Episode 42: An interview with BAL Partner Lynden Melmed

It’s Sept. 21, and this is your BAL Immigration Report.

• A proposed H-1B regulation is under White House review.
• The October Visa Bulletin shows advancement in key employment-based categories.
• And the head of BAL’s Government Strategies team provides analysis on why comprehensive immigration reform has proved so challenging.

“It’s a topic that on its face can appear narrow, but when you get into the legislative debate, there’s a number of aspects of it that cut across the political spectrum.”

—Lynden Melmed, BAL Partner

U.S. news

OMB reviewing H-1B modernization rule

The White House Office of Management and Budget is reviewing a proposed regulation to modernize the H-1B visa program and provide greater flexibility in the F-1 student visa program. This review is the last step in the regulatory process before the proposal is published.

According to the Department of Homeland Security, the regulation would revise regulations related to the employer-employee relationship, provide some flexibility on start dates, address cap-gap issues and change the H-1B registration process to reduce the chances of misuse or fraud.

DHS previously indicated it was targeting December 2023 for publication, but it’s possible the proposal may be published before then. The proposal will go through a 30-60-day notice-and-comment period before it is updated and published as a final regulation.

October Visa Bulletin

The State Department published the October Visa Bulletin, showing advancement in key employment-based categories. U.S. Citizenship and Immigration Services confirmed it will use Dates for Filing to determine filing eligibility for adjustment of status next month.

The advancement coincides with the start of the new fiscal year Oct. 1 and the availability of new visa numbers. The change means that more people will be eligible for employment-based green cards in October. Authorities cautioned that numerical limits for green cards would not be as high as they have been in the previous two years. The State Department said additional advancement would depend on several factors, including visa demand and issuance patterns.

US news roundup

• The Department of Labor posted updated PERM and prevailing wage processing times.
• The U.S. Embassy in Dublin is piloting a digital visa authorization pilot program.
• Business and immigration groups renewed calls for Congressional action for Dreamers in the wake of last week’s district court ruling against the Deferred Action for Childhood Arrivals program.

Spotlight

Part one of an interview with Lynden Melmed, a BAL partner and head of the firm’s Government Strategies team.

BAL Immigration Report: Melmed is one of the nation’s preeminent experts on U.S. immigration policy. He and the BAL Government Strategies team advocate for businesses in high-skilled immigration in Washington and work to keep clients and industry leaders informed about anticipated policy changes. Prior to joining BAL, Melmed served as chief counsel for U.S. Citizenship and Immigration Services, the agency’s top legal position.

He previously worked as special counsel to Sen. John Cornyn, who at the time was chairman of the Senate Subcommittee on Immigration, Border Security and Citizenship. In that capacity, Melmed was actively involved in oversight of federal immigration agencies and played a leading role in managing the comprehensive immigration legislation that passed the U.S. Senate in 2006. The legislation fell short of becoming law; in fact, lawmakers have not passed comprehensive immigration reform since 1986. We opened our interview with Melmed by asking him why this has proved so difficult even as Congress has managed to pass legislation on other hot-button issues.

Melmed: I think what’s often underappreciated about the immigration debate is how broad the issues are. People think of it sometimes solely through the lens of border security or illegal immigration, but it touches on so many aspects of society — everything from economics, to security, to safety, to cultural issues, to privacy concerns and operational costs. It’s a topic that on its face can appear narrow, but when you get into the legislative debate, there’s a number of aspects of it that cut across the political spectrum. Unfortunately, that makes it easy, particularly when you get into the comprehensive debate, it creates a lot targets for opponents of reform to in essence pull the thread on the sweater and unravel the whole effort. Prior efforts have tried to insulate against that by having a strong core, like the gang of eight that would try and withstand that opposition. But right now, we don’t have any centrist group that’s leading that charge, and so it’s been difficult to get a comprehensive discussion off the ground.

BAL: Melmed’s family moved to the U.S. from South Africa when he was a young child. He grew up watching his parents welcome other immigrants into their community. And while it is common for debate in Washington to grow heated on any number of topics, Melmed says there is one aspect of the immigration debate that is particularly unhelpful.

Melmed: There’s no question that the immigration debate ranks at the top of the list of issues that people arguably sometimes lose their mind over and are very passionate about. I do have to remind folks that I was working on the hill back in 2006 when comprehensive immigration reform actually moved through the Senate. At one point, people started mailing bricks to the Senate office with suggestions that we build a wall with those bricks. I say that because the passion, the rhetoric, has been around for a few decades, and it’s not going anywhere. It’s part and parcel of the debate.

The one place that I do think is unproductive to the discussion is when politicians and leaders denigrate immigrants themselves. That tends to inflame the topic in a way that’s not productive to solutions and, ultimately, it’s not even relevant to the solutions. That’s something that is unproductive. The more that we can stay within the lanes of the actual policy challenges and debating those solutions without attacking the individuals involved is going to make it easier to reach solutions.

BAL: We asked Melmed about the possibility of more targeted legislative efforts in the absence of comprehensive reform. He said that while there is no shortage of immigration policies he cares deeply about, two rank near the top.

Melmed: One would be documented Dreamers. Those are children of legal immigrants who came to the United States with their parents, who were often on high-skilled visas, and just due to the green card backlog time, those children are aging out and effectively losing status and being asked to return to a country that they’ve never known. That combination of the parents actually doing everything right, the kids doing everything right and then, through this issue that Congress never even contemplated, forcing those children to leave the country is really just untenable. I think there is broad support for it politically, and I am optimistic that a lane will open up for it. But that’s something that’s a targeted fix, and I think it would start to build confidence that Congress can tackle solutions in a bipartisan manner.

The second issue that’s really critically important for our clients right now is just the green card backlog. Right now, nationals from India and China are facing a multi-decade wait for a green card. That really harms U.S. competitiveness. You’re asking people to come to the United States with ultimately no real path to a green card within their lifetime and perhaps ever. It’s really inhumane to put those foreign nationals in a situation where they’re fearful of losing their status for such a long period of time and ultimately unable to contribute fully because they’re limited in their ability to change jobs. So that’s a little bit heavier lift because you’re finding a way through for high-skilled immigrants, for more of them to obtain green cards. But I think there’s ways to do that that do have political support across the spectrum. And that’s something that I hear from our clients, again both for U.S. strategic interests and economic interests, but ultimately because it’s a situation that’s not sustainable for the foreign workers.

BAL: Most of the policy changes on immigration come not from legislation but from government regulatory changes. Melmed outlined his thoughts on the administration’s regulatory efforts on immigration more than two-and-a-half years into the Biden presidency.

Melmed: You really have to evaluate this administration through three phases of their term to date. The first six months was really about undoing some of those regulations and policy proposals that were put forth by the prior administration that would have been really crippling to business interests and high-skilled immigration more broadly. Those things take time to unwind — you want to do it in the right way. You still have questions to answer even as you go about unwinding them. So, really, the first six to eight months of this administration was dedicated to that effort, and credit is due that they were able to do that smoothly and in a nondisruptive way.

They’ve then really had to struggle over the past year with improving the operational side of the house, of addressing their financial troubles, addressing their processing delays, and trying to do those things while also dealing with new challenges like Ukraine and Afghanistan, which they are not budgeted for and which create huge operational burdens inside the organization on screening and document issuance and things like that. Their record is mixed, candidly, in their ability to balance those priorities, but you’re also asking an agency that is not funded by Congress, that is receiving incoming fire from political channels, to try and do something that’s a big burden. Ultimately, now what we’re looking at over the next six months are regulatory efforts to try and set the future direction of high-skilled immigration policy. We’re still candidly trying to influence those and trying to shape those, things like where the fee rule ultimately settles, what they do with the H-1B program through the modernization regulation. Those regulations, just the two of those, will have a significant impact on our clients’ ability to attract and retain foreign workers. And until we see that final product and see how it gets shaped through the regulatory priority, it’s a little premature to evaluate whether we think they’ve been successful or not.

BAL: We’ll bring you part two of our interview with Lynden Melmed next week, when we’ll cover the importance of a good immigration policy to national security and global competitiveness. That’s next week right here on the BAL Immigration Report.

Global news

U.K. immigration fees to increase

The United Kingdom has announced that significant increases to some immigration fees will take effect Oct. 4. On that date, fees for work and visit visas will rise by 15%, and fees for student visas and certificates of sponsorship will go up by 20%. Employers should be prepared to see their costs rise accordingly beginning Oct. 4.

The Home Office previously announced these fee increases as well as a 66% increase in the immigration health surcharge in July. The effective date for the surcharge increase has yet to be announced but will likely be in 2024.

New Chinese online immigration platform

China’s national immigration administration announced it will launch a new online service platform next month. Beginning Oct. 9, foreign nationals will be able to schedule appointments and check on their application status for visas as well as stay and residence permits. They will also be able to obtain some immigration documents and permanent residence ID cards. The Chinese government is introducing the platform as part of a larger effort to move many services online, to streamline them and improve accessibility for users.

Global news roundup

• Vietnam moved to further amend rules for foreign workers.
• Costa Rica increased the maximum length of stay for some tourists and business travelers.
• Kazakhstan will stop accepting quota applications for foreign workers on Sept. 30.

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