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The State Department expects significant delays in visa processing in France.
Advocates call for a legislative solution for DACA.
And with graduation season upon us, BAL Senior Associate Chad Li discusses student visa trends.
Get this news and more in the special extended episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.
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.
It’s May 23, and this is your BAL Immigration Report.
“In the business immigration landscape, employers have historically utilized the F-1 student pipeline to find the best and brightest to add to their workforce, and the status generally serves as the primary pathway for most highly skilled and educated immigrants into the U.S.”
—Chad Li, BAL Senior Associate
Individuals seeking to obtain a U.S. visa in France this year are encouraged to start the visa application process as soon as possible. With the upcoming Summer Olympics, as well as the 80th anniversary of D-Day, the Department of State anticipates significant delays in visa processing in France. Visa applicants are encouraged to book the first available appointment or consider delaying their travel. Up-to-date information on wait times at U.S. consulates and embassies can be found on the State Department website.
Lynden Melmed, the head of BAL’s Government Strategies team, co-authored a statement recently urging Congress to pass legislation protecting Dreamers. Melmed says the issue is important to him personally and that a legislative solution is key, given litigation challenging the legality of Deferred Action for Childhood Arrivals, or DACA.
“It is an issue that’s near and dear to me. We’re coming up on I think the 25th anniversary of the original DREAM Act. I personally have been working on the issue for 22 years and have seen it progress at various times pretty far along in the legislative process, but it’s never gotten across the goal line. The real driving pressure right now, aside from just the constant human aspect of it, is the fact that most legal experts anticipate that the Supreme Court is going to rule that the DACA program is unlawful. If they do that, there’s still some follow-up questions about what relief looks like for people with DACA status, and when does the program actually terminate, and can they continue to stay in the United States? But I think the general consensus is that the writing’s on the wall, that the program will end and that Congress really needs to provide a durable solution for them.”
Melmed called on Congress to protect Dreamers in his capacity as a leader on the Council on National Security and Immigration, a group of national security experts who believe broad-based immigration reforms are necessary for America’s security needs and long-term national interests. The council released its statement ahead of a Senate Judiciary hearing on the issue earlier this month. We asked Melmed if he saw anything promising in the hearing.
“Candidly, there wasn’t a lot out of that hearing that signaled any change in direction for Congress. I think behind the scenes, there’s more common ground than people realize on some of the solutions. But a lot of the hearings right now, as one would expect going into an election year and with the election just really a few months away, this was a little bit more about positioning. And so we saw that through the witnesses and the topics that were covered, as opposed to some of the hearings where you really see some progress being made.”
A conversation with BAL Senior Associate Chad Li: student visa trends and policies.
BAL Immigration Report: It’s graduation season for colleges and university students across the U.S., including for hundreds of thousands of international students. Student visa holders make up a crucial part of the talent pipeline. International students make up roughly 5% of the student population in the U.S. but a significantly higher percentage of STEM graduates. Among the most common majors for international students are computer science, electrical engineering, mechanical engineering and information technology. Chad Li, a senior associate attorney in BAL’s Dallas office, joined us this week to discuss the trends he’s seeing in student visa issuance.
Li: Statistics tell us that in the 2022-23 academic year, the U.S. actually saw an increase of 11.5% in the F-1 student population, which really marks the biggest year-over-year increase in over four decades in the F-1 student population overall. In total, that population of just over 1.05 million students account for about 5.6% of the total U.S. college population overall. In the business immigration landscape, employers have historically utilized the F-1 student pipeline to find the best and brightest to add to their workforce, and the status generally serves as the primary pathway for most highly skilled and educated immigrants into the U.S. Specifically, the F-1 student pipeline continues to be a viable option for U.S. companies to fill the 8.5 million unfilled jobs currently in the U.S. and 7.5 million of those jobs in the private sector.
BAL: Li says it’s not all good news, however. Specifically, he mentioned an uptick in student visa denials. A recent study from the Cato Institute found that a record quarter million international students were denied visas in 2023. Li provided additional figures and analysis.
Li: Department of State statistics for the past year show that the agency has denied a new record of 36.3% of individuals, or just over a quarter of a million applicants who applied for an F-1 visa at a consulate post during the calendar year. This denial rate is almost double the denial rate for all other non-student visas at 18.2%. So while the overall F-1 population is growing, it does appear that a significant number of applicants are being denied at the consulate, which is likely hindering an even larger potential growth.
Such a rate of visa denials for this category may have long-term implications by deterring applicants from applying to U.S. institutions and exploring other educational options in Canada and Europe, who are seeing increases to their international student population as well. Another negative impact to the U.S. with these denials means that more F-1 students are being turned away from the U.S., which can lessen the number of F-1 students in its talent pipeline for future jobs, like I mentioned earlier.
BAL: Li says the high denial rate not only affects the broader economy but also universities themselves. This is because foreign students usually pay full out-of-state tuition with little or no financial aid. Overall, however, Li says the last few years have seen policy changes that have been favorable to both students and employers who hire recent graduates.
Li: Since we are in an election year, we should acknowledge that the Biden administration has been mostly favorable to F-1 students and has implemented beneficial policies such as the flexible EAD policies covering automatic extensions due to USCIS processing delays, opening the door for F-1 students to pursue green cards, and eliminating the need for students who have applied for a change of status to F-1 student status to file another application to extend or change their current nonimmigrant status while they show an F-1 change of status application is pending.
In terms of what we are seeing upcoming in the legislative agenda, there are also some positive rumblings that could benefit F-1 students. An agenda item was submitted in April 2024 requesting an update to the Department of Homeland Security STEM Designated Degree Program List. While this has not been formally added as a regulatory agenda item, we can expect it to appear at some point in the next year and might mean that the current STEM degree list will expand to incorporate more degree fields. An expansion of the STEM list will make more degree fields eligible for the additional two years of STEM OPT work eligibility in addition to the current one year of OPT that is afforded to all F-1 students. The additional years of work eligibility is an integral benefit to students and employers, with the obvious benefit of more years of work authorization and subsequently more chances under the H-1B cap lottery system.
On the horizon is also the USCIS proposed rule on H-1B modernization that appears to come with some additional provisions to help F-1 cap-gap flexibility. The proposed rule would provide a longer cap-gap protection period by extending the period from Oct. 1 to potentially as late as April 1 of the following calendar year. The proposed rule could allow F-1 students to obtain an additional six months of employment authorization and avoid lapses in status while awaiting a change to H-1B status. The benefit obviously could help students mitigate the impact of lengthy adjudications under regular USCIS processing times, or instances of an RFE being issued that may further delay the adjudication process as well.
BAL: With the election gearing up, Li says the first Trump administration offers clues about future student visa policies if former President Trump is elected again.
Li: What we have experienced in the past is that policies that were once favorable to student visas may be at risk, as the administration generally placed F-1 OPT policies in the crosshairs, and we should see even more student visa denials. The administration’s policies were extremely adverse to F-1 students, where the U.S. saw a decrease in the F-1 student population for the first time during the academic years of Trump’s previous term.
In the United Arab Emirates, Dubai has launched a gaming visa initiative as part of their Dubai Program for Gaming 2033. This strategy aims to position Dubai as the leading city in the global gaming industry and boost their digital economy. The long-term cultural visa is designed to welcome artists and creators under the creative and talented accreditation certificate. Individuals must be at least 25 years old to apply.
Irish officials announced that spouses and partners of certain employment permit holders are now granted automatic employment eligibility. This change will enable eligible spouses and partners to work and live in Ireland without the need for a separate permit. Ireland announced the update as part of various measures to attract additional skills and talent with the goal of increasing competitiveness in the workforce.
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.
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