Episode 81: H-1B second lottery, Kelly Clarkson and other SHRM24 hot topics

This episode of the BAL Immigration Report is brought to you by BAL, the corporate immigration law firm that powers human achievement through immigration expertise, people-centered client services and innovative technology. Learn more at BAL.com.

In this week’s spotlight, BAL’s Josiah Curtis and Shane Andrews discuss hot topics from this year’s SHRM conference, from a potential H-1B second lottery to Kelly Clarkson. Plus, we review the week’s top immigration news.

From Dallas, Texas, I’m Rebecca Sanabria.

Spotlight

The Society for Human Resources Management, known as SHRM, celebrated their annual conference’s 75th anniversary in Chicago last month.

SHRM President and CEO Johnny Taylor kicked off the conference with a keynote about the coming storm in HR.

Along with the more than 26,000 HR leaders, BAL was in attendance to answer questions and provide guidance on sponsoring foreign national employees and navigating the complexities of immigration law.

Josiah Curtis, a partner in BAL’s Boston office, and Shane Andrews, a senior associate in the firm’s Dallas office, sat down to discuss some of the hot topics at the conference:

Josiah: Shane, this is the first time that we’ve been able to sit and chat since you attended SHRM in Chicago last week. And I know that you were super excited coming back from the conference about some of the discussions that we had with folks that were there. And I’m just curious, I always am curious after these kinds of events, what the themes were that people were asking about. And I’m sure just looking at the calendar here, people were asking about the H-1B lottery process and whether there’s the possibility of a potential second H-1B lottery this year. Did that question come up, I guess, the first thing and then second, what’s your sort of take on whether that could happen?

Shane: The question of H-1B was at the top of most people’s mind. As you know, they conducted the lottery earlier this year with about a 25% selection rate. And there’s the big question that always looms over the lottery is whether or not there’s going to be a second drawing. So employers, they had until June 30th to file the H-1B petitions for those who were selected.

And if employers didn’t actually follow through, there may be some leftover numbers that the government will need to use up for this year. So we should be finding out probably later this month of whether or not there will be a second drawing of a lottery. Those who already put in the lottery do not need to be put in again.

The government will just use the same list of names that was put in in the initial lottery to do their second drawing. So in terms of whether I think there will be a second lottery, I think anybody’s guess would prevail here. I know in prior years, there have been.

The government did implement some changes to the lottery system this year that could actually reduce the likelihood of that happening. And that may be because they’ve already removed a lot of the duplicate entries that resulted in the government needing to do second drawings of the lottery in prior years. So we’ll have to wait and see.

Josiah: One of the other things that I know usually comes up in these conversations, and I’m curious if it was a pain point that folks discussed with you or not, is how frustratingly long it takes the government to do anything, whether it’s the Department of Labor or the Department of Homeland Security. And I’m just curious if there were themes in processing times that folks were asking about, is there one agency that people were particularly focused on or what were those questions surrounding?

Shane: Yeah, so there were two agencies that people were not that happy with in terms of processing times. The first one is the Department of Labor with respect to green card sponsorships and the PERM. The Department of Labor’s processing times have been increasingly long.

It’s over a year right now to receive a PERM when in prior years you were looking at more around the six-month mark. And there’s no end in sight to this. There was a recent AILA conference for the American Immigration Lawyers Association where they had an open panel with the Department of Labor who basically said that they do not have the resources right now to accelerate those processing times for PERMs.

So unfortunately, there wasn’t much good news we could provide on PERM processing times.

The second government agency that people weren’t that happy with was USCIS, not so much on processing times, but in terms of how much they’ve increased the fees for premium processing. That’s been a very common discussion with our, especially our smaller to mid-sized companies on that fee, on the benefit of it, and who would essentially cover that cost.

Josiah: We’re talking about processing delays and uncertainty with respect to whether there will be a second lottery and the time investment that HR has to make in managing their own immigration programs. It can likely seem a bit of a daunting task for clients or for companies that are maybe taking their first foray into the immigration sponsorship space here in the U.S. What is it about the need at the moment that you think drives folks maybe to have to go through this process? And then also what can we do to make that easier on them as they go through it?

Shane: The primary reason that employers are willing to invest in the immigration costs to sponsor foreign nationals is that what we’re hearing is that there’s a skill shortage, right? They don’t have enough employees with a specific skillset needing to effectively scale their companies.

That’s the purpose of most green card sponsorships is that to confirm the unavailability of U.S. workers for a particular role with a specific skillset. And that is the driving force behind most employment immigration is that employers are forced to do this based on the lack of available individuals in the U.S. with a specific skillset.

Josiah: Was there a theme or were there any specific pain points that were surfaced that you were able to chat with folks about not only how BAL addresses them, but how generally HR stakeholders can approach their immigration programs?

Shane: I was chatting with one company in particular. They were a smaller company, but their foreign national population was growing faster than they can keep up with. When I was speaking to this individual, they were managing their immigration program on an Excel document, which may be sufficient for one or two individuals, but they were very concerned with the rate at which they were employing foreign nationals in the United States and being unable to effectively manage the expirations for all the different visa categories, as well as being able to track their dependents as well.

So, we got to use that opportunity to talk to them about BAL’s proprietary case management system, that one-stop shop for both the foreign national and HR representatives to be able to track and manage their foreign national populations. Yeah, so we’ve talked to those companies that although we service larger clients, we have the same resources that we service the larger clients that are available to our smaller clients such as our Cobalt platform.

Josiah: As we just talked about, it’s super important to have visibility into what’s going on in your immigration program, and that’s obviously enabled by technologies and otherwise, and certainly if somebody’s managing their entire immigration program from a manually updated Excel file, there could potentially be some downstream compliance concerns, Shane. So, could you maybe just shed a little bit of light or visibility into some of the conversations you had surrounding how this tool or how these tools can support a corporate compliance effort in the immigration space?

Shane: Well, certainly the issue of I-9 compliances is a top of mind. We’d be able to monitor your I-9 compliance if needed, just to make sure that everybody’s on track and in compliance with the U.S. immigration regulations.

We just understand that there are so many different documents to track from an immigration perspective, and even if they’re being tracked accurately, there’s always the risk that there can be government errors that result in additional compliance steps that need to be taken.

Josiah: Shane, unrelated to the technical conversations that obviously are our purview as attorneys here, what was the most exciting or most fun part of being in Chicago for the conference?

Shane: Well, Kelly Clarkson, hands down. You know, I’ve been a Kelly fan. I’ve been a Kelly fan since she was on American Idol. But I was surprised, and she mentioned this during her concert, and I didn’t know this about her, but she said she was 5’3 1⁄2 inches tall. You know, I’ve always pictured her as, like, this larger-than-life, like, character, just being a celebrity. Seeing it in person was amazing. She gave an amazing concert.

Learn more about how BAL is making it easier for HR professionals to attract and manage foreign national talent at BAL.com.

Immigration news roundup

And now, the top immigration news of the week.

First, the U.S. Supreme Court ruled 6-3 in Loper Bright Enterprises v. Raimondo, overruling the Chevron case precedent.

The Chevron doctrine, established in 1984, instructed courts to defer to an agency’s reasonable interpretation of an ambiguous statute.

In overturning Chevron, the court found that “Chevron has proved to be fundamentally misguided” and “[it] was a judicial invention that required judges to disregard their statutory duties.”

BAL is reviewing this and other Supreme Court decisions and assessing how they could impact immigration programs.

In our next news update, the Australian government extended the grace period of job transitions for holders of certain skill visas.

Specified visa holders who leave their sponsoring employer may now take up to 180 days consecutively or 365 days total over their visa period to find new sponsorship, apply for a different visa or arrange to leave the country.

And in our last feature, the Irish government has signed the Employment Permits Act 2024 into law.

The act introduces a new employment permit for seasonal workers and dependents, streamlines the labor market testing process and modifies ‘change of employer’ rules, among other provisions.

The reforms are intended to make it easier for employers to attract talent.

A timeline for implementation has not yet been announced.

Find all of our news at BAL.com/news. Follow us on X at @BAL_Immigration. And sign up to receive daily immigration updates in your inbox at BAL.com/newsletter.

We’ll be back next week with more insights from the world of corporate immigration.

I’m Rebecca Sanabria. Thanks for listening.

Copyright

The BAL Immigration Report is provided by BAL. Copyright 2024 Berry Appleman & Leiden LLP. All rights reserved. Digital redistribution to the public is permitted only with express written permission of Berry Appleman & Leiden LLP. This report does not constitute legal advice or create an attorney-client relationship. Visit bal.com for more information.