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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.
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BAL Senior Associate Cecilia Lai will speak on a panel about EB-1A/Bs, NIWs and O visas on Friday, March 31, at the Spring Conference of the Texas Chapter of the American Immigration Lawyers Association (AILA). We recently sat down with Cecilia to discuss these topics.
Both EB-1A and EB-1B petitions have always faced high scrutiny and must establish that the individual is internationally recognized as extraordinary or outstanding, resulting in a subject evaluation by USCIS adjudicators.
It can be difficult to manage expectations for both the beneficiary and employers due to inconsistent adjudications or a lengthy Request for Evidence (RFE) or Notice of Intent to Deny (NOID) from USCIS. The premium processing cases have a higher likelihood of receiving NOIDS that can be difficult to overcome, especially because you are only provided 30 days to respond. We have seen more successful outcomes when USCIS provided extensions for responses to NOIDs as part of COVID-related flexibilities when individuals were able to take advantage of the additional time. However, the flexibilities recently expired and will not apply for RFEs or NOIDs issued on March 23, 2023, and later.
Employers can use O-1s as a last resort to prevent the loss of work authorization for employees such as F-1 students who had no luck with the H-1B lottery or individuals in H or L who are maxing out on their time. When employers are faced with seeing individuals need to relocate from or leave the U.S., they should consider an O-1 visa, so they don’t have to transfer the individual outside the U.S., which can be costly, or worse, completely lose the talent.
The employer needs to have an appetite for risk and patience for the hiring process. O-1s are evidence heavy and highly subjective, so that can mean delays in hiring, especially if USCIS issues a Request for Evidence. We typically walk BAL clients through the evaluation for the O-1 to manage expectations for any risks of delays or denials, especially for highly sought candidates. Also, the approval rate for O-1 visas is quite high, generally between 80% and 95%.
Outside of the traditional occupations for O-1s, such as researchers, scientists, and artists and entertainers, most people don’t think about O-1s for business or other roles. While it’s true there are three criteria to meet — temporary nature of the role, demonstrated extraordinary ability by sustained national or international acclaim, or a record of extraordinary achievement in the motion picture industry — there is one that is a “catchall,” and that is “any other comparable evidence that shows someone has extraordinary ability.” This is an area that you can let the creative juices flow.
I first started in entertainment law while still studying for the bar when our family friend, who manages a native Dallas rapper, introduced me to an entertainment lawyer who needed assistance. But immigration law was probably my destiny. My maternal grandparents first came to the U.S. from China. My mother met my father when he was a foreign exchange student from Hong Kong studying in the U.S. When I finished law school, my family and friends were always turning to me for immigration advice. They wanted someone they could trust even though I didn’t yet have immigration law experience. So I made the switch from entertainment law to immigration law.
What’s really rewarding about immigration versus entertainment is you see things through to a resolution. You work with individuals who have a dream and dreams for their families, and you experience the positive impacts firsthand. With entertainment law in Dallas, there is seldom a “resolution.” We set up the client’s company and contracts, and things just don’t move forward or the client moves to L.A. for more opportunities. However, I am still involved in the industry as a legal advisor to the Asian Film Festival of Dallas and served as its executive director recently.
Cecilia Lai is a Senior Associate in BAL’s Dallas office. Cecilia previously handled immigration for one of the largest tech companies in the world. Currently, Cecilia works with multiple clients in the advertising and biotech industries. She finds innovative ways to effectively manage the companies’ immigration needs for foreign national employees in the United States. Cecilia has worked with the clients’ lead stakeholders to create a competitive immigration program in multiple industries and find solutions to talent acquisition and retention that align with their business goals. She finds innovative solutions during a time of fierce competition for STEM talent and a highly fluid immigration policy environment.
BAL Senior Associate Matt Dillinger spoke about H-1B visas on Friday, March 31, at the Spring Conference of the Texas Chapter of the American Immigration Lawyers Association (AILA). We sat down with Matt to discuss his work on H-1Bs and more.
We will discuss best practices for prepping for the 2024 cap season, new occupational codes used for H-1Bs, and how to handle employees in licensed professions. We will also discuss scenarios that require special considerations and creative legal arguments to successfully gain work authorization approvals.
There is a provision that allows people to extend their H-1B beyond the six-year maximum period if they have an approved immigrant petition but no green card is available. This is especially common for Indian and Chinese nationals for whom priority dates are significantly backlogged. But after the significant advancement of priority dates in 2020, many H-1B employees were no longer clearly eligible for these extensions, as they may have moved employers and thus not been able to file a green card application despite having been current for more than one year. Employees in this situation require a unique approach in order to continue to extend their status.
Many employers believe that when they file a change of employer petition for an employee, they must wait for approval by USCIS. But technically that employee can start working for a new employer as soon as the petition is received by USCIS. In the past, both employers and employees have shied away from doing that because Request for Evidence and denial rates were much higher. However, we are now seeing fewer RFEs and denials, so employers are becoming more comfortable allowing employees to start work before receiving final approvals. The same goes for employees.
Even experienced I-9 people might not know that there are special rules that make it possible to hire on receipt. Also, technically, employers don’t even need the formal USCIS receipt notice. You can submit I-9 paperwork based on the change of employer petition filing, proof of payment and proof of delivery.
I like things to be as clear and concise as possible. My approach is to provide a clear assessment of any risk I see, while also providing practical solutions or strategies, and minimizing the complexity of the situation, so the client feels confident moving forward.
I have always enjoyed learning languages and studying other cultures, so the international aspect of immigration law appealed to me. I find immigration law to be extremely rewarding. I feel good at the end of each day because I get to help my clients, help their employees and employees’ families and, in doing so, I believe I am making the United States a better place.
Matthew Dillinger is a Senior Associate in the Austin office of BAL. His practice focuses on developing and implementing creative strategies to meet the needs of his clients. He has worked with clients from a wide range of industries, including telecommunications, information technology, fintech consulting, higher education and healthcare, Matt believes strongly in pro bono work and has represented pro bono clients in DACA, U visa and asylum cases. In addition, he has served on the Leadership Board of the National Immigrant Justice Center.
BAL Senior Associate Stephen Parker is speaking this week at the American Immigration Lawyers Association (AILA) Texas Chapter Spring Conference on the topics of PERM prevailing wage and pay transparency. We recently sat down with Stephen, who practices at the firm’s Dallas headquarters, for a conversation about trending issues in immigration and his approach to the profession.
I’m now seeing PWDs back that were requested in September 2022 — so that’s about 6-7 months! It’s actually improved a bit recently, but when PWDs get to be more than just six months, the overall process becomes difficult to manage.
It’s due in part to the increased demand for PWDs and volume of requests. One possible reason for significant delays last year is that the DOL Standard Occupational Classification (SOC) codes were put into use in July 2022, an update that was previously delayed due to COVID-19. It might have been taking DOL analysts more time to process PWDs using the new coding system.
There is no way to speed up a PWD. The DOL accepts PWDs and issues them in the order received — first in, first out, without a possibility for expedited requests.
There’s not really a good way to predict upcoming processing times. DOL suffers from a lack of staff and budget issues. They’re at the mercy of bureaucratic funding, so if there’s a government shutdown due to a budget fight, things are going to get much worse.
There are real issues with significantly delayed processing times, like clients’ employees having to leave the U.S. because their green card case is not far enough along or their children aging out of the process.
I’m passionate about getting clients through a very complicated process. That’s what drives me. I’m especially inspired by the stories of the employees of our clients — where they’re from, and their boldness, tenacity, courage and willingness to go through this process because they really want to live in America.
Before coming to BAL I was stressed, dealing with less robust off-the-shelf software solutions that didn’t manage cases. Here at BAL, because of our Cobalt® technology, we’re able to manage a high volume of cases effectively through detailed case management and reporting technology.
I attended a small liberal arts college in Los Angeles, and I got to be friends with a lot of foreign students from all over the world. I loved their stories and getting to know them. After serving in AmeriCorps, I developed an interest in community and law and policy. I decided to become a paralegal first, and it was just by coincidence that the first job I applied to was an immigration firm.
I enjoy the win-win of helping somebody come to the U.S., helping an employer fill a job vacancy — and helping America to grow and become more diverse, interesting and talented.
Stephen Parker is a Senior Associate in the Dallas office of BAL, where he represents multinational corporations in immigration matters, including PERM labor certification, EB immigrant petitions and Adjustment of Status (AOS). He has a background in corporate immigration for the software industry and is an in-demand speaker at AILA conferences, CLEs and university events. Dedicated to pursuing the exceptional in immigration, Stephen assists his clients with retaining top global talent and also provides free legal assistance at citizenship workshops and through BAL’s pro bono committee.
With Oscar Night approaching this Sunday, viewers will be looking at a diverse pool of nominees, including Michelle Yeoh, a celebrated Malaysian-born actress who, if she wins, will be the first Asian woman to receive a lead actress Oscar. In fact, 12 of the 20 acting nominees this year are, like Yeoh, foreign-born. Add to that an uptick in U.S. movies shot overseas and actors traveling abroad to star in international productions, and the math is clear: from Hollywood movie studios to independent filmmakers, immigration law is pivotal to the contemporary filmmaking process. In era of backlogged visa issuance, lengthy visa wait times due to less and understaffed consulates, and complex immigration laws, the U.S. entertainment industry faces costly obstacles while navigating this tricky, post-pandemic regulatory climate.
The most typical road to Hollywood for international entertainers is the O-1 visa which requires proving they have “extraordinary ability” through a record of distinguished achievement. Actors and creatives eligible for applying for U.S. permanent residence must either remain in the U.S. throughout the adjudication process, or apply for permanent resident status via an AOS (Adjustment of Status or Green Card), that negates having to return to their home country during processing. In the interim, entertainers must obtain an Advanced Parole travel document that permits them to return from travel outside of the U.S.
However, visa approval numbers, affected by processing restrictions during the pandemic and an immigrant visa ban during the Trump administration, haven’t rebounded substantially from their early FY 2020 nadir of just over 240,500 cases. In fact, post-pandemic visa issuance is still sluggish, backlogged by hundreds of thousands at the U.S. State Department.
In tandem, visa appointment wait times, another casualty of the recent pandemic due to its temporary shuttering of some U.S. consulates and embassies, continue to be lengthy. Prior to pandemic, actors and other entertainers could strategically opt to return to their home country and apply for expedited processing of an immigrant visa at a U.S. consulate, but protracted consular wait times have all but eliminated that strategy. Consular wait times, in fact, are one of the biggest challenges for movie studios and other corporations seeking international talent today. We polled several of our own immigration stakeholders, of all sizes, and 9 out of 10 equally reported consular processing times as their number one hurdle.
And although historically it has been easier for big Hollywood studios to request and expedite visas, Advanced Parole, and Adjustment of Status/Green Card appointments for their actors and other creative talent, approval of either the request or the visa of itself is not guaranteed. Ditto for the smaller, boutique or independent studios and productions, for whom such wait times and non-issuance of visas could actually mean the difference between keeping the doors open or being able to timely pay their actors, other creatives, and staff.
Some actors and other entertainers find it challenging to even qualify for the ever-changing and murky regulatory categories that would enable them to pursue their livelihoods. For example, issuance of O-1 visas are generally weighted toward superstars in the film industry—those actors who have been substantially featured in film, tv, and more. That regulatory reality makes it difficult for aspiring international actors and other artists to reasonably consider using O-1 for entrance to the U.S. and meaningful work at the beginning of their career.
Large Hollywood studios also, unlike small or independent studios, can of course typically afford to pay for all of the above, which include legal fees and USCIS processing fees—however, the recently proposed increases in USCIS fees will substantially increase those costs and ultimately affect any company’s bottom line.
The upcoming Oscars and other entertainment award ceremonies underscore that the business of arts and entertainment is increasingly global. Filmmaking and its continued success are clearly linked to immigration processes. The U.S. should be removing immigration barriers that slow the progress of the arts and entertainment industry, an ever-lucrative sector. In addition to staffing U.S. consulates, the U.S. should review and clarify visa categories that increasingly cause studios and entertainment talent delay and address the sizeable visa backlog that is still plaguing our arts and entertainment field of dreams in FY 2023.
Gabriel Castro is a Senior Associate with BAL and leads the firm’s Sports and Entertainment Immigration Practice in Los Angeles. An experienced attorney who has worked in multiple aspects of immigration law, including business, family, and removal defense, Gabriel offers his clients both skilled legal advice and exceptional service. Gabriel works with companies of all sizes to help retain artists, entertainers, athletes, coaches, and supporting staff through both nonimmigrant and immigrant visa petitions.
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.