Episode 9: H-1B registration, State Department visa report, an inside look at litigation over visa delays

It’s Feb. 2, and this is your BAL Immigration Report.

• The H-1B registration window opens March 1.
• The State Department is issuing more U.S. visas.
• A look inside the litigation challenging USCIS processing delays.

“What I’m doing is saying, ‘Okay, let’s pretend we can change things. How can we do it? And what does the law allow?’”

—Jesse Bless, IMMpact Litigation

U.S. news

H-1B registration window announced

U.S. Citizenship and Immigration Services announced that the H-1B electronic registration period would open at noon ET on March 1. It will close at noon ET on March 17. Prospective H-1B candidates or their representatives must submit registrations via the myUSCIS web portal and pay a $10 filing fee for each submission. USCIS will conduct a random lottery if there are more registrations than available visas. Annual H-1B caps are set at 65,000 visas plus an additional 20,000 for advanced degree holders.

Despite some signs of an economic slowdown, demand is expected to be high again after last year saw a record number of registrations submitted — nearly 484,000. Employers are encouraged to work closely with BAL regarding the immigration benefits employers can offer, which petitions should be fully prepped before the lottery and possible H-1B alternatives for those who are not selected.

Visa issuance up significantly

Recently released State Department data shows that immigrant and nonimmigrant visa issuance increased dramatically in fiscal year 2022. Immigrant visa issuance at posts around the world increased 73% over 2021. Nonimmigrant visa issuance increased 144%. This data indicates that visa processing is approaching pre-COVID levels, though some posts — such as those in India — are still working through significant backlogs.

U.S. news roundup

• The U.S. and Canada announced a new interview option for NEXUS, a program that expedites preapproved travelers’ transit between the two countries.
• The White House announced a two-year extension of Deferred Enforced Departure for eligible Hong Kong residents.
• USCIS warned humanitarian parolees and their sponsors to be aware of scams targeting individuals coming to the U.S. from Cuba, Haiti, Nicaragua, Ukraine and Venezuela.

Spotlight

A conversation with BAL Partner Jeff Joseph and IMMpact Litigation’s Jesse Bless: an inside look at the win for H-4 and L-2 applicants in Edakunni v. Mayorkas.

BAL Immigration Report: We spoke with Jeff Joseph, a partner in BAL’s Denver office, who was involved in the litigation through the American Immigration Lawyers Association, or AILA, and Jesse Bless, an attorney with IMMpact Litigation, who was AILA’s director of litigation when the case was filed. We asked Joseph about the Trump-era policy change that led to the lawsuit.

Joseph: What often happens is when somebody extends their H-1B status or their L status in the country, they will simultaneously file for their family members to extend as well. Most often, those are extended at the same time. During the Trump administration, they decided that they wanted those dependents to take fingerprints as part of the application. So the principal didn’t have to take fingerprints but the dependents had to take fingerprints. And the moment that they implemented that change in policy and decoupled the dependents’ applications from the principal’s application, it created a disparity in processing times. And so the H dependents and the L dependents are now at the point where, at the time of the settlement, some of them were pending for up to a year and a half. And so a lawsuit was filed basically claiming that there was an unreasonable delay on the part of the agency just to decouple them and require biometrics.

BAL: Joseph and Bless said the lawsuit met success almost immediately.

Bless: What we got early was the removal of the biometrics requirement, which was basically an invisible wall for people — they were never getting biometrics taken. They were losing their jobs and they were going to never get them. That that was one thing that we achieved quite early, that the bundling back of the concurrent processing, that’s what they fought us from June of 2021 until the settlement was reached.

BAL: After months of legal back-and-forth, a breakthrough came in July 2022 when federal judge Tana Lin denied the plaintiffs’ motion for summary judgment and class certification, but ordered discovery into USCIS’ processes. One question at issue was whether the agency had been following a “first in, first out” approach to case processing, as it had claimed.

Bless: Honestly, we had too much time where their statements were just proven as untrue. And the judge could see it because they had filed a series of declarations saying things that were going to happen in the future that never happened. And the judge was like, “Wait a minute. It doesn’t look like you’re going first in, first out. It doesn’t look like you’re doing things in six months. And I don’t know if I’m going to rule for the plaintiffs. And in fact, I’m probably not, but I think before I do that, I want to allow them to at least test what you’re saying about how you’re doing things.” That is the surest thing you’re going to be able to do to bring them to the table, and they granted us the relief that we ultimately sought for the class.

BAL: Under the settlement, USCIS agreed to return to its practice of bundling H-4 and L-2 applications for dependent status and employment authorization with concurrently filed H-1B and L-1 applications. This change is expected to significantly speed up adjudication of these applications. However, USCIS processing times remain delayed across visa categories. We asked Joseph about the overall outlook.

Joseph: It’s bleak. During the last administration, a lot of people left the agency, and there were hiring freezes and other problems. So we are really, for this four years, going to be in catch-up mode with USCIS and the backlog. It’s not going to get better because the number of filings is not going down — it’s only going to get worse. And the interesting thing about USCIS is they’re congressionally appropriated, so they can they go through appropriations every year and they have to justify their budget, but they’re also user funded — you pay to have these adjudications. So that’s also the push for increased filing fees. The goal is with increased appropriations from Congress, increased filing fees, that we’ll start to see a dent in these massive processing times — that’s the hope.

BAL: In the meantime, litigation over processing is likely to continue. IMMpact Litigation recently joined other legal organizations in suing the government over delays in unlawful presence waivers. Bless said such lawsuits are geared toward finding commonsense policy changes to improve processing.

Bless: I don’t care what happened, and the clients who I work for don’t care either. We just want it to be fixed going forward. So we’re not judging anyone. It’s not like, “Oh, we have to blame you.” No. It’s, if you see something that used to take 18 months and now it takes 60, that is going to cause significant harm whether I’m an investor on an EB-5 or I’m a victim of a serious crime seeking a U visa. What I’m doing is saying, “Okay, let’s pretend we can change things. How can we do it? And what does the law allow?”

Global news

China reopens U.S. visa offices

The Chinese government continues taking steps to reopen the country. Its visa offices in Los Angeles, New York and Washington, D.C., are now open, and those in Chicago and San Francisco will reopen on Feb. 3. Applicants must make an appointment online and bring a completed visa application and required documents to submit in person at the visa office. Multiyear multiple-entry visas issued before March 26, 2020, are currently suspended, and these visa holders must apply for a new visa at this time. Additionally, tourism and medical visas are temporarily unavailable.

Canada expands pilot program

Canada is expanding its pilot program to grant permanent residence to out-of-status construction workers in the Greater Toronto area, doubling the number of spots from 500 to 1,000. The initiative allows eligible workers to include their spouse or partner and dependent children on their application. Canadian authorities say the program will help bring more workers out of the underground economy as well as address labor shortages.

UAE increases visa service fees

The United Arab Emirates has increased service fees for residence and visit visas. Emirati authorities raised fees to 370 dirhams, or about US$100, for foreign nationals’ new Emirates ID cards and one-month visit visas. Visitors must also pay an additional 50 dirhams for travel insurance. The government has not increased fees for new passports, renewal or replacement of identity cards, or dependent-related documents at this time.

Global news roundup

• The Italian government published annual quotas for workers from outside the European Economic Area.
• Authorities in Poland and Turkey raised minimum wage levels.
• The Israeli government will begin issuing B-1 work visas

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