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BAL Senior Associate Matt Dillinger spoke about H-1B visas on Friday, March 31, at the Spring Conference of the Texas Chapter of the American Immigration Lawyers Association (AILA). We sat down with Matt to discuss his work on H-1Bs and more.
We will discuss best practices for prepping for the 2024 cap season, new occupational codes used for H-1Bs, and how to handle employees in licensed professions. We will also discuss scenarios that require special considerations and creative legal arguments to successfully gain work authorization approvals.
There is a provision that allows people to extend their H-1B beyond the six-year maximum period if they have an approved immigrant petition but no green card is available. This is especially common for Indian and Chinese nationals for whom priority dates are significantly backlogged. But after the significant advancement of priority dates in 2020, many H-1B employees were no longer clearly eligible for these extensions, as they may have moved employers and thus not been able to file a green card application despite having been current for more than one year. Employees in this situation require a unique approach in order to continue to extend their status.
Many employers believe that when they file a change of employer petition for an employee, they must wait for approval by USCIS. But technically that employee can start working for a new employer as soon as the petition is received by USCIS. In the past, both employers and employees have shied away from doing that because Request for Evidence and denial rates were much higher. However, we are now seeing fewer RFEs and denials, so employers are becoming more comfortable allowing employees to start work before receiving final approvals. The same goes for employees.
Even experienced I-9 people might not know that there are special rules that make it possible to hire on receipt. Also, technically, employers don’t even need the formal USCIS receipt notice. You can submit I-9 paperwork based on the change of employer petition filing, proof of payment and proof of delivery.
I like things to be as clear and concise as possible. My approach is to provide a clear assessment of any risk I see, while also providing practical solutions or strategies, and minimizing the complexity of the situation, so the client feels confident moving forward.
I have always enjoyed learning languages and studying other cultures, so the international aspect of immigration law appealed to me. I find immigration law to be extremely rewarding. I feel good at the end of each day because I get to help my clients, help their employees and employees’ families and, in doing so, I believe I am making the United States a better place.
Matthew Dillinger is a Senior Associate in the Austin office of BAL. His practice focuses on developing and implementing creative strategies to meet the needs of his clients. He has worked with clients from a wide range of industries, including telecommunications, information technology, fintech consulting, higher education and healthcare, Matt believes strongly in pro bono work and has represented pro bono clients in DACA, U visa and asylum cases. In addition, he has served on the Leadership Board of the National Immigrant Justice Center.
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.
As H-1B cap registrations reached a new high and employers are gearing up to file their cap petitions, the business community should prepare for the recruiting challenges introduced by the registration lottery system and compounded by a competitive job market.
The U.S. unemployment rate reached a 50-year low while job openings hit 11.3 million in January. Without enough domestic workers to fill critical vacancies, companies depend on sponsoring H-1B employees, but a multiple-offer environment has some employers considering whether to sweeten the pot with creative recruitment strategies.
How does the lottery impact recruitment? This was the third cap season in which U.S. Citizenship and Immigration Services (USCIS) used the electronic H-1B registration process, requiring petitioners to enter a simple registration and pay a $10 fee for H-1B candidates. With such a low bar to register and high demand, USCIS received 483,927 registrations this season, 308,613 last year and 274,237 the year before – far exceeding the annual quotas on H-1B visas.
Even with this record number of registrations, USCIS held three lotteries last year and two the year before. Why multiple lotteries? The ability to fill all available H-1B visas—65,000 for the regular cap and 20,000 for the master’s cap—from lottery selections depends on USCIS receiving enough approvable petitions. When all available numbers aren’t used, USCIS conducts another lottery.
With historically low unemployment rates, it is increasingly common for several employers to pursue the same H-1B candidate. Multiple employers may sponsor the same H-1B beneficiary if each registration represents a legitimate business offer. If the foreign worker is fortunate enough to have more than one registration selected on his or her behalf, the sponsoring employers may choose to enhance the terms of their employment – including perks related to immigration sponsorship – to land the employee.
For example, H-1B employees typically want to bring their family members to the U.S., and companies may offer to pay visa fees and provide green card support to an employee’s spouse and children.
Additionally, H-1B employees intend to stay long-term and become U.S. permanent residents, so companies could consider offering green card support and broadening which employees they support if they currently restrict eligibility based on position or tenure. Likewise, the timing of green card support can be an attractive incentive because of chronic green card backlogs and years-long wait times. Employers who provide green card sponsorship on Day 1 might be better situated to woo H-1B employees.
Companies may also offer incentives to make the move to the U.S. easier for H-1B employees and their family, such as cultural integration assistance, local school tours and other services that demonstrate concern for the employee and may have an emotional appeal.
As businesses reboot from COVID, employees are increasingly demanding remote or hybrid work flexibilities. Nearly 20% of all high-paying professional jobs are now permanently remote, and experts predict that number will rise to 25% by the end of the year. With rising housing and gas costs, the economic benefits of remote work may be an attractive offering as well.
While USCIS works to refine its H-1B selection processes, employers must work with the challenges of the current system. That means making competitive offers, and considering other creative incentives to attract global talent.
Delya Ghosh is a Partner in the San Francisco office of Berry Appleman & Leiden LLP (BAL). With a breadth of experience, she serves clients of all sizes in a diverse range of industries, offering strategic counsel on corporate immigration law.