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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.
In this week’s episode, BAL’s Jeff Joseph invites Natalie El-Diery, the Director of Immigration and Integration in the Utah Governor’s Office of Economic Opportunity, to discuss the department’s immigrant integration initiatives and the vital role she plays in helping Utah’s new Americans find gainful employment.
Plus, top immigration news including updates on registration for the Diversity Visa for Fiscal Year 2026.
This alert has been provided by the BAL U.S. Practice Group.
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In this week’s episode, BAL’s Kelli Duehning discusses fragile and quasi immigration statuses like DACA, the differences between them and what to anticipate regarding theses statuses with a change in administration. Plus, the latest immigration news.
In this week’s episode, BAL’s Edward Rios and Femi Adeyemi discuss compliance issues that often get overlooked with foreign national employees during mergers and acquisitions and company restructures. Plus, the latest immigration news.
Each year, on Sept. 17, Americans celebrate Constitution and Citizenship Day. While there are many paths to citizenship – born in the U.S. or a U.S. territory, born abroad to U.S. citizens or naturalized – we all enjoy the same advantages, and equally important responsibilities. As we reflect on these responsibilities of citizenship and what it means to be a U.S. citizen, we also explore the numerous benefits and incredible opportunities that U.S. citizenship has to offer.
Visa-free travel
There are so many advantages when it comes to travel and the ease of travel when you’re a U.S. citizen. For example, you don’t need to prove potentially every time that you intend to make the United States your home. Permanent residents are required to show roots and ties to the U.S., and that they want to be a permanent resident and make the United States their permanent home. In addition, for lawful permanent residents, additional travel documents may be needed if you have long trips outside the U.S. By being a U.S. citizen, those requirements are no longer necessary.
Traveling with a U.S. passport allows for assistance from the government when abroad, as well as possession of one of the most travel-friendly statuses available today. U.S. passport holders can travel to certain countries without a visa. Being a U.S. citizen and having a U.S. passport opens many doors and removes a lot of visa requirements and other challenges when traveling to other countries.
The right to vote
The Constitution and laws of the United States grant numerous rights exclusively to citizens, with one of the most fundamental being the right to participate in federal elections. This right is particularly significant when compared to many countries where citizens lack a voice in their government and cannot effectively communicate their values and what’s important to them by voting. In contrast, U.S. citizens have the power to influence the nation’s future by voting for representatives and leaders who align with their values and priorities.
Keep the family together
U.S. citizenship provides a strong safeguard against family separation with the privilege of helping immediate relatives, such as a spouse, parents and unmarried children, to obtain permanent residency.
Federal employment opportunities
Most jobs within government agencies require U.S. citizenship, so becoming eligible for federal job opportunities can be a significant public service professional opportunity, including running for office to become an elected official.
Access to federal benefits
U.S. citizens are eligible for certain federal scholarships and grants and access to federal public benefits for basic needs, including Social Security benefits, Medicare and Medicaid. Citizens are also eligible for government-sponsored legal aid, which provides free or low-cost legal assistance to ensure all citizens have access to justice regardless of their financial situation.
BAL’s pro bono and volunteer work is wide-ranging, and citizenship has become a primary focus in recent years. We coordinate with local organizations, such as Proyecto Inmigrante and Catholic Charities, in assisting with citizen workshops. BAL is committed to supporting underserved populations about the process to citizenship.
Throughout the year, BAL hosts two six-week citizenship courses for local community members to receive hands-on learning to prepare for citizenship. The six-week course covers civics and U.S. history and helps individuals with English reading, writing, comprehension and speaking skills. BAL attorneys volunteer their time for several hours every week to teach students, assist with preparation and submission of application forms and provide guidance for the interview process.
By becoming a U.S. citizen, individuals not only gain valuable rights and privileges, but also contribute to the rich tapestry of this nation. Citizens are given a voice and the opportunity to develop that greater sense of security, community and belonging.
On National Citizenship Day and every day, we at BAL celebrate all the different paths to citizenship that make the American dream accessible to so many individuals and their families. We are honored to play our role in guiding and supporting our clients as they navigate the complex legal processes and achieve significant milestones on their journey to becoming U.S. citizens.
In this week’s episode, BAL’s Eileen Lohmann and Steve Plastrik dive into the remaining immigration priorities for the Biden administration ranging from adjustment of status improvements to DACA updates to finalizing the H-1B modernization rule.
Plus, top immigration news including the most recent advancements posted in the October Visa Bulletin.
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.
Fast Company named BAL among the 2024 Top 100 Best Workplaces for Innovators in the world, marking its second consecutive year on the list. This recognition validates the firm’s consistent investment in fostering a creative, collaborative work environment focused on powering human achievement.
“Our mission at BAL is clear: to provide an experience that makes a positive difference in people’s lives,” said CEO Jeremy Fudge. “People-centered innovation helps us solve complex immigration challenges for clients and foreign nationals every day. And that focus helps our clients attract and retain skilled talent, empowering more than 2 million people to work and live in the U.S. and abroad.”
BAL keeps innovation at the forefront in our pursuit of the exceptional, from AI-powered technology upgrades that enhance the client and foreign national experience, to our service-oriented oneBAL culture of collaboration. BALers continue to stay ahead of the curve, anticipating and adapting to the ever-changing landscape of immigration policies worldwide while helping our clients navigate those complexities.
Fast Company is in its sixth year of recognizing companies and organizations from around the world that are committed to empowering employees and fostering creative problem-solving. You can view the complete list of honorees here.
In this week’s episode, BAL’s Gabriel Castro and Kristi Ngo discuss a recent end-of-summer event they attended with a group of global mobility professionals – and understanding what global mobility means. Plus, the latest immigration news.