Episode 18: Post-lottery H-1B recap

It’s April 6, and this is your BAL Immigration Report.

• A federal judge rules in favor of the government in a case challenging H-4 work authorization.
• USCIS updates guidance related to gender markers listed on forms and documents.
• Preliminary analysis suggests it was another record-breaking cap season.

“What we have seen is that the selection rate was much lower than it was last year, and so we’re thinking about the factors that are leading to this presumptively very high level of submissions.”

—Stephanie Pimentel, BAL Partner

U.S. news

H-4 work authorization ruling issued

A federal judge in Washington, D.C., upheld the legality of the Obama-era rule that allows some H-4 spouses to apply for employment authorization. The litigation dates back to 2015 but was temporarily put on hold when the Trump administration considered rescinding the regulation. In 2021, after President Joe Biden took office, the parties filed motions that had been pending since then.

Last week, U.S. District Judge Tanya Chutkan ruled in favor of the government, saying the executive branch has a long-standing and open responsibility for authorizing employment for visa holders. The plaintiffs in the case, a group called Save Jobs USA, may appeal.

USCIS guidance on gender markers

U.S. Citizenship and Immigration Services issued guidance to clarify that it will accept the self-identified gender marker for individuals requesting immigration benefits. The guidance states that individuals do not need to submit proof of their gender identity when submitting a request to change their gender marker. Currently, the only gender markers available are male or female. The Department of Homeland Security said it is working on options for other or unspecified gender identities. USCIS will update its forms accordingly.

U.S. news roundup

• USCIS removed its 60-day rule for civil surgeon signatures.
• Homeland Security Secretary Alejandro Mayorkas said DHS is reviewing visa rules that make it difficult for foreign student athletes to monetize their name, image and likeness. For more on this topic, read our recent perspective by BAL attorneys Gabriel Castro and Tiffany Derentz.

Spotlight

A conversation with BAL Partner Stephanie Pimentel: the post-lottery H-1B outlook.

BAL Immigration Report: In December 2022, BAL Partner Stephanie Pimentel joined the Immigration Report to discuss the upcoming cap season. At the time, it was unclear what impact mass layoffs and other economic trends would have, but now every indication is that it was another record-breaking cap year. Early analysis suggests that the selection rate may be even lower this year than it was last year, when nearly 484,000 registrations were submitted.

Pimentel: Last time, we talked a little bit about how our crystal balls were or were not working in terms of estimating what the lottery submission numbers were going to look like. What we have seen is that the selection rate was much lower than it was last year, and so we’re thinking about the factors that are leading to this presumptively very high level of submissions.

It seems to fall into a couple of different buckets. The first one is that the overall low rate of selection last year created a situation where a lot of employers had a lot of continued employees who they needed to submit again into this year’s lottery. The second piece of that is that those types of workers aren’t necessarily just the students who are on OPT, but also may have been L-1 workers who are not eligible for extensions past a certain point and so need to have an H-1B selected on their behalf so that they can remain employed in the United States longer term. Finally, USCIS has stated that there will likely be a higher fee for next year’s submissions, and so it’s possible that some employers went ahead and made more submissions this year than what they realistically needed in order to hedge their bets against a higher fee next year.

BAL: Under a current USCIS proposal, the H-1B registration fee would increase from $10 to $215. That would be less than employers spent on H-1B petitions before the registration system was implemented in 2020. However, it would still have an impact on employers’ immigration budgets, even if the final increase is not quite as much.

Pimentel: We are hopeful that that increase in investment might result in some employers being a little bit more choosy about how many individuals they’re actually putting into the lottery, which may decrease future submissions. Of course, it remains to be seen because with the low selection rates this year and last year, a lot of employers are going to continue to have established employees who are doing a great job who they want hold on to. And so I think going into the future, certainly that rise in the fee will have an impact, but this large pool of individuals who haven’t yet been chosen will continue to be there and active in the background.

BAL: Other factors may also change the cap season calculations.

Pimentel: We’ve been waiting for a couple of years now for some changes to the H-1B rules that might govern things like employer-employee relationships. If there are changes to the H-1B rules, employers may make different choices about how many individuals to sponsor and put into the annual H-1B lottery. Finally, as happens most years at this time of year, Sens. Grassley and Durbin have introduced another bill about changing the way the lottery is conducted and making it less of a pure lottery by instituting a number of steps and priorities where individuals with U.S. master’s degrees and higher are given a much higher level of priority to be chosen in the annual lottery, followed by diminishing priorities after that. So we’ll really have to wait and see what happens, what comes into law, what changes are made and whether or not that fee takes hold.

Global news

Canada doubles special immigrant program nominations

Canadian authorities have doubled the number of nominations under the Ontario Immigrant Nominee Program, or OINP. The province will be able to nominate 16,500 foreign nationals for the OINP in 2023. Authorities plan to increase the total again in 2025 to more than 18,000 nominations. Canadian authorities said they increased the number of nominations because Ontario is experiencing severe labor shortages, with more than 300,000 jobs remaining available in December 2022.

South Korea offers temporary K-ETA exemption

South Korea will temporarily exempt individuals from 22 countries from travel authorization requirements. This policy will last until at least the end of 2024 and covers travelers from Australia, Canada, Japan, Singapore, the United States and many EU countries. South Korean authorities are waiving the K-ETA requirement, as it is called, to promote tourism.

South Africa provides blanket extension

The South African government has provided a blanket extension to foreign nationals renewing visas or waivers to stay in South Africa. The extension will last until at least Dec. 31 of this year. A previous extension had been set to lapse March 31. The government granted the extension to help those who have been negatively affected by processing delays.

Global news roundup

• China announced it would join the Apostille Convention.
• Hong Kong immigration authorities said they would require some Talent Admission Scheme applications to be submitted online.
• Chile extended the validity of special work permits for tourists.

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