Search
Contact
Login
Share this article
With a new Congress sworn in in January, Washington has seen a power shift and leadership changes that will shape the immigration debate in the coming year. The Republican-led House of Representatives will focus on immigration oversight and challenges at the border; however, policy changes will continue to come primarily from the executive branch. The focus of executive agencies will be not only the border but also high-skilled immigration programs such as the H-1B program. The judicial branch, meanwhile, will continue to play its role in reviewing the legality of immigration policy changes, including a high-profile enforcement case that could have far-reaching implications.
Read BAL’s full report on the 2023 U.S. immigration landscape here.
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.
DALLAS, March 21, 2022 /PRNewswire/ — BAL Partner Lynden Melmed testified before the Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Safety, in the hearing “Removing Barriers to Legal Migration to Strengthen our Communities and Economy.” Lynden leads BAL’s Government Strategies Team and previously served as Chief Counsel for U.S. Citizenship and Immigration Services.
Lynden’s testimony sounded the alarm that the wait time for employment-based immigrants to get a green card is at a tipping point. “If you ask any company in any industry what the single biggest problem is with the U.S. high-skilled immigration system, you will encounter something rare in the immigration debate: consensus,” Lynden said. “All agree that the lengthy green card backlog is the central problem.”
Pointing to systemic factors contributing to years-long wait times – from outdated manual processing to burdensome policies – he warned that the growing backlog cannot be solved by staffing or resource allocation. Further, he emphasized that improvements to the immigration system would boost the economy, saying, “Expanding legal immigration would increase the pace of economic growth, lower the budget deficit by nearly $3 trillion over 10 years, and boost per capita income by $1,700 over 10 years.”
Lynden stressed the demand for global talent to fill roles in STEM and other fields in order for the U.S. to remain competitive, and noted that the U.S. is losing talent to other countries like Canada that offer a streamlined permanent residency process. He concluded his testimony by offering practical solutions that focus on U.S. competitiveness and job creation. Pointing to proposals such as increasing the number of employment-based visa numbers available to skilled immigrants, recapturing unused green card numbers, and streamlining filing requirements, he urged Congress to take action.
“By doing nothing, the U.S. is going backwards,” he said.
“We’re glad to see Congress’ interest in addressing problems in the U.S. immigration system, and there’s no one better informed on this issue than Lynden,” said BAL Managing Partner Jeremy Fudge. “He and our Government Strategies team are well-connected with key policymakers, advocate for businesses and high-skilled immigration in Washington, and keep our clients and industry leaders informed about anticipated policy changes and how they will impact their businesses. He is the preeminent expert on U.S. immigration policy, and we are hopeful that Congress is persuaded to act.”
Watch the full hearing.Read Lynden’s testimony.
About Berry Appleman & Leiden LLP (BAL)BAL, the world’s leading corporate immigration law firm, ranks #1 on the Diversity Scorecard by The American Lawyer (2020 and 2021), #1 on Law360’s Diversity Snapshot (2020 and 2021), and the #1 Law Firm for Women according to the National Law Journal (2019, 2020 and 2021). BAL’s Cobalt® digital immigration services platform won the 2020 CODiE Award for Best Legal Tech Product, the prestigious CIO100 award for Innovative Use of Intelligent Automation in Immigration Services, and Legalweek‘s Most Innovative Law Firm Operations Team of 2021. BAL is singularly focused on meeting the immigration challenges of corporate clients around the world in ways that make immigration more strategic and enable clients to be more successful. Established in 1980, BAL has consistently provided immigration expertise, top-notch information security and leading technology innovation. The firm entered into a strategic alliance with Deloitte UK to create the world’s first global immigration service delivery model. BAL and its leaders are highly ranked in every major legal publication, including Best Lawyers®, Chambers and Partners, The Legal 500, and Who’s Who Legal. See website for details: https://www.bal.com
SOURCE Berry Appleman & Leiden LLP
Media Contact: Emily Albrecht Senior Director — Marketing & Communications ealbrecht@bal.com 469-559-0174
DALLAS, March 3, 2022 /PRNewswire/ — Immigration technology provider Dunasi, in partnership with leading immigration firm BAL, has released a groundbreaking white paper, detailing their analysis of U.S. Citizenship and Immigration Services (USCIS) processing times. Leveraging 40 years of immigration experience and aggregated data from over 1.5 million cases, BAL compared its data to USCIS data to determine how accurate USCIS processing estimates are and to identify trends in processing timelines. 2021 Processing Time Trends – Dunasi (dunasitech.com)
“With the coronavirus pandemic compounding immigration delays, our clients need a trusted source to give them an accurate answer about their case processing time,” said Chanille Juneau, Chief Technology Officer at BAL. “We know BAL’s projections tend to be more accurate than USCIS estimates, so we did a deep dive into the data to help immigration applicants understand what to expect for each case type.”
The white paper analyzes the accuracy of USCIS predictions and recent processing trends, answering frequently asked questions such as: “How do USCIS processing time predictions compare with actual processing times?” and “Which application types are most delayed?”
Along with pinpointing the case types and service centers experiencing the lengthiest processing delays, the paper evaluates the role of recent immigration developments on processing times, such as the DHS Office of the Inspector General’s report criticizing USCIS’s manual processing system.
After identifying some concerning USCIS trends, the paper looks at USCIS plans to modernize its processes and speed case resolution. Drawing on BAL’s legal expertise, the paper also offers practical strategies for foreign nationals to improve their case processing times.
“We’re proud to lead the industry in innovative immigration technology, and we feel an obligation to use our wealth of tech expertise to benefit people around the world,” said BAL Managing Partner Jeremy Fudge. “That’s exactly what we’ve done in this report; Chanille and her team have discovered useful insights, identifying USCIS trends and discrepancies, to give foreign nationals more confidence in their immigration journeys.”
About Berry Appleman & Leiden LLP (BAL) BAL, the world’s leading corporate immigration law firm, ranks #1 on the Diversity Scorecard by The American Lawyer (2020 and 2021), #1 on Law360’s Diversity Snapshot (2020 and 2021), and the #1 Law Firm for Women according to the National Law Journal (2019, 2020 and 2021). BAL’s Cobalt® digital immigration services platform won the 2020 CODiE Award for Best Legal Tech Product, the prestigious CIO100 award for Innovative Use of Intelligent Automation in Immigration Services, and Legalweek‘s Most Innovative Law Firm Operations Team of 2021. BAL is singularly focused on meeting the immigration challenges of corporate clients around the world in ways that make immigration more strategic and enable clients to be more successful. Established in 1980, BAL has consistently provided immigration expertise, top-notch information security and leading technology innovation. The firm entered into a strategic alliance with Deloitte UK to create the world’s first global immigration service delivery model. BAL and its leaders are highly ranked in every major legal publication, including Best Lawyers®, Chambers and Partners, The Legal 500, and Who’s Who Legal. See website for details: https://www.bal.com.
As markets bounce back from the economic disruption caused by Covid-19, activity in the area of corporate mergers and acquisitions is on the rise at a time when immigration policies under the Trump administration are increasingly hostile toward foreign workers.
The current environment mandates that companies pay even closer attention than usual to the immigration obligations and consequences of corporation transactions. Companies seeking to acquire or merge with other entities may not be aware of complex immigration requirements and restrictive measures under the current administration when it comes to the acquired entity’s foreign national employees.
The acquiring company should conduct due diligence — preferably before the purchase — to assess compliance obligations and any potential negative consequences with respect to both the company and immigration-supported employees. Human resources teams should understand the confidentiality protocols surrounding the deal and how best to engage with the target company’s visa holders, since direct communication may be limited during the due diligence phase.
The business immigration strategy will turn on the nature of the acquisition, visa category of the target company’s affected employees, and timing of the deal’s signing and closing. Depending on how a sale is structured — stock versus asset, for example — the new employer who acquires employees on temporary work visas, such as H-1Bs, may be required to file new petitions with U.S. Citizenship and Immigration Services and new Labor Condition Applications with the Department of Labor, which set the employee’s wage and hours.
Employers are subject to audits by the Department of Homeland Security and the Labor Department. H-1B workers who begin working for a new employer that is not a successor-in-interest run the risk of violating their immigration status unless certain H-1B “portability” regulations apply allowing them to begin working for the new entity as soon as a new petition is filed. Depending on the number of foreign employees, the new employer may fall under the definition of an “H-1B dependent” employer, and therefore subject to heightened compliance measures and hefty additional government fees.
While certain visa types — Australians (E-3), Singaporeans (H-1B1), Chileans (H-1B1), Canadians (TN) and Mexicans (TN) — have historically allowed workers from specific countries to apply for new visas at the U.S. consulate or port-of-entry to mitigate against changes resulting from a corporate acquisition or reorganization, the current landscape practically removes these options from the table. With U.S. consulates worldwide still largely closed for routine visa issuance, various travel bans still in effect, and other company guidance related to Covid still in place, filing petitions in the U.S. for these nationals may be the most viable option.
The L-1 category, a common visa type for multinational companies sending foreign workers to the U.S. from an overseas office, requires that the new employer maintain a qualifying relationship with the U.S. entity for the duration of the visa sponsorship. A change in corporate structure could impact whether L-1 visa holders remain eligible. Moreover, an international deal that does not include the L-1 visa holder’s foreign office precludes the multinational manager green card path and requires U.S. employers to pursue costly labor market tests.
If the new employer terminates employees on work visas, such as H-1B, L-1, TN, H-1B1, E-3, or O-1 nonimmigrants, those workers will have 60 days or until their authorized stay expires, whichever is shorter, to find a new employer that is willing to file an extension or change of their immigration status. Companies should also assess the immigration consequences for employees who are in the green card process, as different obligations are triggered depending on what stage of the process an individual is in, and the consequence can be severe for those who have been waiting years, sometimes more than a decade, in the green card backlog. If U.S. workers are laid off, this also may affect the employer’s ability to file labor certifications for at least six months.
The Trump administration signaled early on that it will enforce I-9 violations strictly against employers, imposing a record $95 million in fines on a company in 2017 for improper procedures in verifying whether employees are authorized to work legally in the U.S. Fines are imposed per violation and can add up quickly if the employer’s I-9 practices are faulty. Companies acquiring an entity are well-advised to ensure that the acquired entity’s I-9 procedures and E-Verify are fully compliant before taking on liability.
Mark T. Yelich is a Senior Associate in the McLean, Va., office of Berry Appleman & Leiden LLP.
This article was originally published in the Washington Business Journal.
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.