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U.S. business leaders tell BAL it has become easier to meet foreign talent needs.
A new report examines the human and economic costs of ending DACA.
And Lynden Melmed, the head of BAL’s government strategies team, joins us to discuss one organization’s vision for a second Trump administration.
Get this news 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.
USCIS announces a trial launch of E-Verify Plus.
A new study finds that immigrants are strongly linked to economic growth and innovation.
And more from the head of BAL’s sports and entertainment practice on the stalled WNBA debut of basketball star Nika Mühl and the challenges foreign female athletes face with the visa process.
Get this news and more in the special extended episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.
Michelle Funk, Delya Ghosh, Tiffany Derentz, Martin Robles-Avila, Eileen Lohmann and Matt Dillinger contributed to this article.
If the first few weeks of the year are an indication, it will be hard to miss immigration in the headlines in 2024. Already, it has emerged as a key issue in congressional spending fights and the 2024 presidential campaign, which is beginning to kick into a higher gear. Border policy and campaign rhetoric may drive the news cycle, but federal agencies will continue to work out of the spotlight on regulations that will have a huge impact on business immigration programs. On top of that, the U.S. Supreme Court will decide three cases that could upend current immigration litigation procedures. Here are five questions we are watching:
Big changes are in store for the H-1B program this year after the Department of Homeland Security published a 227-page H-1B “modernization” proposal in October 2023. One immediate question is whether changes to the H-1B lottery will be in place for this year’s cap season. Under U.S. Citizenship and Immigration Services’ proposal, the agency would shift to a one-beneficiary, one-selection system rather than the current employer-focused process. This proposed change is designed to eliminate incentives for bad actors to submit multiple H-1B registrations for the same individual — and has the potential to reduce the overall number of registrations and boost H-1B selection rates for employers. Business and immigration coalitions have called on USCIS to make immediate changes to the lottery. The agency has indicated that it may finalize the lottery provisions before the rest of the proposed rule and has submitted a final rule for White House review. With H-1B registration expected to open in March, however, the timeline is tight.
The State Department took a big step last month in announcing the launch of a domestic visa renewal pilot program, scheduled to begin Jan. 29. Domestic visa renewal has not been widely available since 2004, and advocates for its revival see it not only as a way to make visa renewal easier for certain individuals but also as a means to reduce the workload at embassies and consulates abroad. The pilot is limited in scope, open to approximately 20,000 H-1B holders whose prior visas were approved during certain time frames at U.S. visa processing posts in Canada and India. No one knows for sure what comes next, but the State Department has indicated that once the pilot concludes on May 1, it will evaluate its success before potentially resuming domestic visa renewals more broadly.
USCIS is poised to finalize increases to immigration filing fees in 2024 — the big question is by how much. In January 2023, the agency proposed a new fee schedule that would see fees increase by a weighted average of 40% — and more for most high-skilled classifications. Among the biggest increases would be a jump from $10 to $215 in the H-1B registration fee. Business and trade organizations responded to the proposal by saying that while USCIS must adjust fees to cover its costs, the agency should take steps to improve services and reduce fee increases where possible. According to its regulatory agenda, USCIS is targeting April 2024 to publish a final regulation. USCIS submitted the rule for White House review in early January, suggesting the agency may be accelerating its timeline. There will likely be a delayed effective date and litigation could further slow implementation, but employers should have an idea of how dramatic the fee increases will be within a matter of months.
In October, President Biden issued an executive order on artificial intelligence that included a call for streamlined immigration processes to help keep the U.S. competitive in AI and related fields. Among other measures, Biden called on the Department of Labor to consider updates to the “Schedule A” shortage occupation list. Employers seeking to sponsor foreign nationals for Schedule A jobs do not require permanent labor certification (PERM) to begin the green card process. The DOL is currently seeking public input on STEM and non-STEM jobs that should be added to the list and recommendations about how to establish a methodology for future updates. Employers will be watching this development carefully: Schedule A has not been updated since 2004, and the ability to bypass PERM for these shortage occupations can save months or even up to a year in the green card process.
In the immigration community, all eyes will be on the Fifth Circuit Court of Appeals this year, as it is expected to rule on the legality of the Biden administration’s regulation designed to “preserve and fortify” Deferred Action for Childhood Arrivals, or DACA. The ruling will almost surely be appealed to the U.S. Supreme Court, though the Court likely won’t hear the case during its current term.
The Supreme Court is poised to decide a trio of cases that do not facially involve immigration but could upend immigration-related policy and procedures. The justices heard arguments in November in Securities and Exchange Commission v. Jarkesy, a case questioning the scope and authority of administrative law judges to decide disputes over federal matters, including immigration violations. They heard two other cases on Jan. 17 — Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo — that challenge the decades-old Chevron doctrine, which requires courts to defer to federal agencies’ interpretations of statutes that are not clear or are silent on the question at issue. Taken together, the cases could have a revolutionary impact on immigration litigation, including the power that immigration judges have over noncitizens and the standard of review used by federal judges in reviewing immigration decisions.
What does all this mean for employers? The business community has shown support for reforming the H-1B lottery, piloting domestic visa renewal and updating the Schedule A list of occupations, all of which, in one way or another, make it easier to obtain a nonimmigrant visa or green card. Employers are understandably less enthused about the fee increases, which could dramatically increase costs amid continued frustration with USCIS delays and inefficiencies. The potential impact of the Supreme Court cases on business is difficult to determine.
The presidential election will also have major consequences for immigration programs. President Joe Biden has generally, though not always, pursued business-friendly policies on high-skilled immigration, while the Republican frontrunner, Donald Trump, took a much more restrictionist tack in his term as president and continues to use inflammatory rhetoric on the campaign trail. What seems clear is that the coming months will determine not only how immigration programs operate in this year but potentially for years to come.
Subscribe to the BAL newsletter to get the latest in daily immigration news and expert analysis.
In late April, U.S. Citizenship and Immigration Services released data showing what the U.S. immigration law community already knew: The H-1B registration system is broken.
This year, USCIS received 780,884 total registrations for just 85,000 visas available under congressionally mandated caps. The data also revealed that more than half of the registrations were submitted on behalf of beneficiaries with multiple registrations — i.e., multiple companies submitted registrations for the same individual. In April, the Wall Street Journal reported that roughly 408,000 registrations were submitted on behalf of just 96,000 individuals.
Employers are required to state that they actually intend to hire individuals they put in the lottery. USCIS raised allegations of abuse of the registration process, saying the large number of individuals with multiple registrations “raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary.”
Many of the problems were predicted when the registration system was implemented in 2020 and, if anything, it is surprising that the system wasn’t flooded to this extent sooner.
Before 2020, employers had to file full H-1B petitions the first week of April for H-1B-elgible foreign workers they hoped to hire. USCIS would then conduct a lottery to determine which petitions it would adjudicate.
USCIS designed the new registration system to reduce costs for employers and the administrative burden on the agency. Under the system, employers submit registrations in March on behalf of individuals they intend to sponsor, and then are invited to submit full petitions for those who are selected.
The problem is the registration system created a low barrier to entry. The registration fee of just $10 and minimal required information provide little incentive not to place foreign workers in the lottery. When it proposed the registration system, USCIS mentioned the risk of companies “flooding the system with non-meritorious registrations.”
This problem now appears to be a reality. So how can it be fixed?
Let’s start by giving USCIS some credit. The agency’s decision to release more detailed data than in the past has given stakeholders a peek behind the curtain and provided them a better opportunity to suggest solutions. In its April announcement, USCIS also said it had “already undertaken extensive fraud investigations.”
Furthermore, as the agency works on a proposed regulation to modernize the H-1B program, it has committed to “bolstering the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system.” USCIS has not yet indicated what specific measures it will propose, but these actions show the agency recognizes the gravity of the problem and is working on solutions.
However, the rulemaking process takes time, and according to the most recent regulatory agenda, the proposed H-1B rule is not expected until the end of the year. USCIS has also proposed increasing the registration fee from $10 to $215 as part of a broader proposal to dramatically increase fees to cover costs. The final increase could be smaller, but even a $215 fee might have a limited impact on the number of registrations companies submit.
In addition, uncertain timetables and the possibility of litigation for both the not-yet- proposed H-1B modernization rule and the fee rule — which has been proposed but not targeted to be finalized until March 2024 — make it impossible to know whether changes could be implemented before next March’s registration window.
The future of the H-1B registration process is of paramount concern. In the near term, USCIS should continue to provide as much transparency as possible to the public, including regarding the number of petitions it receives and its actions to address potential misuse of the system. Additional information about whether the agency plans to conduct a second registration lottery would enable employers to plan and set expectations with their employees.
While there is no silver bullet, some possibilities the agency could consider include selecting registrations by unique beneficiary, such that eligibility for H-1B sponsorship does not hinge on the number of registrations filed on a beneficiary’s behalf, and transitioning to online filing in conjunction with a “Known Employer” program.
The agency should continue to seek input from stakeholders and approach this issue thoughtfully but with urgency.
Employers can ill afford another lottery like this year’s, where just 14.6% of registrations were selected. In the absence of congressional action to raise the H-1B cap, which has remained at 85,000 since 2006, more transparency and a well-crafted regulation could help ensure this in-demand resource remains viable.
For all its limitations, the H-1B program remains the primary pathway for high-skilled foreign nationals to remain in or come to the U.S. to pursue a career. The program is crucial to helping large and small employers hire and retain needed talent in industries ranging from tech to health care to engineering. The importance of getting the registration system right cannot be understated.
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A proposed H-1B regulation is under White House Review. The October Visa Bulletin shows advancement in key employment-based categories. And analysis from the head of BAL’s Government Strategies team on why comprehensive immigration reform has proved so challenging.
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.
Over the past 43 years BAL has helped thousands of clients create an immigration program or enhance their existing one. Based on our experience and expertise, here are some considerations as you get started.
We’re sure you’ll have more questions as your program takes shape, and BAL would be happy to help you with proven, real-world answers.
Tiffany Derentz is a senior counsel at BAL’s Washington, D.C., office, and member of the firm’s Government Strategies team. She serves on the board of the Immigration Law Section of the Federal Bar Association and is a member of the American Immigration Lawyers Association.
Prior to joining BAL, Tiffany served as Deputy Chief of the Legal Advisory Opinions Division within the Visa Office, placing her at the forefront of legal issues impacting all facets of consular operations at U.S. embassies and consulates. She also served as a senior adviser to the Department of State’s Chief Legal Adviser for immigration affairs. In addition to her experience in D.C., Tiffany served as a consular officer at multiple posts overseas, including in the Middle East and Russia. She has direct in-person experience working with consular sections worldwide, the National Visa Center and the Kentucky Consular Center. We recently spoke with her about her work and her take on visa processing and other State Department hot topics.
Consular processing has significantly improved, although if you look at wait times for tourists and business visitors, they are still very long. Take, for example, India: We’ve seen B wait times improve by about 300 days, but they are still around 350 days or more.
Progress has been made in other ways: The State Department expects to fully staff embassies and consulates this year, and they actually processed more visas last year than they had in any year since 2019. The government recently improved administrative processing and gained some other efficiencies. For example, it used to be if you had a case in New Delhi, it would be adjudicated by an officer in New Delhi. Now you can apply in New Delhi and have a consular officer in Frankfurt or the United States adjudicate the application. This flexibility allows the State Department to process more cases for Indian nationals, which is a huge help in reducing backlogs.
Administrative processing is a term the government uses to mean some other action needs to be taken on a case — either the applicant needs to provide something, the consular officer needs to do something, such as get a legal opinion, or additional security vetting needs to be done. For cases that take longer, what you see as a “problem” or delay typically is security vetting. However, now there’s a National Vetting Center these cases are routed through that is supposed to decrease the number of people being flagged for administrative processing, and the vetting itself is taking much less time. Some cases will continue to take longer, but for those who appear for their interview or whose paperwork was submitted through interview waiver from November forward, most of those cases should take about two weeks compared to several months — and, in some cases, over a year — that we saw during COVID.
Prior to COVID, applicants were encouraged to apply for a visa in their home country or country of residence. This helped to reduce “forum shopping,” i.e., applicants trying to find a favorable post. There are also benefits to applying in the home country or country of residence. Consular officers learn the applicant pool and other local customs or conditions, such as what a normal salary is in the local currency and area as well as other factors that can impact visa adjudications.
Then COVID hit, and the government shut down for a few months. When offices reopened, they had a backlog and limited number of officers in key places to adjudicate cases. As visas cannot be adjudicated remotely by officers, COVID limited the number of people who could be in embassies and consulates, as well as in offices in U.S. government agencies that may have a role in the visa process. People had to apply where they were a national or resident because consulates didn’t have the bandwidth to take on extra cases.
More recently, the Visa Office advised consular officers to accept third-country nationals and, in some cases, have opened up appointment availability for certain applicants. For example, Indian nationals can apply in Frankfurt and Bangkok, where appointments have been set aside for them. Not all posts are able to accept third-country nationals though, so it is important to check the embassy’s or consulate’s website.
Yes! Athletes and entertainers are being delayed. For example, there was a big track and field event last summer in Oregon, the World Athletics Championships, which garnered media attention about athletes getting visas just hours before their races and flying to the United States. We’ve seen delays with both large and small sporting events. Over the next decade, that is going to be a particularly challenging issue because there are several major sporting events in the United States, including the Summer Olympics and Paralympics in 2028 and the World Cup in 2026, that will require a very clear and efficient visa process for athletes, coaches and support staff, as well as the fans. You can’t have sporting events without fans. Some of these people will be coming from countries that don’t have visa waiver as an option. In the past, that might have required additional screening, and the government will need to be able to process those in a timely manner to ensure the success of these events.
On the entertainment front, a number of bands have had to cancel concerts due to visa issues.
We don’t know much right now, as the State Department is still trying to decide who is eligible and work through how the pilot will run overall. The pilot is likely to include a small population of Hs or Ls, as they need to be able to test adjudication domestically before they launch a renewal program. They are going to have to collect fees and passports, and have staff to process these cases.
Domestic visa renewal has not been used, except in very limited circumstances for diplomatic and official visas, since 2004 because immigration laws were changed after 9/11. However, a State Department regulation has stayed in place that allows for domestic visa renewal for certain work visa categories — Es, Hs, Is, Ls, Os and Ps. It hasn’t been used in almost 20 years though, so the State Department has to set up an entire office and a new process in order to renew visas domestically. Once a domestic renewal program is launched, it will allow individuals in the United States to reapply for a visa domestically instead of being forced to go abroad. This will also open up more capacity at U.S. embassies and consulates, keeping appointments open to those who need it.
Before I graduated from law school, I was accepted to a fellowship program with the government called the Presidential Management Fellows (PMF) Program. As a PMF, certain government jobs are open to you. I was able to secure a position in the Visa Office. To be honest, I wasn’t looking to get into immigration, but I needed a job before I graduated and the job market was pretty tough. At the time, I didn’t really know what I was getting myself into or what government work was like. My first year in the program, I spent five months at the embassy in Moscow and was involved in planning the 2014 Sochi Winter Olympics. My experience in Moscow was a very big, pivotal time for me, both personally and professionally. It was the first of many incredibly unique experiences that only the U.S. government can offer. I’ve been in immigration ever since.
I appreciate being a member of the Government Strategies team because I get to work with incredible people and I can utilize my State Department background in a way that I feel is meaningful. Our Government Strategies team is truly unique. Combined, we have decades of experience in the U.S. government, and more specifically, in the agencies that handle immigration. We’ve been on the inside, so we know how the government works, who the key players are, and have extensive knowledge in immigration. We help our clients navigate complex legal issues and processes, and ensure they understand how changes may impact their immigration programs. Being able to share my experience at the State Department with others in a way that helps our firm and our clients is fulfilling in so many ways.
This alert has been provided by the BAL U.S. Practice Group.