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As we move into summer, many foreign national employees will be taking trips abroad for vacation, to visit family and possibly to renew their visas while outside of the country.
While we continue to experience a general increase in visa appointments, an exciting improvement after the delays and lack of availability over the last couple of years, there are still many spots where backlogs exist. The backlogs could be due to a shortage of consular staff managing the post, specific types of visas that are being prioritized or the inability of a location to support the number of visa applications they’re receiving.
One of the great services BAL provides is U.S. consular support. Via this service, we offer real time visibility into appointment calendars around the world. There are a lot of variables in how we can help our clients be successful depending on the type of visa and the current backlog in the location where they need to file.
Here are three tips to manage the variables as best as possible and ensure foreign nationals have the best chance of success for their summer travel plans.
The first tip, and the most important for me, is encouraging applicants to check:
It is difficult to catch up on an applicant’s status if they are in between time frames. Many people forget that the visa has one expiration date, but their underlying status also has an expiration date, and it’s important that both of those are valid. I’ve had many clients who planned summer travel but were only able to get a very limited amount of time because their underlying status hadn’t been extended.
To get the most out of their immigration status, foreign nationals should make sure they have the right documentation ready to extend it. Think about it not just as getting a visa, but how it extends their overall immigration status in the United States.
I always recommend applicants secure their appointment first, then get the travel plans on the calendar. It’s disappointing to an applicant when they have travel plans booked and I can’t get a date for them in that limited window of time, especially when consulates and embassies are seeing hundreds or even thousands of people every single day.
However, if we initiate the process in a timely manner, we will be able to discuss potential travel dates before they’re solidified, our team can identify where a consulate could accommodate the desired travel dates. Or if they are flexible and can move the trip a week or two, they can get an appointment with their preferred consulates due to greater availability.
It is also important to note that it may take longer in the summertime for the overall processing to happen, especially for those traveling to Europe – particularly Paris – with the Olympic and Paralympic games. Services are going to be very limited this summer in Paris, and in-person appointments might not even be available at all except for life and death emergencies. We are also finding that availability for third country national filings throughout Europe continue to be limited for foreign nationals who are not residents in that location.
Considering all the potential obstacles, I can’t emphasize it enough: let’s get the appointment on the calendar, then plan your travel.
I won’t have a lot of fans on this one, but my third tip is to not just assume that an interview waiver is going to be the faster option. The State Department highlights the interview waiver process as an advantage, and I think it is an advantage for many people, but it won’t necessarily result in a faster turnaround time for approval.
We normally see the consulate turn the visa around within five to seven business days after an interview, whereas interview waivers can take up to ten to fifteen business days. A lot of it has to do with the immediacy of an interview: the consulate has the foreign national’s passport in hand and will complete the process in the moment. On the other hand, while it’s convenient to mail in the application for the interview waiver, there’s also no telling when the consulate will actually pick it up, adjudicate it and turn it around.
It really comes down to the individual circumstances. If the foreign national plans to be in the country for multiple weeks and qualifies for an interview waiver, it’s a great option. Otherwise, I would recommend moving forward with the interview.
A question I’ve heard many times is, “what if I can’t get a visa interview?” In that case, there is the option of utilizing what’s commonly referred to as an expedite request. The way you approach these requests is completely unique to each consulate, but it generally involves the applicant asking the U.S. consulate to prioritize them over other visa applicants due to extenuating circumstances.
These extenuating circumstances – the ‘why’ behind the request – are crucial. You need to be able to explain why your case is so important that it needs to be taken care of now. When I’m able to approach the consulate with a solid answer to that question, it gives us a chance to have the request accepted.
I recommend that anyone who finds themselves in this urgent situation first review the appointment calendar and take the first available option, then submit the request. From there we can finalize the ‘why’ and work with the consulate to identify a gap in their schedule.
Happy traveling to everybody.
BAL ranked in the highest tier of Chambers USA Guide for 12th consecutive year
BAL has been recognized as a Band 1 immigration law firm in the newly released Chambers USA Guide 2024, marking the 12th consecutive year of this achievement.
Described by Chambers as a “powerful force in corporate immigration with the capacity to handle a range of highly complex matters,” BAL achieved a top Band 1 ranking in the Chambers USA Guide as well as its Global Guide for immigration business in the USA.
The firm also celebrates 11 BAL attorneys ranked by the publication, including CEO Jeremy Fudge and Managing Partner Frieda Garcia, who were both honored as Eminent Practitioners.
“We are proud to be recognized as a top-ranked immigration law firm for 12 years running,” said Fudge. “Receiving this honor year-after-year, and seeing our attorneys recognized as well, reaffirms our oneBAL approach: relentlessly and collaboratively delivering the exceptional for clients. That’s all that matters in the end, and we’re thrilled that our clients continue to see that.”
Rankings are determined through Chambers’ in-depth methodology involving client feedback. BAL clients shared the following assessments of the firm in their interviews with Chambers:
BAL’s California, Massachusetts, Texas and Virginia offices also achieved Band 1 rankings this year. In addition to Fudge and Garcia, Chambers’ 2024 lawyer rankings also include BAL’s Ruth Clark, Josiah Curtis, Maria DeLapp, Tiffany Derentz, Michelle Funk, Jeff Joseph, Lynden Melmed and Edward Rios. We extend our congratulations to five partners joining BAL from Seyfarth Shaw’s immigration practice who also earned Chambers rankings this year: Sharon Cook, Michelle Gergerian, James King, Gabriel Mozes and Russell Swapp.
This month, Kelli Duehning, a BAL partner and head of the San Francisco office, joined WERC President and CEO Anupam Singhal for a frank discussion about corporate immigration issues in this unique election year, what the implications are for employers of foreign nationals and what they can do to prepare for any election outcome.
Watch this special segment of WERC’s The One Take here.
Read the transcript below.
Anupam Singhal: All right, welcome to The One Take, Kelli. It’s great to have you here today with the election season, might I say, in full swing and changes in global mobility resulting from that on the horizon. I think we’re in for a really fascinating conversation, so let’s get right into it.
Kelli Duehning: Great, thank you. Well, it’s a pleasure to be here, and I do look forward to diving into these certainly important topics.
Singhal: Awesome. Well, Kelli, you know this is obviously a unique election year with both presidential candidates having previously served one term. What implications do you think we can expect to have, depending on the election results, on U.S. immigration policy?
Duehning: This election is definitely very unique, and it’s going to be a unique experience in that we’re going to be able to make some predictions based upon previous actions and also plan ahead where possible. So, like most cases, if an incumbent wins the reelection — in this case, President Biden — we can expect more of the same of what he’s been doing, with maybe a higher intensity since this would be his final term.
But this time, if the challenger takes the election — in this case, President Trump — we can also anticipate what we expect: probably a more amplified version of what he did during his first term. Those of us who have been involved in immigration programs through both administrations have already seen how the opposing policies have impacted their programs and can be more proactive in how to respond as an organization.
Singhal: Just picking on that for a second, I think you’re sort of suggesting it but not quite saying it, so I’ll say it: Immigration is obviously a very significant concern. It seems like, in fact, it’s a top concern for voters in the U.S. And the two candidates seem to have polar opposite approaches, at least the rhetoric as such. Given that and what you were just saying at the end of your comments there, how are you advising clients and businesses to prepare their immigration programs for whatever the outcome ends up being?
Duehning: Right. So, you know the first term of the Biden administration has pushed forward an ambitious regulatory agenda. For example, he’s been piloting the foreign nationals, allowing them to renew their visas in the U.S., which hasn’t been available since 9/11. He’s been expanding pathways for foreign workers to qualify, let’s say, for national interest waivers and adding to the STEM lists. They’ve been putting the fast track on green card processes, and he’s also looking to overhaul the H-1B lottery system to reduce fraud. So for example, if President Biden wins a second term, we can expect more of that same stuff — an environment where the administration is very receptive to feedback and ideas from the private sector and quite frequently actively seeking, actively looking for ways to modernize immigration pathways to ensure the immigration system is functioning.
I also note, though, that while we can rely on President Biden’s administration to continue to move forward in that realm, it is important that you know the outcome of the congressional elections could certainly affect the oversight or either promote or hinder that that agenda as well.
Singhal: Right. It’s interesting, I was at a forum five weeks ago, and there were some immigration updates or just regulatory updates being provided by someone on the Hill. And the bottom line was that there’s regulatory logjam, basically because of just where Congress is and how divided things are in D.C. And you’re right that depending on how the election goes, it may not just come down to the presidential election itself and who ends up in that office but what the rest of Congress looks like. Interesting.
So what can businesses expect to be facing if President Trump ends up coming into office and you know, I’m trying to remember, what the hallmarks of his immigration policy were four years ago. Based on current rhetoric and outlined platform, etc., what are you all seeing and what are you advising clients to keep in mind?
Duehning: I think that’s great, and I think you really led it off earlier by saying certainly opposing views in how they want to address immigration. So in Trump’s first term, we saw a lot of restrictions and barriers put in place to really limit both illegal and legal immigration. The focus was more on promoting that local workforce, making sure businesses are hiring with U.S. workers versus foreign nationals. So for example, we saw a lot of the broad travel bans. We saw that the Trump administration tried to narrow those eligibility requirements for H-1B applicants, driving up costs for recruiting and retaining foreign talent, limiting international students’ abilities not only to stay but also to work after they’ve received their U.S. degrees. So if Trump wins a second term, we really do anticipate even more restrictions and policies to reduce immigration, mostly probably driven by executive orders — again, depending upon how the congressional elections go — but probably driven by those executive orders, certainly starting with reversing a lot of the Biden policies that were passed by executive order.
We can anticipate that the Trump administration will certainly implement the majority of recommendations by the Heritage Foundation. If you’ve not read that report, I really encourage you all to read the Heritage Foundation’s immigration report. What it does is it’s requesting a lot of different things, but certainly dramatically raising filing fees and ending a lot of the quasi status-type programs like DACA and all the parole programs that the Biden administration had started. And the reason why we say that you should be looking at that Heritage Foundation road map and then plan based upon that road map is that during his first term, he took the Heritage Foundation recommendations and implemented over 60% of them. So it’s a really good way, I think, to kind of anticipate where he’s going to be going.
Singhal: You said the Heritage Foundation?
Duehning: Yeah, the Heritage Foundation. We can certainly share that with folks. I know in ERC and the Global Immigration Forum, we’re certainly looking at that and are happy to be sharing out a lot of that information with folks in the various Mobility Minutes and other areas where we can share that information.
Singhal: I absolutely appreciate it. I think that would be very valuable, and so I encourage folks to try and get ahold of the Heritage Foundation — what do you call it? The Heritage Foundation —?
Duehning: Their immigration road map and their suggestions to the Trump administration.
Singhal: Correct — okay, got it. I need to get ahold of that for myself and read that front to back — that’ll be bedtime reading for me today. Hopefully it’ll put me to sleep and not wild me out. We’ll see.
Duehning: It’s interesting because this isn’t just an election year in the U.S., right? Right now we have over, I think it’s like over 60 elections worldwide. So how do you think those might also impact the global mobility, the rest of the world’s immigration or global mobility programs?
Singhal: I think it’s closer to like two-thirds of the world’s population is going through an election this year, which is nuts. So it’s obviously the U.S. The U.K., which folks might have seen in the news, the prime minister, he’s asked for an early — effectively a referendum on his administration set for July 4 elections there. India just went through and is still in the process of wrapping up its elections. The European Union, I think Mexico, South Africa and I think a number of other countries as well.
I think what it seems, what’s sort of undeniable is we seem to be in this phase where populism is quite pronounced, even in very unexpected places. Nationalism and populism is quite strong, and so I think the expectation generally is that will continue — there’s no signs of that changing anytime soon, at least in the major economies. As a result, I think what I’ve heard and seen based on that, it just feels like things are going to be more complicated for global mobility, cross-border mobility, to happen compared to the way it was before.
So just more complexity, more cost, more friction and essentially, in some ways, in some strange ways, it actually makes the need for this industry that much more pronounced and everyone in this industry that much more necessary. Because the expertise of folks like yourselves and others in different areas, whatever those areas might be — you know, the expertise and your efficiency in being able to assist folks being able to cross those borders in whatever context it might be — tax, immigration or even just moving and housing and so on — is going to be super important to making sure that people get productive. They can get to where they need to get to, and businesses can get them there in a timely fashion and then actually make them productive. Great callout — it’s definitely very interesting times, not dull by any means, let’s put it that way.
So let me ask about businesses: You threw out a number of things that made sense. DACA doesn’t quite relate exactly to businesses — I mean, it’s something that a lot of people obviously care about for one reason or another, whatever side of the fence you might be on. But things, like what you were talking about green cards, perhaps to some extent H-1Bs and so on — maybe if you can spend a couple of minutes expanding on what are some of the things that might be contrasting on two sides around some of the key policy areas that will impact businesses and their ability to attract or acquire talent from wherever they might want to.
Duehning: Yeah, I think that’s really the important issue: What can businesses do now? How can they protect their foreign national population, retain that talent? We’re certainly recommending that businesses start preparing their foreign national employees and leadership teams immediately. I think that’s why it’s so important that we’re having this conversation — it’s really going to be important for them to start, as you were saying, as borders may be more difficult to move to and from — it’s really starting to identify those work groups that are going to need to be ready to be prepared for these changes. So identifying people within your organization who can be on the know and on the go with these changes so that they can relay these real-time updates to their impacted employees and be able to establish that plan of action.
And that’s really right now — I mean, you know, a lot of us should be in that planning phase at this point, and knowing who you should be prioritizing, who needs that protection within your employee population. So like we’ve been telling folks, what are your at-risk categories? To your point: If it’s going to be difficult to move to this country or come to the United States, but they’re critical to be here, what is it that you need to do now to make sure that they’ve got that long-term protection? Are there certain nationalities that need additional protection? For example, here in the United States we know that there’s going to be certain travel bans from certain countries most likely if there is a Trump administration — so how are you going to protect those folks? What do you need to do to make sure that they have that long-term protection so that you can retain them here or get them to the country that they need to go to so that they can then also have that long-term protection?
Are there certain business interests that your that your company has? What if you’re starting a new project or you’re going to be launching a new project and there’s certain employees that are critical to that launch or critical to that development or ongoing development of that new product? So are those folks then looking at that and making sure that they need to be where they need to be?
So, by the end of the summer, if you’re not in that planning phase, you should be in that planning phase. So that by the end of the summer, your foreign national employees should be in a secure, durable status, whether that’s in the United States or whether it’s in the country that you need to get them to be in so that they can remain there long-term. So before the election, thinking about do they need to have their visas extended? If you haven’t already filed for green cards, you need to start doing that now because we know how long that process can take, especially here in the United States. By January we’re going to be in a reactionary environment, especially here in the United States. I would imagine in some of the other countries as well — as you mentioned, U.K., India, Mexico. If you’re waiting until after the election, it’s going to be most likely too late in order to get those folks to that area, or the wait times are going to be so long because now all of us are going to be jumping to make sure we’re getting those employees protected.
So really start sitting down, thinking about what that looks like now. Urge your employees to frontload any family travel, extensions, visa renewals this year so that you can kind of sit back and relax a little bit and only deal with the crises that you need to, depending upon how the elections turn out.
Singhal: Wow, that was a lot. Actually, what you made me do the math on and realize as you were talking was we’re less than six months away from the elections. Wow, oh my god.
Okay, so the key thing there that you said was for folks, our audience, if you aren’t already in the planning phase, get on it now. You don’t have time to lose — there’s absolutely no good that’s going to come from waiting to see what comes of it. Start planning now and start thinking through what might be some of the actions you need to take to be ready for whatever the outcome might be.
You and I didn’t discuss this previously ahead of this conversation, but I wonder if you might be able to provide any update and/or perspective on this — and totally fine if not — but the State Department launched the H-1B visa renewal pilot program after many years of everyone asking for it. I know WERC was very active in advocating for it, and you as part of the Immigration Policy Forum did a lot of work in that regard as well. I was recently, I think it was at the BAM meeting, was sharing the stage with a visa analyst from the State Department, and she was talking about that they’ve gotten feedback, they’ve gone through the feedback cycle, they’re evaluating the feedback. Is there any update on when they’re going to expand that program? Because as I understood it, they started with four countries and that’s where it’s been at so far.
Duehning: That’s a really great question. So yes. First off, all of the responses back they’ve said have been super helpful — they it was by all accounts very successful. They plan to keep it and they do want to expand it.
Obviously, they’re still building up their team. So I think it’s kind of a twofold, where they are building up their team so that they can sort of open it up to all categories — they don’t want to continue to limit it, they do want to be able to open up to several categories — and basically anybody who’s eligible to meet that renewal process. But in the same terms, they need to build up their team. So I think from what I was told is they’re in that process of building up that team, and then based upon that capacity, they’re looking at how they can continue to build out.
What they really do is they are really just running — it’s a data numbers game, right? They don’t want it to be so flooded that it becomes a bad experience for everybody, so they’re really looking at it from that strategic angle of how can they increase based upon the staffing levels that they’re at so that it continues to be a quick, efficient way for people to get that visa renewal, but it doesn’t flood them so much that then it becomes a bad experience. So I think that’s what we’re looking for.
They’ve not been very specific in the discussions that I’ve had with them about exactly when they plan, but they do plan to be looking — from my understanding — they were looking at this summer or early fall in terms of continuing to expand and looking at what does that look like and what capacity do they have. Again, understanding all of this could go away under a Trump administration, so I think they really want to be able to build the program so that it’s more difficult to take away than to end it.
Singhal: That was going to be my follow-up question on that. So for anyone that’s not familiar with this, what Kelli and I were just talking about and what Kelli was providing an update on was essentially this pilot program launched by the State Department that allows for — well, before the launch of the pilot program, essentially if you have an H-1B that was expiring and you needed to get it renewed, you would actually have to leave the country and wait outside until it was renewed to come back in, which is obviously very disruptive for businesses that employ folks on H-1B visas. And so this pilot program for a select group of countries — or nationals from a select group of countries that meet certain criteria — allows them to file for renewal without having to leave the country and go through that disruptive process. So that that was what we were just talking about. Thank you, Kelli, for weighing in on that.
So, just to be sure, you said under a Trump administration that could actually disappear potentially?
Duehning: It could, yep, exactly — because that would definitely be something that, again, even though it’s legal immigration and even though it’s people that are already here, that administration as we saw in his first term would certainly be looking at ways to slow that process down or shut the process down altogether.
So that’s really what they’re looking at is, they know they can’t obviously completely shut down the U.S. immigration program, but they are looking for ways that it just takes it a lot longer for people to actually either get the visa, renew their visas, be able to continue to work in the United States. And so we would certainly expect something like this to either put be put on hold or just go away all together.
Singhal: All right, well, not a not a fun thought for anyone who has employees and folks that are on H-1Bs that are coming up for renewal. Maybe try and accelerate getting them into the renewal process or do what you need to based on the earlier suggestion from Kelli of don’t wait, get planning now and acting as soon as you can, given the uncertainty.
Kelli, I wanted to thank you very much for your time — these were great updates. Thank you for sharing these. I obviously always love talking to you — your wealth of knowledge and your background is fantastic and so it’s always fun, and I’m sure I’ll talk to you another time soon.
This is obviously important for me — the key takeaway is essentially: Folks should really stay informed on the differences in immigration policy and what impact that might have on what comes into effect, depending on the result of the U.S. elections later this year, the presidential elections. And then start planning and start acting on things that make sense and would be important for your business rather than wait and be in a reactive mode afterwards.
So thank you again, Kelli. I appreciate you taking the time and look forward to seeing you very soon.
Duehning: Great, thank you so much! It was wonderful discussing these, and as you said, I know we’ll continue the conversation, and I’m happy to be a part of it in making sure everybody feels prepared and ready. We all have to work together as a team on this, so looking forward to that.
Singhal: I very much appreciate, on behalf of WERC and the industry, appreciate your personal efforts as part of the Immigration Policy Forum and BAL’s support of WERC. So thank you for that! Have a good one. Bye!
DALLAS, April 29, 2024 — BAL, the world’s most innovative corporate immigration law firm, is thrilled to announce that six nationally recognized partners of Seyfarth Shaw’s immigration practice will join BAL this summer. Acclaimed partners Russell Swapp, James King, Gabriel Mozes, Sharon Cook, Michelle Gergerian and Jason Burritt along with many of their legal and operations team members will join BAL this summer in the largest realignment in the immigration industry in years.
“We are excited to have Russ, Jim, Gabe and their talented teams join BAL,” said Jeremy Fudge, CEO at BAL. “This move further demonstrates that our oneBAL model, which prioritizes collaboration over internal competition to ensure clients always receive superior resources and insights, is a magnet for talent in the industry. BAL’s unique operational structure and commitment to continually invest in our technology, people and client relationships is transforming how corporate immigration services are delivered.”
Seyfarth’s immigration practice, ranked Band 1 in the Legal 500, is the top-rated group in the large multi-practice law firm model. In bringing on these Seyfarth partners, BAL further elevates itself as the industry’s unrivaled powerhouse of legal knowledge, innovation and customer service. To accommodate this expansion, BAL will open a new office in Atlanta, marking the firm’s 13th office across the United States.
“I’m truly grateful to Seyfarth for the past two decades; it has been an incredible journey to build the most outstanding immigration practice inside an Am Law firm,” said Russell Swapp, founding partner and co-chair of Seyfarth’s Global Mobility practice. “We had many options, but BAL stood apart as the most skilled, creative and passionate legal minds ready to better our clients’ experience and advance our industry.”
“We have a remarkable cultural and organizational fit and a shared commitment to investing in our employees and using technology to enhance our incredible legal experts,” said Frieda Garcia, Managing Partner at BAL. “At BAL, we are revolutionizing how our clients secure the talent they need to change the world.”
Both firms have a shared commitment to making the transition of personnel and clients to BAL as seamless as possible, with minimal disruption to ongoing client matters. “This move aligns with the strategic vision of both Seyfarth and the immigration group. We all agreed that their practice would be best positioned at a boutique immigration-only firm with a different model and platform than ours,” said Lorie Almon, Seyfarth Chair and Managing Partner. “We extend our gratitude to our colleagues who are leaving for their service to Seyfarth and for their contributions over the years, and we wish them continued success in their new endeavor.”
BAL has operated for more than 43 years and is driven by its mission to provide an experience that makes a positive difference in people’s lives. The firm is led by Jeremy Fudge, CEO, and Frieda Garcia, Managing Partner. BAL’s diverse client base includes corporate immigration programs of all sizes from the most innovative companies in life sciences, aerospace, technology, manufacturing, medical research, energy, professional sports and more.
About BAL
Established in 1980, BAL powers human achievement through immigration expertise, people-centered client services and innovative technology. BAL, with 13 offices across the United States and global coverage in more than 185 countries around the world, operates as a single entity through its oneBAL culture — a uniquely holistic approach, intentionally structured as one team, one brand, one P&L, one standard of excellence and one unifying technology. This united approach enables the firm to deliver the highest level of knowledge, insights and resources from across the entire organization. At BAL, we pursue the exceptional. To learn more, visit 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.
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.
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.
Earlier this month, the Department of Homeland Security published a regulation to overhaul the H-1B lottery and move to a one-beneficiary, one-selection system rather than the current employer-focused process. This change has the backing of the business community and is designed to reduce incentives for bad actors to submit multiple registrations for the same individual.
It also has the potential to reduce the overall number of H-1B registrations and improve H-1B selection rates.
Still, we expect H-1B demand to outpace supply once again this year. 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, we’ve seen demand for H-1Bs skyrocket — even through a global pandemic and an uncertain economy.
As we discussed in a recent webinar, H-1B contingency planning is as important as ever. It is particularly important to have a backup plan for employees whose current work authorization will expire this year or next year, though it doesn’t hurt to begin planning even earlier.
Some of the more common H-1B alternatives include:
Every cap season has its own flavor, and we don’t always know how economic trends and regulatory changes will impact H-1B demand.
We do know the H-1B program continues to be oversubscribed. Given the low selection rate in recent years, we know many employees will be back in the lottery this year. On top of that, the H-1B registration fee is set to jump from $10 to $215 next year, providing another incentive for employers to submit registrations now.
As we said in our webinar: Plan early and often. A good H-1B contingency plan for valued employees can set you up for success this year and well into the future.
Michelle Funk is a partner and the head of BAL’s office in Tysons, Virginia. Gabriel Castro is a senior associate and head of BAL’s office in Los Angeles. Michelle and Gabriel’s recent webinar “Plan early and often: H-1B alternatives in a tight labor market,” is available on-demand here.
Many people hoped that the pace of layoffs in the United States would ease in 2024, but the results thus far have not been promising. While most attention has focused on the tech industry, troubling signs now indicate that other industries may follow. Already, several major retailers have announced significant layoffs, and a recent survey of 906 business leaders in various industries found that nearly four in 10 expect to lay off workers in 2024.
Obviously, the experience of losing a job is challenging for anyone. But for foreign nationals in the U.S. on nonimmigrant work visas, such as the H-1B, it is particularly difficult. These visas are usually sponsored by the employer who hires the employee, meaning that if the job is lost, so is the sponsorship.
While American citizens who are laid off may embark on a job search that could stretch for many months as they collect unemployment benefits, foreign nationals on work visas have it tougher. They may stay in the U.S., but to do so, U.S. Citizenship and Immigration Services requires that they generally must find a new job within 60 days to retain their nonimmigrant status. That might sound like adequate time, but for many job seekers it is actually quite short.
Generally, if these workers have not secured a new job within 60 days, they lose their nonimmigrant status and must leave the country. But there are options that could allow them to stay, even if they can’t find a new job.
These options include
It is important to point out that when foreign nationals do leave the country, that doesn’t necessarily mean their days of working in the U.S. are over. Nothing prevents them from continuing their search for an American job and a new work visa from abroad.
For foreign nationals who are laid off in the U.S. and want to stay, the “alphabet soup” of visa options might appear daunting. But solutions, whether temporary or permanent, may be possible. It is important for them to seek counsel and learn about eligibility requirements to help tailor their search.
For employers, meanwhile, it is advisable to start thinking now about the prospect of handling possible layoffs down the road and being aware that their foreign workers are likely to experience a greater negative impact when they are let go. Employers might consider assisting their laid-off foreign national employees with guidance, and perhaps access to outside counsel, if their jobs come to an end. This approach may burnish an employer’s reputation as a place that is sensitive to employees’ needs and produce long-term benefits.
For both employers and employees, planning for the future is critical. While the economy is showing positive signs, the market remains volatile.
When the stakes are so high, having a plan in place that can be implemented immediately is crucial.
Steven is a senior associate in BAL’s Dallas office. To get in touch with Steven or another BAL attorney to discuss options before, during or after layoffs, contact us here.