bulletin, showing advancement in most key categories.
• USCIS said it would use Final Action Dates to determine employment-based filing eligibility next month.

Spotlight

Conversation with Matt Dillinger: a check-in on H-1B cap season and a look at recently released data on H-1B denials.

BAL Immigration Report: Employers began submitting H-1B cap registrations last week under new procedures designed to eliminate incentives for bad actors to try to game the selection process. While there have been some hiccups in the switch to the new system, Matt Dillinger, a senior associate in BAL’s Austin office, says that, on the whole, employers seem fairly optimistic.

Dillinger: I think, overall, employers are feeling comfortable and like this will be an equivalent or better year than last year. The biggest effect of the changes to the lottery system this year is that it limits fraud, limits the ability to have multiple fraudulent registrants submit a registration on behalf of the same beneficiary, because it’s now beneficiary-specific. So if two valid employers both submit a registration for the same person, and that person is selected, both employers will be notified, and then the employee will actually have the latitude to choose whether to go forward with one or the other. It gives the employers a little more confidence because there’s hopefully going to be less fraud given the update. And then it actually gives employees a little more freedom in terms of choice of employer if they do have multiple employers submitting on their behalf.

BAL: Another bit of positive news: for those who are selected in the lottery, H-1B denial rates remain low. That’s according to a recently published analysis from the National Foundation for American Policy. The NFAP looked at USCIS data for the last fiscal year and found that the H-1B denial rate for first-time petitions was about 3.5%. That’s a slight increase from 2.2% in the previous fiscal year but considerably lower than denial rates that topped 20% in the late 2010s.

Dillinger: I think the big takeaway from that is that it’s not much of a new story that the rate went from 2.2% to 3.5% with new filings, the denial rate. That is in stark contrast to what we saw during the Trump administration, where you got almost up to one quarter of new petitions filed being denied. That lower rate just gives employers more predictability. They know, generally speaking, if someone gets into the lottery that the case is going to be approved, particularly those midsized to large employers that are familiar with the process, have their own internal systems and have counsel. I think the increase between last year and this year was primarily with midsized to smaller employers that may have less experience in H-1B filings and maybe are not looking at the right criteria for which candidates to sponsor.

BAL: Employers have more than just new registration procedures and the normal cap season challenges to grapple with this year. They will also have to pay a higher fee for H-1B petitions when the application period opens April 1. Under a recently published regulation, the fee for an H-1B petition will increase from $460 to $780, and that’s before you include a new $600 Asylum Program Fee that will be charged for each Form I-129 filing. BAL recently surveyed employers on the fee increases, and most thought they would not hurt their ability to remain competitive.

Dillinger: I don’t personally think that there’s going to be a significant decrease this year for a couple reasons. One, the fee increases were only recently announced, so a lot of employers had already been well underway with their cap planning and their cap lists by the time that those fee increases came out. They’re already committed to these candidates in some way or another. So I don’t think it’s going to have a big impact on this year.

But going forward, employers are going to have to think about the total cost of their immigration program and what it’s going to mean for each business unit and for the company as a whole to have those higher fees, and they may be more selective with who they submit. So it’s definitely going to have an impact, but I don’t think it will show itself in this year’s cap registration season.

BAL: For more news on cap season, check out a recent Law360 article that includes analysis from Michelle Funk on how companies are preparing for the lottery. You can also find more information on BAL’s recent survey of employers on how they are handling of forthcoming USCIS fee increases.

Global news

U.K.’s new Immigration Salary List

In the United Kingdom, the Migration Advisory Committee recommended 21 occupations for inclusion on the new Immigration Salary List, or ISL. Roles listed on the ISL include laboratory and pharmaceutical technicians, chemical and biological scientists, ship builders, stonemasons, bricklayers, carpenters, artists and musicians, among others.

The ISL is set to replace the Shortage Occupation List, the official a list of skilled jobs for which there are labor shortages, on April 4. At that time, the U.K.’s minimum general salary threshold will increase significantly, making the Skilled Worker route unavailable for many previously listed occupations. The ISL is part of the U.K. government’s plan to curb immigration abuse and cut net migration.

China expands visa-free entry

China has further expanded the country’s unilateral visa-free policy to six additional countries. Nationals of Austria, Belgium, Hungary, Ireland, Luxembourg and Switzerland holding ordinary passports may now enter China for up to 15 days for business, tourism, family visit or transit purposes without first obtaining a visa. The policy has been enacted on a trial basis and ends Nov. 30.

Global news roundup

• The Canadian government introduced new immigration pilot programs for rural and Francophone minority communities.
• Ireland announced it would open five new overseas missions as part of the Global Ireland program.
• In Nigeria, officials announced they would suspend an Expatriate Employment Levy that had been set to launch on March 15.

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