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In our last episode of the year, Jonathan Nagel provides an advisory update on the new European travel systems, and Gabriel Castro and Kristi Ngo suggest their favorite immigration-themed books, movies and media you may want to discover over the holidays.
Explore more episodes of the BAL Immigration Report podcast, available on Apple, Spotify and the BAL immigration news page.
This podcast 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.
In this week’s episode, BAL’s Steve Plastrik highlights the immigration trends for Fiscal Year 2024 that impacted employers including H-1B selection rates.
View the links below for visualized data of the trends mentioned in his analysis:
Have you started preparing for the upcoming H-1B cap season? Let us help you with your planning Register for the BAL Community Benchmarking webinar: H-1B Cap Planning on Oct. 16 with special guest Catalina Komin, Immigration & Mobility Specialist for Analysis Group.
All in-house immigration professionals can join the BAL Community and access all webinars and employer resources for free.
This alert has been provided by the BAL U.S. Practice Group.
In March, USCIS conducted an initial random selection for registrations for the Fiscal Year 2025 H-1B cap. Recently, they determined they would need to select additional registrations to reach the FY 2025 regular cap and as of Aug. 5, USCIS announced a sufficient number of registrations for the second H-1B lottery had been reached and all prospective H-1B petitioners with selected registrations that are eligible to file had been notified.
Only petitioners with selected registrations are eligible to file H-1B cap-subject petitions and every year demand outpaces supply. Under federal law, 85,000 cap-subject visas are available each year, including 20,000 set aside exclusively for advanced degree holders. In recent years, demand for H-1Bs has skyrocketed — even through a global pandemic and an uncertain economy. On top of that, the H-1B registration fee is set to jump from $10 to $215 next year, providing another hurdle for employers hiring highly skilled foreign national talent.
The H-1B program continues to be oversubscribed, and given the low selection rate in recent years, contingency planning is as important as ever. A good H-1B contingency plan for valued employees can set an organization up for success. Whether it is a backup plan for employees whose current work authorization will expire this year or next or an effective talent recruitment plan for future employees, organizations can utilize these common H-1B alternative visa options to better ensure sponsorship:
In this election cycle, the issue of immigration is not just about what is happening at the border. The direction of the H-1B visa program is also on the line.
The H-1B nonimmigrant visa program allows U.S. employers to hire foreign workers in specialty occupations to work temporarily in the United States. This in-demand program is the primary pathway by which employers can recruit and hire foreign workers with expertise in specialized fields such as technology, engineering and healthcare — often filling crucial skills gaps.
Since many immigration policy changes are made through the executive branch, the winner of the election will heavily influence the future of employment-based immigration. We can already predict what both potential futures might look like, assuming a Harris administration would likely continue the modernization initiatives started by President Biden and a Trump administration would bring back policies similar to those it attempted to issue at the end of its first term.
As a reminder, here is a look at the H-1B visa regulations the former president had in the pipeline before the 2020 election and what they could mean for a potential second Trump administration.
In its final days in office, the Trump administration issued a series of regulations aimed at restricting the use of the H-1B program as part of its implementation of Trump’s April 2017 “Buy American and Hire American” executive order. The order laid the foundation for many of the policies Trump’s administration pursued to restrict employment-based immigration programs. In a second Trump term, we would expect to see similar policy priorities.
The first of Trump’s H-1B regulations was the October 2020 Department of Labor wage rule, an Interim Final Rule (IFR) that — effective immediately — significantly increased wage obligations for H-1B, H-1B1, E-3 and PERM programs. The rule required that minimum salaries for foreign-born professionals be set far higher than what was typically paid to similar U.S. employees. No advance notice was given to employers, who were left scrambling to adapt.
The rule was blocked in federal court in December 2020, but had it not been, it likely would have had the effect of pricing H-1B visa holders and other employment-based immigrants out of the U.S. labor market.
The DOL published a similar final rule to amend H-1B wage obligations on Jan. 14, 2021, just days before the end of Trump’s presidency. The rule was scheduled to take effect on March 15, 2021 — during H-1B cap registration. After taking office on Jan. 20, 2021, the Biden administration delayed the final rule’s effective date and issued a public request for information to determine how to best approach the issue. A court vacated the Trump-era rule, and the Biden administration has not taken further action on the issue.
While it is unlikely that the same wage rule would be issued in a second Trump administration, as it was vacated in court, we expect that a second Trump administration would resume efforts to increase wage obligations by a significant margin.
The Department of Homeland Security under the Trump administration also issued a second rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” on Oct. 8, 2020 — the same day DOL issued the wage rule. This IFR had a 60-day delayed effective date, and therefore did not ignite the kind of chaos we saw following the wage rule. Although this rule was also blocked in court, the Trump administration still attempted to issue a final rule by posting the text of it online a week before President Biden’s inauguration.
Had the rule gone into effect, it would have narrowed eligibility for the H-1B visa, including by providing that a position must always require a degree in a directly related specific specialty to qualify as a “specialty occupation.” In addition, the rule would have heightened evidentiary requirements for positions involving third-party placements and shortened the validity period for those cases.
Finalized in January 2021, the H-1B wage-prioritization regulation would have reshaped the H-1B cap selection process and limited opportunities for early career professionals. The rule was scheduled to take effect March 9, 2021, just before cap registration, but the Biden administration issued a notice on Feb. 8 delaying the effective date. Although it never took effect, the U.S. Citizenship and Immigration Services regulation would have replaced the annual H-1B lottery with a new selection process that prioritized H-1B registrations based on the wage level the petitioning employer would pay the beneficiary.
The proposed prioritization system would likely have eliminated eligibility for Level 1 and many Level 2 positions. Newly graduated international students would have been most impacted, as they are more likely to be hired into entry-level positions that offer Level 1 and 2 wages. In September 2021, a federal court vacated the rule and the Biden administration later withdrew it. Though President Biden did signal support for a wage-based allocation process, USCIS did not take any action to pursue this policy during his administration.
The transition between the Trump and Biden administrations brought about great uncertainty for employers because it was not clear if any of Trump’s rules were going to be in place for the 2021 H-1B cap season, for which companies had already spent months planning. We watched, in real time, as all three Trump rules went through litigation, were revisited by the Biden administration and were ultimately vacated in court.
Along with the restrictive H-1B policies Trump attempted during his first term, another change we would expect to see again in a potential second term is the rescission of the longstanding “deference policy.”
In October 2017, USCIS issued a policy memorandum that took effect immediately, directing USCIS officers to no longer give deference to prior agency determinations in extension of status cases. USCIS officers began reviewing extension cases as if they were completely new petitions. As a result, the agency issued requests for evidence and denials at higher rates than ever before. This led to a great deal of confusion and anxiety among foreign national employees and created challenges and business disruptions for employers.
The Biden administration reinstated the deference policy in April 2021 via policy memorandum. In October 2023, USCIS proposed to codify the policy into the regulations as part of the H-1B modernization proposal, which is currently moving through the regulatory process. Though the Biden administration has moved to make the policy permanent, it is currently only a policy memorandum. If the policy is not codified before Biden leaves office, a second Trump administration would be able to once again rescind the deference policy by simply issuing a policy memorandum — and create the same unpredictable, inconsistent adjudication environment we saw during the first Trump term.
If Trump is elected for a second term, it is highly likely that the administration would pursue similar policies. Here are three ways you can be prepared for that potential scenario:
BAL’s Government Strategies team is well-versed in these regulations and can consult your organization on the best path forward. Schedule a consultation with our team to get started.
This article was originally published on Law360.com.
The H-1B nonimmigrant visa is one of the most popular work authorized visa options among U.S. employers, but the overwhelming demand exceeds the limited supply since H-1B visas are subject to an annual cap of 85,000 visas, with 20,000 specifically reserved for individuals with a U.S. Master’s degree or higher.
When U.S. Citizenship and Immigration Services receives more H-1B registrations than there are visas available (which has been the case for more than a decade), the agency randomly selects who can file an H-1B petition through a lottery system.
After USCIS conducted a second H-1B lottery selection for Fiscal Year 2025, our inboxes were flooded with questions from clients. Here are our responses to some of the top questions we received.
Before we get into what’s next, let’s quickly recap where we’ve been.
USCIS opened H-1B cap registration for Fiscal Year 2025 from March 6 through March 25, 2024. That same week, USCIS began sending selection notices and starting April 1, petitioners with selected beneficiaries were able to submit H-1B petitions on their behalf. The overall registration selection rate for the first lottery was 25.6%.
In late July, USCIS announced that it would conduct a second H-1B registration lottery out of the previously submitted registrations. The second lottery only applied to the regular cap as the FY 2025 master’s cap numerical allocation had already been met. The second lottery increased the selection rate by 3.1%, resulting in a 28.7% total registration selection rate.
So, what’s next for those who have been selected? Well, now it’s time to verify that all the information provided at the time of registration is still accurate or if the case needs to be updated. If it remains accurate, then we’re submitting Labor Condition Applications to the Department of Labor, getting those certified and filing the H-1B petitions with USCIS.
There is a 90-day filing window within which petitioning employers can submit H-1B petitions. The window ends November 7, 2024.
It’s important to note that being selected in the lottery really is just the first step. Being selected in the lottery merely allows the petitioning employer to file an H-1B petition on behalf of the selected employee in which the petitioner must establish eligibility for H-1B status.
Something new this year is if a beneficiary is selected by one petitioner, they are selected by all.
In short, if a foreign national received competing job offers, and multiple employers submitted registrations on their behalf, then the individual gets to decide which employer they wish to proceed with and which employer will ultimately file an H-1B petition on their behalf.
Let us be clear though: the individual can’t just take their selection notice to any employer and apply for a job. The petition must be filed by an employer who submitted a registration for that individual.
Given the amount of time that passes between preparing for H-1B registrations and the selection period, especially in the case of a second lottery, no doubt circumstances change.
There are individuals who may have been on time-limited work authorized visa statuses, such as F-1 students on Optional Practical Training whose work authorization may have lapsed and they’ve now changed status, gone back to school or departed the U.S.
We’ve been talking to organizations to see if there is still interest in sponsoring those individuals. For some, there certainly is and they’ve kept in touch knowing that the lottery remained open and there was a chance that a selection could come through. But there are certainly employers who have already severed ties with beneficiaries whose employment authorization lapsed and therefore will not proceed.
For those not selected, their registration remains active and in “Submitted” status. USCIS will take in the petitions from the second lottery selections and determine whether they now have a sufficient number to close the annual cap. Until that number is reached, the cap will potentially remain open.
When the annual cap is met and USCIS is no longer accepting H-1B petitions, the status of those cases will change from “Submitted” to “Not Selected.”
It is extremely unlikely that there will be a third round of H-1B selections this year. We were honestly surprised to see a second lottery considering that USCIS has met the annual cap in the first lottery for the past few years. Maybe organizations were a bit more optimistic in March when registering than in the summer when having to file the petition. But given the fact that we only saw a 3.1% selection rate with the second round, we’re likely at that annual cap.
At this point, we’re advising employers to plan as if their unselected employees will not be selected and to move forward with any other potential options available. For example, some employees may be eligible for other visa statuses, such as O-1, TN, H-1B1 or E-3. In addition, some employees may be eligible to work as a dependent of their spouse, if they hold certain immigration statuses.
Whatever your luck in the lottery this year, our team is equipped and ready to help you file a H-1B petition for selected employees, strategize a contingency plan or start preparing for next year’s lottery.
As an HR or global mobility professional, your plate is already full. Adding visa requirements to the mix can feel overwhelming. But by familiarizing yourself with the different visa types, you can smoothly navigate the evolving immigration landscape and enhance your recruitment and mobility strategies.
To support your global hiring and relocation efforts, this article explores some of the most common nonimmigrant visa types and their specific requirements.
The H-1B visa is designed for foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as technology, engineering and healthcare.
Key requirements:
BAL insight: Previously, the H-1B lottery allowed multiple registrations for the same beneficiary by different employers, increasing the chances for certain individuals. In 2024, USCIS updated its rules and now limits registrations to one per beneficiary, the so-called beneficiary-centric process, regardless of how many employers submit registrations on the foreign national’s behalf. This change aims to level the playing field and give every applicant an equal chance of selection. Even if your H-1B registrations were not selected, BAL can work with you to identify alternative options.
The L-1 visa is for employees transferring within their multinational company to a U.S. office. There are two categories: L-1A for executives and managers and L-1B for employees with specialized knowledge.
BAL insight: L-1 applicants can apply under a company’s approved Blanket L petition, which allows applications for the visa directly at a U.S. Embassy or Consulate abroad or a Canadian port of entry (Canadians only). A company may qualify for a Blanket L petition by meeting certain regulatory criteria, including engaging in commercial trade or services, doing business for one year or more with an office in the U.S. and having three or more domestic and foreign branches, subsidiaries and affiliates. L-1B applicants are not eligible to apply under the Blanket if they do not have at least a bachelor’s degree in a related field.
The O-1 visa is for individuals with extraordinary ability in the sciences, arts, education, business or athletics, or extraordinary achievements in the motion picture and television industry.
BAL insight: The team at BAL has experience helping foreign nationals obtain an O-1 visa and can assess on a case-by-case basis for eligibility and evidentiary requirements. Check out our case study to see BAL’s visa expertise in action with a biotech company.
The TN visa allows qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.
The H-1B1 visa allows specialty occupation workers from Chile and Singapore to temporarily work in the U.S. An annual maximum of 1,400 Chilean national professionals and 5,400 Singaporean national professionals in specialty occupations may work in the U.S. in H-1B1 status.
The E-3 visa allows Australian professionals in certain specialty occupations to temporarily work in the U.S. A maximum of 10,500 Australian citizens per fiscal year are allowed to work in the U.S. in E-3 status.
BAL is committed to helping HR and mobility professionals reduce immigration complexity by guiding you through recent shifts in immigration policy. To help you stay informed, here are a few emerging trends that may impact your approach to hiring.
Immigration is a complex industry that requires specialized partners to help you navigate the ever-changing landscape in real time. To assist you in managing these challenges, we invite you to join BAL Community — an interactive forum developed exclusively for HR and in-house mobility professionals. By connecting with peers and experts, you can ensure your organization remains compliant and competitive in the global talent market.
In this week’s episode, our legal experts answer questions regarding the H-1B second lottery cap selection announcement — and whether to expect a third lottery.
Also, as the Olympics draw to a close, we reveal which 2024 immigration policies have earned gold, silver and bronze medals in our eyes, and highlight the top immigration news.
Explore more episodes of the BAL Immigration Report podcast, available on Apple, Spotify and the BAL news site.
Since 2021, the semiconductor industry has announced nearly $80 billion in new investments in the United States. Congress passed the CHIPS and Science Act of 2022 to strengthen semiconductor manufacturing, development and research and design in the United States. Most recently, on July 9, 2024, the Biden-Harris Administration announced an investment of up to $1.6 billion to establish and accelerate domestic capacity for semiconductor advanced packaging.
Importantly, the significant demand for high-end chips is the result of the recent surge of research and applications in artificial intelligence (AI). Advancements in AI research is centered on the use of high-performance chips to construct computing platforms. With the federal funding incentives and an increasing demand for chips, the U.S. semiconductor industry is positioned for high-stakes competition worldwide.
The semiconductor industry relies on a highly specialized combination of education, skills and expertise. Identifying key talent plays a pivotal role in this rapidly evolving industry. A shortage of skilled professionals could lead to delays or hinder the full utilization of invested capital.
Companies in the semiconductor industry are in a race to attract and retain talent to ensure their projects progress as planned to secure their market share and further invest in new research areas. As such, companies must be strategic in global workforce planning. This includes ensuring that their foreign national employee population maintains stable and secure options for U.S. employment authorization.
While there is a broad range of U.S. work permit categories, these are some of the most common visa classifications to hire highly skilled foreign national talent into the semiconductor industry.
H-1B visas are the most sought visa type among semiconductor companies, including but not limited to the following occupations: electrical engineers, electronics engineers, industrial engineers, software developers and logistics engineers.
The H-1B program permits employers to temporarily employ eligible foreign workers for a maximum of six years. One of the significant benefits of the H-1B visa is the possibility of extending the H-1B status beyond the statutory six-year limit if the foreign worker has reached certain milestones in the green card application process.
However, noted limitations to the H-1B visa program are timing and availability. H-1B visas are subject to a registration process and a lottery system. Employers that are interested in registering their employees in the H-1B lottery must plan ahead and implement contingency planning in the event the employee is not selected in the lottery.
The second most common visa type, particularly for global semiconductor companies, is the L-1 visa. The L-1 visa category provides opportunities for U.S. employers with qualifying international offices to transfer employees in either managerial (L-1A) or specialized knowledge (L-1B) positions from a foreign qualifying entity to their U.S. entity. The qualified employee must have at least one year of managerial or specialized knowledge experience with the foreign entity within the three years immediately preceding the filing of the L-1 petition.
For instance, companies may utilize the L-1 visa for an employee to transfer semiconductor device fabrication technology knowledge from a foreign entity to the U.S. entity. Companies also tend to transfer managers in different time zones to the U.S. to better manage their U.S. teams against tight project completion deadlines.
The L-1A visa can be renewed for up to seven years. On the other hand, the L-1B visa has a five-year limit. Engineers in the L-1B category may gain managerial responsibilities during their employment in the U.S. They are permitted to amend their status to L-1A to benefit from the additional two years of employment authorization. Companies who wish to sponsor their L-1 employees for a green card tend to start the process early, as it can take several years depending on the employee’s country of birth and visa preference category.
Pursuant to bilateral agreements between the U.S. and another country, certain nationalities are eligible for temporary nonimmigrant visas.
In general, individuals demonstrating extraordinary ability in business, science, education, art or athletics may qualify for an O-1 visa. Employers in the semiconductor industry tend to pursue this option for their engineers who have an advanced degree(s) and distinguished achievements, including published journal articles, peer review for academic journals, national or international awards and/or employment in a critical or essential capacity for distinguished organizations.
Employers may request up to three years initially and may extend the petition indefinitely in one-year increments. Due to the high legal standard as well as the significant required evidence for an O-1 visa, the preparation process is long and labor intensive. As such, employers should plan accordingly.
It is challenging to navigate immigration considerations while balancing the demands of an industry that is positioned to experience explosive growth. For this reason, it is critical for semiconductor companies to engage experienced immigration counsel to plan for and mitigate any possible employment interruption of their foreign national employee population.
BAL is a leading corporate immigration law firm with over 40 years of experience. We partner with organizations in the semiconductor industry and other tech fields to power human achievement, ensuring you have the highly skilled talent you need to be competitive. Our team of legal immigration experts will ensure a timely, compliant process that takes the administrative burden off your plate. Schedule a consultation to learn how we can support your immigration program.
In this week’s episode, BAL’s Eileen Lohmann discusses immigration regulations former President Trump had in the pipeline before the 2020 election and what they could mean for a potential second term. Plus, the immigrant impact on Team USA and the latest U.S. and global immigration news.
The Supreme Court rules in a visa denial case involving a U.S. citizen and her non-immigrant spouse.
An American Immigration Council report reveals increasing reliance on H-2A workers.
BAL’s Steven Plastrik breaks down the results from our election survey.
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.