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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.
Top immigration news clips include the Supreme Court’s overturn of the Chevron doctrine and Ireland’s new Employment Permits Act 2024.
Get these insights and more in the latest episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
Nonimmigrant visa issuance continues to rise.
Diversity Visa results are now available.
And how updates to the Department of Labor’s Schedule A occupation list could help the green card process for workers in critical industries.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.
H-1B is a nonimmigrant classification for temporary employment in the United States. There are three types of foreign nationals (also known as “beneficiaries”) who may have petitions filed on their behalf under the H-1B classification:
The main requirements to be eligible for the H-1B classification are:
The foreign national must have an “employer-employee” relationship with the petitioning U.S. employer (also known as the “petitioner”). This means the petitioner must generally have the right to hire, pay, fire, supervise, or otherwise control the work of the beneficiary.
The foreign national must be coming to the U.S. to perform services in a “specialty occupation.” This means an occupation that requires:
The employer must pay the foreign national at least the “actual wage” or “prevailing wage” for the occupation, whichever is higher. These are:
The foreign national must meet the minimum educational and/or experience requirements for the specialty occupation position. This means the employer must demonstrate that the foreign national holds the required bachelor’s degree (or higher degree), or has sufficient relevant experience equivalent to the minimum educational requirements for the specialty occupation position, and is otherwise qualified for the specialty occupation position.
The H-1B classification is limited to an annual cap of 85,000 new visas in each fiscal year. This includes 20,000 H-1B visas set aside for foreign nationals who obtained a master’s degree from a U.S. university. New H-1B visas become available each year on October 1, which is the start of the government’s fiscal year. Because the demand for new H-1B visas is often higher than the available 85,000, U.S. Citizenship and Immigration Services (USCIS) conducts a lottery in March of each year to select which U.S. employers may petition for one of the new H-1B visas that will be available the following October.
Check out BAL’s analysis of the FY 2024 H-1B cap registration and selection numbers for fiscal years 2021-2024.
Check out BAL’s latest H-1B Cap Post-Lottery podcast episode!
H-1B classification may be granted in increments of up to three years at a time and extended in increments of up to three years at a time. Extensions can be initiated up to six months prior to the expiration of H-1B status.
In general, a foreign national may hold the H-1B classification for a maximum of six years. Time spent in H-1B, L-1A, and L-1B classifications are counted together toward the applicable maximum.
After reaching six years in H-1B classification, the foreign national may:
There are exceptions that allow extension of a foreign national’s H-1B classification beyond the six-year maximum, but the foreign national must:
Obtaining H-1B classification requires a number of steps:
Premium processing is an optional service offered by U.S. Citizenship and Immigration Services (USCIS) that provides expedited processing for certain Forms I-129 (Petition for a Nonimmigrant Worker) and Forms I-140 (Immigrant Petition for Alien Worker). In most cases, premium processing for Form I-129 petitions for the H-1B classification guarantees processing by USCIS within 15 calendar days for an additional fee. If USCIS does not take action on the Form I-129 within the 15 calendar days after it receives the request for premium processing, USCIS will refund the additional fee and will continue with expedited processing.
If a registration is selected in the lottery, there are two options for filing the H-1B petition during the 90-day filing window, depending on where the foreign national is when the petition is filed and how the foreign national plans to activate the H-1B status after the petition is approved.
Change of Status: If currently in the U.S. and in another valid status (e.g., F-1, L-1) at least until October 1, we can file the H-1B cap petition as a “change of status” petition, meaning that the H-1B status will automatically take effect on October 1, or on the date the petition is approved, whichever date is later. If the foreign national is currently in the U.S. in F-1 status — including an Optional Practical Training (OPT) or STEM extension — but their status will expire before October 1, they may be eligible for a cap gap extension of their F-1 status to that date.
Consular Notification: However, if the foreign national is not in the U.S. at the time the H-1B petition is filed, does not have another status valid until October 1, or if other situations (explained below) apply, the H-1B petition is filed as a “consular notification” petition. In this situation, in order to activate H-1B status after the H-1B petition is approved, the foreign national will need to enter the U.S. with the H-1B approval notice from USCIS and a valid H-1B visa stamp in their passport. The foreign national will need to obtain an H-1B visa at a U.S. embassy or consulate while outside the U.S. H-1B status will take effect after the foreign national obtains the H-1B visa and uses it and the H-1B approval notice to enter the U.S. If in the U.S. when the H-1B petition is approved, the foreign national will need to leave the U.S. and re-enter with their H-1B approval notice after receiving their H-1B visa from the U.S. embassy or consulate. Note that Canadian citizens are exempt from the visa requirement and can activate their H-1B status by entering the U.S. with the H-1B approval notice. The earliest the foreign national can enter the U.S. to activate H-1B status is ten days before the starting validity date on the H-1B approval notice.
If a foreign national’s case is filed as a change of status, H-1B status will automatically take effect on October 1, 2023, or on the date the petition is approved, whichever date is later. If the case is filed as a consular notification, H- 1B status will take effect after the foreign national activates H-1B status by entering the U.S. with their H-1B visa and H-1B approval notice. As a reminder, Canadians are visa exempt and do not have to apply for a visa at a U.S. embassy or consulate. To activate their H-1B status, they can show their H-1B approval notice to a Customs and Border Protection officer when entering the U.S.
If a foreign national’s H-1B petition is a change of status, he or she does not have to travel to activate H-1B status. If the H-1B petition is a consular notification, the foreign national must obtain an H-1B visa at a U.S. embassy or consulate (unless Canadian) and then travel to the U.S. to be admitted to the U.S. in H-1B status.
Foreign nationals will need to bring the original H-1B approval notice and a copy of the H-1B petition. In addition, foreign nationals will need to review the U.S. embassy or consulate’s website to learn what specific documentation is required, as every U.S. embassy or consulate has different application procedures and requirements.
Spouses and unmarried children under the age of 21 may obtain H-4 classification based on their family relationship to the H-1B workers.
Do you need BAL to file H-1Bs for your employees/organization? Click here to to contact us so we can help.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
BAL Partner Ashley Foret Dees is one of the nation’s preeminent experts on H-2 visas and the founder of the Louisiana State Bar Immigration Law Section. Since 2009, she has been a pivotal asset to corporate employers reliant upon temporary or seasonal workers to secure global talent and remain competitive. We recently sat down with Ashley for a conversation about trends in H-2 visa practice and her experiences as a woman in the profession.
What are your areas of practice?
My specialty is representing employers interested in securing the critical skills of global temporary or seasonal workers through the H-2 visa process. There are two types of H-2 visas: H-2A and H-2B. Both visas permit an eligible U.S. employer or agent to hire a temporary or seasonal worker who is a foreign national. An H-2A visa is used solely for the hiring of agricultural workers, and an H-2B permits the hire of nonagricultural workers.
I also represent clients in family immigration, including defense of removal, asylum cases and DACA.
What’s the difference in processing time between H-2A and H-2B visas in FY2023?
H-2A agricultural visas are much easier — you can turn around the entire filing in 60-75 days. Those are very fast because there’s no cap for H-2As.
H-2 B visas are so different, especially this year. We remind employers that nowadays they have to back up their program timeline if they want to apply for an H-2B. Prevailing Wage Determinations are now taking an extra 45 days, which is long. That backs up the timeline to April 15. So, when people call in July and say, “I’d like to talk about October H-2B visas,” it’s like, “Well, we can talk about next year’s October visas.”
What other hurdles are employers interested in H-2 visas encountering?
The majority of employers who utilize the H-2A and H-2B visa programs are small businesses trying to leverage themselves into a really complicated federal visa program. Most small business owners don’t have a grasp on what opportunities are available for employers and find the process intimidating.
What questions are H-2B employers asking about this year’s lottery?
Everyone also wants to know about strategy right now. They’re interested in moving start dates, trying to get a supplemental visa number from one of the special reserved countries, and what to do if they’ve got such a bad position in the lottery their staff won’t be able to arrive this year. I help employers strategize, predict and find solutions within the H-2 program.
Can employers with preexisting immigration programs leverage H-2 visas as a mobility strategy?
There are some entities, like hotels, that should consider H-2s and other visa programs in combination with their existing programs. Hotels could mix having a J-1 trainee program with an H-2 visa program, and then move some of those workers into PERM status. I think there are a lot of industries out there that have a peak need to supplement their staff.
What interested you in immigration law as a field of practice?
The Catholic Charities (CC) in my area of Louisiana ran a very large refugee resettlement program that needed an attorney who spoke Spanish. My introduction to immigration law was doing asylum work with CC, which continued after graduation. Since there were no other practitioners in my area of the state practicing immigration law, I hung a shingle of counsel to a firm in 2009 — and opened my own practice in 2013.
What attracted you to becoming a partner with BAL and relocating your entire team to the firm?
I run a global practice, and my client employers are all over the country. It was an opportunity I couldn’t pass up — to leverage BAL’s advanced technologies and resources and continue to expand my H-2 practice much faster than I could on my own.
BAL is award-winning when it comes to advancing the status of women attorneys in the profession. How important was that to you when you were considering joining BAL?
So important. I think BAL having such diverse partners, attorneys, staff — and particularly women — is awesome.
Most of my clients are men. The interaction with women partners and attorneys is so crucial to my growth, learning and understanding of balance in my own life. And I think women immigration attorneys — and women attorneys in general — are such a powerhouse.
Ashley Foret Dees is a partner with BAL and a leading national expert and strategist in the areas of H-2A and H-2B employment visas. She has over a decade of experience representing clients in agricultural, seafood, hospitality and other industries. Ashley is a regular speaker on H-2 visa topics at the American Immigration Lawyers Association (AILA) Annual Conference and AILA Mid-South Chapter, and previously served on the AILA National Pro Bono Committee. She is also a member and former H-2 Visa Chair of the AILA Department of Labor Liaison Committee. Ashley is fluent in Spanish and founded the Louisiana State Bar Immigration Law Section, which she chaired for several years.
BAL Senior Associate Cecilia Lai will speak on a panel about EB-1A/Bs, NIWs and O visas on Friday, March 31, at the Spring Conference of the Texas Chapter of the American Immigration Lawyers Association (AILA). We recently sat down with Cecilia to discuss these topics.
Both EB-1A and EB-1B petitions have always faced high scrutiny and must establish that the individual is internationally recognized as extraordinary or outstanding, resulting in a subject evaluation by USCIS adjudicators.
It can be difficult to manage expectations for both the beneficiary and employers due to inconsistent adjudications or a lengthy Request for Evidence (RFE) or Notice of Intent to Deny (NOID) from USCIS. The premium processing cases have a higher likelihood of receiving NOIDS that can be difficult to overcome, especially because you are only provided 30 days to respond. We have seen more successful outcomes when USCIS provided extensions for responses to NOIDs as part of COVID-related flexibilities when individuals were able to take advantage of the additional time. However, the flexibilities recently expired and will not apply for RFEs or NOIDs issued on March 23, 2023, and later.
Employers can use O-1s as a last resort to prevent the loss of work authorization for employees such as F-1 students who had no luck with the H-1B lottery or individuals in H or L who are maxing out on their time. When employers are faced with seeing individuals need to relocate from or leave the U.S., they should consider an O-1 visa, so they don’t have to transfer the individual outside the U.S., which can be costly, or worse, completely lose the talent.
The employer needs to have an appetite for risk and patience for the hiring process. O-1s are evidence heavy and highly subjective, so that can mean delays in hiring, especially if USCIS issues a Request for Evidence. We typically walk BAL clients through the evaluation for the O-1 to manage expectations for any risks of delays or denials, especially for highly sought candidates. Also, the approval rate for O-1 visas is quite high, generally between 80% and 95%.
Outside of the traditional occupations for O-1s, such as researchers, scientists, and artists and entertainers, most people don’t think about O-1s for business or other roles. While it’s true there are three criteria to meet — temporary nature of the role, demonstrated extraordinary ability by sustained national or international acclaim, or a record of extraordinary achievement in the motion picture industry — there is one that is a “catchall,” and that is “any other comparable evidence that shows someone has extraordinary ability.” This is an area that you can let the creative juices flow.
I first started in entertainment law while still studying for the bar when our family friend, who manages a native Dallas rapper, introduced me to an entertainment lawyer who needed assistance. But immigration law was probably my destiny. My maternal grandparents first came to the U.S. from China. My mother met my father when he was a foreign exchange student from Hong Kong studying in the U.S. When I finished law school, my family and friends were always turning to me for immigration advice. They wanted someone they could trust even though I didn’t yet have immigration law experience. So I made the switch from entertainment law to immigration law.
What’s really rewarding about immigration versus entertainment is you see things through to a resolution. You work with individuals who have a dream and dreams for their families, and you experience the positive impacts firsthand. With entertainment law in Dallas, there is seldom a “resolution.” We set up the client’s company and contracts, and things just don’t move forward or the client moves to L.A. for more opportunities. However, I am still involved in the industry as a legal advisor to the Asian Film Festival of Dallas and served as its executive director recently.
Cecilia Lai is a Senior Associate in BAL’s Dallas office. Cecilia previously handled immigration for one of the largest tech companies in the world. Currently, Cecilia works with multiple clients in the advertising and biotech industries. She finds innovative ways to effectively manage the companies’ immigration needs for foreign national employees in the United States. Cecilia has worked with the clients’ lead stakeholders to create a competitive immigration program in multiple industries and find solutions to talent acquisition and retention that align with their business goals. She finds innovative solutions during a time of fierce competition for STEM talent and a highly fluid immigration policy environment.
In this tight labor market where companies cannot afford to lose talent, delays in immigration processing are preventing U.S. businesses from retaining high-skilled workers in key job roles, such as tech, that are fueling the economic recovery.
Delays by U.S. Citizenship and Immigration Services in renewing work authorization for spouses of high skilled H-1B and L-1 workers are frustrating their ability to stay in the workplace. The delays have grown so long that it is now a common occurrence for these workers to see their employment authorization expire before their renewals are approved.
These ongoing delays are causing significant disruption for U.S. business who have been forced to take thousands of H-4 and L-2 employees off payroll and put projects on ice, while these employees wait for their employment authorization document (EAD) to be renewed. Employees whose work authorization lapses not only interrupt their careers; they may be unable to renew a driver’s license, obtain health insurance or travel. These spouses are highly educated and employed in high-skilled occupations, including in tech and other STEM fields.
H-4 spouses contribute an estimated $7.5 billion to the U.S. economy. In a lawsuit filed earlier this month, an H-4 spouse sued U.S. Citizenship and Immigration Services for causing him to lose his job as an analyst with one of the world’s leading tech companies because his work authorization expired while he waits for the government to process his renewal.
The watchdog Government Accountability Office has criticized the agency for failing to process immigration applications in a timely manner. While the number of annual petitions grew about 25% between 2015 and 2020, applications for employment authorization documents (EADs) surged by 80%, and the total number of pending cases jumped 85%, creating a growing backlog that is leaving many applicants indefinitely on hold. The GAO pointed to systemic USCIS flaws, including the lack of a sustainable workforce recruiting and retention plans, failure to request adequate resources and funding, and failure to track its caseload with a reliable case management process. “The growth in USCIS’s pending caseload and processing times impacts the individuals, families, and businesses who rely on the immigration system,” the report said.
So far, the agency has taken only incremental steps to address the backlogs and delays. The government could do much more to mitigate risks of current work authorization from expiring, such as providing automatic extensions of work authorization while renewal applications are pending and giving L-2 spouses automatic work authorization on the basis of their relationship to the L-1 visa holder, without needing to apply for an EAD. Under current policy, the earliest an applicant may file to renew their EAD is six months prior to the EAD expiration, but current processing times can take well over a year, leaving many H-1B and L-1 spouses out of work for months at a time. A class action lawsuit was filed last month seeking automatic extensions for spouses who have applied for EAD renewals.
U.S. companies have consistently advocated for H-4 spouses to be eligible for work authorization. These workers add depth of talent and skill to the U.S. economy: 90% of H-4 spouses hold a bachelor’s degree, nearly 60% have a master’s degree, and two-thirds of H-4 EAD-holders work in STEM fields. Moreover, H-4 spouses are eligible for work authorization only if they are already in line for permanent residency, so their contributions are not transitory.
While USCIS addresses its long-term workforce and funding issues in response to the GAO report, it should take immediate steps to mitigate the impact on employers and the economy when businesses lose valuable talent for no other reason than government processing delays.
Nassim Mahzoon is a Partner in the Santa Clara, Calif., office of Berry Appleman & Leiden LLP where she counsels clients on all aspects of corporate immigration and compliance, and provides holistic and strategic guidance to businesses and their employees.
This article was originally published in the California Business Journal on Nov. 3, 2021.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.