Search
Contact
Login
Share this article
Federal authorities increase the automatic extension period for certain employment authorization documents.
U.S. Citizenship and Immigration Services releases data showing its progress in reducing processing times.
And a ruling out of Georgia draws the attention of the immigration law community.
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.
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.
The cost of running an immigration program at a U.S. company just went up — a lot.
On Jan. 31, U.S. Citizenship and Immigration Services published a final regulation to raise immigration filing fees — and high-skilled categories saw some of the biggest increases. On April 1, the fee for an H-1B petition increased from $460 to $780 (70%), and the fee for an L-1 intracompany transfer petition increased from $460 to $1,385 (201%). All of that is before a new $600 Asylum Program Fee ($300 for small employers) is added on for each employment-based nonimmigrant or immigrant filing. Analysis from the BAL Government Strategies team shows that a typical small- or medium-sized company may see the amount they spend on filing fees more than double.
None of this is good news.
At the same time, the fee increases present an opportunity for companies to take stock of their immigration programs and reassess whether they are doing everything they can to take advantage of policy improvements that the Biden administration has made.
The fee increases are the first since 2016, and USCIS has said it will put the additional revenue to good use — not only by helping them meet the challenge of expanded humanitarian programs but also by improving processing times and reducing backlogs for employment-based filings. While the business community was clear that it would have liked to see USCIS implement additional efficiencies before raising fees, the administration has shown good faith by working to streamline programs with its current funding level. Consider:
Understandably, we have heard plenty at BAL from employers frustrated with how dramatically fees increased. What we have not heard, however, is that employers plan on dramatically cutting back their immigration programs. This is good news — and not only because it means companies will continue to recruit top workers to help keep them competitive.
Despite higher fees, there is ample evidence that it is a good idea to invest in foreign workers now, at a time of generally favorable policies. Take the H-1B program as one example. The H-1B registration fee has increased from $10 to $215 for next year’s cap registration, which gave employers an incentive to put eligible employees in the lottery this year if they were able to do so. On top of that, for beneficiaries that were not selected, employers have more favorable options for H-1B alternatives now than they previously did. The administration has added new qualifying fields of study to its STEM Designated Degree Program List, making more recent graduates eligible for extended Optional Practical Training. Officials also provided clarifying guidance on O-1 “extraordinary ability” visa criteria, making this category an increasingly common option.
None of the administration’s immigration programs are ensured to continue under future administrations. In the current political environment, there is no telling how long they will last.
Donald Trump has emerged as the Republican Party’s presumptive nominee for president. Whatever you think of Trump’s politics, it is plainly true that when he was in office, it was harder to recruit and retain high-skilled foreign workers. H-1B denial rates skyrocketed and processing backlogs ballooned at understaffed agencies. COVID-19 only made the problems worse.
Nobody knows what Trump may do if he wins this year’s election, but it certainly seems unlikely he would decrease immigration fees. Employers could be stuck with higher rates for reduced services.
The adage “never let a crisis go to waste” is instructive as employers face higher costs and uncertainty about the future of favorable immigration policies. While no one enjoys paying higher fees, employers should review their immigration strategies to take advantage of easier processes now before it’s too late.
John is a partner and head of BAL’s New York office focused on corporate clients with a range of immigration-specific issues and challenges. This article originally appeared in the most recent edition of Mobility Magazine.
It’s that time of year again for employers planning to secure nonimmigrant talent.
U.S. Citizenship and Immigration Services conducted the H-1B lottery last week to determine which registrations will be eligible to file petitions. Although the data on this year’s lottery selection rates is not yet available, the good news is that the current trend in low H-1B denial rates means a high probability of approval for those who have been selected. This hasn’t always been the case.
Despite significant improvements in recent years, H-1B denial rates have fluctuated wildly under the different administrations. From 2013 to 2015, during the Obama administration, the H-1B denial rates for initial employment were 7%, 8% and 6%, according to analysis of USCIS data by the National Foundation for American Policy. They rose substantially to 10% in 2016, the first year of the Trump administration.
With that administration’s more restrictive policies — including the “Buy American and Hire America Executive Order” of 2017 and the “Recission of the December 22, 2000 Guidance memo on H-1B computer-related positions,” which instructed adjudicators to deny petitions for many occupations interpreted as not requiring a bachelor’s degree — denial rates surged from prior years, peaking at 24% in 2018.
Source: National Foundation for American Policy
During the last year of the Trump administration, denial rates dropped to 13% in 2020 due in part to adverse judicial rulings. Denial rates continued to drop under the Biden administration, hitting their lowest point in 2022.
There was a slight bump in denial rates from fiscal year 2022 (2.2%) to fiscal year 2023 (3.5%), the NFAP analysis showed. The NFAP reported that about 200 medium-sized businesses accounted for two-thirds of these denials, possibly because smaller and medium-sized companies may not have expert counsel or structured immigration programs that can help ensure the right legal requirements are met. For larger companies — which typically utilize dedicated immigration counsel — denial rates are nearer to zero percent. This low denial rate trend is not likely to reverse itself for the remainder of 2024.
Whether the trend will continue beyond that is up in the air. After all, this is an election year. Under a Biden administration, denial rates could hover near the current status quo. However, a Trump administration could be less predictable and return to more restrictive policies.
The decline in H-1B denials has brought predictability that didn’t exist for employers just a few years ago. For larger employers who utilize immigration counsel, the H-1B denial rate is near zero, compared to nearly 25% in 2018.
This year’s changes to the H-1B selection process do add a bit of unpredictability because beneficiaries selected in the lottery will get to choose among employers if more than one employer submitted a registration on their behalf.
And in the broader picture, the overwhelming demand for a limited supply of H-1B cap-subject visas (just 85,000 per year) still makes planning a challenge. The new selection process may eventually lead to an improved lottery selection rate; however, legislative action is needed to address the perpetual H-1B visa shortfall.
H-1B registration has closed and petition filing begins next week.
The government opens an H-2B cap for returning workers.
And a look at how employers have been preparing for major USCIS filing fee increases.
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.
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.
A lawsuit aims to stop U.S. Citizenship and Immigration Services fee hikes.
State Department data shows a continued increase in green card issuance.
And with March Madness tipping off, the BAL Sports & Entertainment team creates a tournament bracket of their own.
A federal judge dismisses a lawsuit challenging a Biden administration immigration program.
U.S. Citizenship and Immigration Services announces it has reached the H-2B cap for the second half of the fiscal year.
And an H-1B cap update with BAL Senior Associate Matt Dillinger.
U.S. Citizenship and Immigration Services is poised to implement the biggest increase in immigration filing fees in years. BAL analysis indicates that larger companies could see fee increases of 115% to 175% once fees go up April 1. Small- and medium-sized companies will see their fees more than double.
So how are businesses planning to respond to these fee increases? Will they file fewer petitions or offer fewer immigration benefits to employees as a direct result of the fee increase? Will it make it more difficult for them to compete globally?
We asked these questions and more in a survey of U.S. business leaders. The results are in and indicate that most businesses are taking these fees in stride.
57% of respondents reported that the fees will not impact their ability to compete globally.
Those who have concerns about their ability to compete globally, cited the higher cost to bring talent to the U.S. as the main reason.
“The deployment of foreign talent will be impacted to some extent as we plan to process limited H-1B applications due to an increase in visa fees. […] If we are not able to find suitable local talent in the U.S., it will put pressure on us to process more visas.”
“Simply, if we are spending more in immigration costs, we may need to look at other departments of where decreases may need to be made.”
60% of respondents reported they they will file the same number of petitions and offer the same benefits.
60% of respondents reported that they are or would like to explore alternatives.
Interestingly, the same percent of respondents say they will file the same number of petitions and offer the same benefits as say they are or would like to explore alternatives. This may indicate that businesses don’t anticipate the fee increases to change to how many foreign nationals they employ, but that if they can, they’ll find more cost-effective means to do so.
Further, 80% of respondents who recruit F-1 students reported that the fees won’t affect their recruiting of foreign students.
The businesses that are certain they’ll explore alternatives indicated they are considering earlier green card sponsorship, consular filings where possible and reducing spending on premium processing. Some may also explore strategies to transfer employees to other locations in order to provide them with experience that could put them in a more favorable green card category when they return to the U.S.
Though the fee increases are substantial, in some cases raising fees by more than 200%, it appears employers aren’t planning to make dramatic changes to their immigration programs. However, there’s still a decent amount of uncertainty in terms of how employers will respond. Many employers want to explore alternatives, but don’t know where to start.
BAL can help employers consider the strategic options available to them. If you’re interested in speaking with a BAL attorney about the alternative strategies available to you, contact us.
>>To calculate your business’ fees under the new rule, use our USCIS fee calculator.
The survey was open to the public February 28, 2024, through March 6, 2024. There was a total of 30 survey respondents from a broad set of industries. Respondent immigration program sizes range from fewer than 10 to more than 500 petitions filed per year.
For more information, visit our USCIS fee calculator and learn about impacts of the rule for immigration programs.
H-1B registration opens.
Canada imposes a visa requirement on some travelers from Mexico.
And a new study from the Cato Institute shows that just 3% of immigrant applicants for green cards will receive them in 2024.
In light of ongoing uncertainties in the Permanent Labor Certification (PERM) green card process, many companies are seeking to diversify green card strategies for their employees. One increasingly common option for many companies is the national interest wavier (NIW) green card process.
Historically, PERM has been the most common pathway for foreign national workers to secure employment-based permanent residency in the United States. It can be a particularly time-consuming process (1-2 years) due to labor market tests and prolonged Department of Labor wait times. Current economic conditions and an increase in failed labor market tests have made PERM particularly challenging.
Without a successful labor market test, PERM cases are unable to move forward. Often, PERM applications will come to a halt after months of work, which can significantly impact a foreign national employee’s ability to work and live in the United States lawfully and a company’s ability to retain and attract talent.
The national interest waiver, like PERM, is a path to a green card and offers individuals who qualify a second preference employment-based category (EB-2). The key difference, however, is that national interest waivers do not need to go through a labor market test if certain criteria can be met.
In order to be eligible, foreign national workers must either:
Additionally, NIWs also require that:
As NIWs do not require a labor market test, applications are not affected by economic trends and layoffs like PERM applications. In addition, processing times are shorter because NIWs do not require the Department of Labor’s involvement.
The Biden administration is fostering a favorable environment for NIW green card cases, as demonstrated by various updates and policies, especially for individuals working within critical and emerging technologies. These changes include U.S. Citizenship and Immigration Services updating its policy manual with favorable guidance, providing more deference for applicants with advanced STEM degrees and extending premium processing service to NIW petitions.
A recent Executive Order on Artificial Intelligence, for example, asks government agencies “to expand the ability of highly skilled immigrants and nonimmigrants with expertise in critical areas to study, stay, and work in the United States.” Whether the administration’s current openness to NIW petitions continues depends on several factors, including the 2024 presidential election. For this reason, many companies are being more aggressive in NIW filings so that current policy standards apply.
BAL has successfully guided numerous companies from a wide range of industries and sectors, regardless of size, in incorporating NIWs into their U.S. immigration strategies. This approach has provided valuable options and flexibility for their foreign national workers. Although not everyone is a strong candidate for an NIW, many who believe they don’t qualify might actually have a compelling case Therefore, we strongly recommend consulting with your BAL legal team to tailor the most effective strategy for your specific circumstances and to determine the most suitable path forward.
Nazish Ali and Storm Estep are both senior associates in BAL’s Dallas office. Nazish and Storm will discuss NIW best practices at a March 13 BAL Community Event and discussed NIWs on a recent episode of the BAL Immigration Report.
Featuring Emily M. Dickens, Chief of Staff and Head of Public Affairs, the Society for Human Resource Management (SHRM).
Certain Ukrainian citizens in the United States are now eligible to apply for re-parole.
H-1B denial rates rose slightly in 2023.
And the Society for Human Resource Management pushes for much-needed reforms to employment-based immigration.