Episode 27: Jobs report, guidance for students, H-2B visa strategies

It’s June 8, and this is your BAL Immigration Report.

• A recent jobs report shows an uptick in hiring.
• The State Department provides guidance for international students.
• Demand for H-2B visas continues to grow.

“Anyone with start dates even mid-October through late March will have to wait. They will go through the Department of Labor process and will get certified, but will have to wait until additional visas are released in December.”

—Ashley Foret Dees, BAL Partner

U.S. news

DOL jobs report analysis

A Department of Labor jobs report showed that employers added 339,000 jobs, a figure that was significantly above expectations. The unemployment rate rose slightly but still remained low at 3.7%. We asked BAL Partner Josiah Curtis about the report.

“This, simply stated, would demonstrate that things are still hot here in the U.S. from an employment perspective, and the labor market is tight. We’re at historically low unemployment — and that’s particularly true in the high-skilled space, particularly in the tech area, where there may be a few very large employers that are obviously taking up some space in the headlines. But at scale, what we’re seeing in the data — at least as I interpret what’s being published by the government — it demonstrates that things are still very, very hot and that there still is a lot of opportunity out there and that companies are aggressively pursuing talent.”

As some companies reduce staffing, layoffs can be particularly difficult for H-1B workers and other nonimmigrant visa holders. In most cases, workers in this situation are given 60 days to find a new employer or change to a different status. In a sign of a relatively healthy jobs market, Fortune magazine recently reported that many laid-off H-1B workers have been able to find new work within the 60-day period. Curtis says this is likely for a few reasons.

“Because H-1B workers in particular are generally highly educated and work in these fields, the data according to this article demonstrate that they are having outsized success. They are better equipped — H-1B workers, that is — to move into new roles. That probably is for a couple of reasons and there’s two flip sides to the coin: One is, they have urgency. They have 60 days to find a job before they could potentially lose their status here in the U.S., and that drives a different approach to your job search, logically speaking. The other is, again, they have that marketable skill set and they’re more competitive in an already pretty hot labor market than some others may be.

“On the flip side of that coin, I would say companies have to contend with the reality of knowing very likely that these candidates are courting multiple employers because they have this life impact of potentially not getting a job within 60 days. And what we’re seeing is — a few times, not at scale, but a few times — candidates back out an offer because they’ve secured approval or sponsorship by another employer. So what we’re really seeing employers wrestle with in this space is being quick with your responses and making sure that you can get those assessments coordinated as quickly as possible, because if I’m that H-1B worker and I’m choosing between offers and I have, you know, a bird in the hand is better than two in the nest, as they say — they would very likely, if I were them, jump at the first offer they get, and we’re seeing companies wrestle with that.”

Student visa guidance reminder

The State Department recently provided guidance reminding international students that they can only enter the United States 30 days before their program start date. Earlier this year, the State Department instructed consular officers that they can now issue an F or M student visa up to 365 days in advance of a program start date. However, foreign students who attempt to enter the U.S. more than 30 days before their program start date can be found inadmissible by Customs and Border Protection.

U.S. news roundup

• Third-country visa processing continues to help reduce visa delays at consulates abroad.
• The Department of Labor posted updated H-2A and H-2B processing times.
• As the Hollywood writers’ strike enters its second month, foreign film and TV workers are facing growing uncertainty over their O-1 visa status.

Spotlight

A conversation with Ashley Foret Dees: a preview of H-2B visa options for employers this fall.

BAL Immigration Report: The H-2B visa program allows nonagricultural employers to hire employees to temporarily come to the U.S. and perform services or work. Specifically, employers must show a seasonal, peak load, intermittent or one-time need for temporary foreign workers. Employers are gearing up to file H-2B applications for those with a start date in the first half of the fiscal year, which begins Oct. 1.

Employers can file for H-2B visas 90 to 75 days before for the start date, which means filing will begin in early July. Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment from October through March and 33,000 for workers who begin from April through September. BAL Partner Ashley Dees said this pool of visas is the best option for some employers.

Foret Dees: If you are an employer and you are new to H-2B, and you are hoping to hire a foreign national from any of the eligible countries under the H-2B category in the world, and those employees have not ever held an H-2B visa, your only option is one of those 33,000 visas either for the first half of the fiscal year or second half of the fiscal year. And that really remains true if you want a new H-2B employee to enter the country for the first time under H-2B. So what we see now though is that those numbers, there are more filers, of course, than there are visas available, which is common in other visa categories as well.

BAL: The government does provide additional H-2B visas in supplemental allotments, but these are not available to everyone. For example, of the nearly 65,000 in supplemental visas made available last year, 44,700 were reserved for H-2B workers whom had been granted H-2B status at some point in the previous three years. Twenty thousand were reserved specifically for workers from Haiti and the Northern Triangle countries of El Salvador, Guatemala and Honduras. The supplemental visas are also not made available right away. And visas under the regular H-2B cap are likely to be used up on employees with start dates in early October.
This puts employers with temporary need in the late fall or winter in a bind, and the demand for visas is only increasing.

Foret Dees: We’ve historically treated the October cap more relaxed — like, “Oh, okay. It’s fine. We’ll file within the 90- to 75-day window, we’ll still get you counted under that initial cap.” This year, we’re filing on the 90-day mark; we anticipate potentially Oct. 1, that will go to a lottery. And so anyone with start dates even mid-October through late March will have to wait. They will go through the Department of Labor process and will get certified, but will have to wait until additional visas are released in December. And so if you have a start date past Oct. 1 at some point, and you do want your workers to arrive in November or December, you’re most likely going to have to sit around and wait for the supplemental numbers to be released for returning workers or Northern Triangle or Haiti. I do anticipate supplemental numbers very similar to what we saw this past fall. If another Central American country is added, that would not surprise me. But I do anticipate it to be similar.

BAL: Some strategies for employers include finding employees with a previously approved H-2B visa, recruiting specifically from El Salvador, Guatemala, Honduras or Haiti, and examining whether an earlier start date is possible.

Foret Dees: We’ve had to have conversations with our clients who have dates of need sometime in October, maybe in November, to either prepare them that those employees, we call it a start date, but those employees would not be arriving until supplemental numbers are released, likely in December. Or can they identify their peak documentation and their seasonality and see if we can push their start date up to Oct. 1? If they do start getting busier towards October, then you’ve got to listen that we’ve got to go for Oct. 1, but we have to have the paperwork to back that up. So you have to look at someone’s seasonality to see if we can get that start date to align with the release of the visas. So we have been strategizing with our employers in line with what happened this last fiscal year. That’s what I anticipate to see.

BAL: For more on H-2B opportunities, visit BAL’s H-2 visa page.

Global news

Canada adds 13 countries to ETA program

The Canadian government announced the addition of 13 countries to its electronic travel authorization, or ETA, program. The nations added to the list include Argentina, Costa Rica, Morocco, Panama, the Philippines, Thailand and Uruguay. Travelers from these countries who either have held a Canadian visa in the last 10 years or who currently hold a valid U.S. nonimmigrant visa can now apply for ETA instead of a visa when traveling to Canada by air. Individuals ineligible for ETA or who arrive in Canada by land or sea still require a visitor visa to enter the country.

Canada to prioritize applicants with certain language abilities, skills

In other Canada news, government officials announced plans to give a boost to permanent resident applicants with certain language abilities or skills. The government will prioritize category-based selection invitations for individuals who have strong proficiency in French or who have work experience in agriculture, healthcare, STEM professions, transport and trades.
Authorities will provide more details regarding the timing of invitations for individual categories and how to apply in the coming weeks.

South African Zimbabwe Exemption Permit update

The South African government will not extend the validity of the Zimbabwe Exemption Permits past June 30, 2023. Permit holders can stay in the country until June 30 but must secure a different visa to stay in South Africa legally beyond that date. Those unable to obtain another visa must leave the country by the end of June or they will be deported. South Africa originally granted “special dispensation” more than a decade ago for Zimbabweans who are in the country illegally after fleeing violence and instability.

Global news roundup

• The Australian government provided updated information on its plans to increase the Temporary Skilled Migration Income Threshold.
• Panama extended a deadline for renewing expired residence permits.
• The Vietnamese government announced a July 5 deadline for employers to report on their sponsorship of foreign workers.

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