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BAL Partner Ashley Foret Dees is one of the nation’s preeminent experts on H-2 visas and the founder of the Louisiana State Bar Immigration Law Section. Since 2009, she has been a pivotal asset to corporate employers reliant upon temporary or seasonal workers to secure global talent and remain competitive. We recently sat down with Ashley for a conversation about trends in H-2 visa practice and her experiences as a woman in the profession.
What are your areas of practice?
My specialty is representing employers interested in securing the critical skills of global temporary or seasonal workers through the H-2 visa process. There are two types of H-2 visas: H-2A and H-2B. Both visas permit an eligible U.S. employer or agent to hire a temporary or seasonal worker who is a foreign national. An H-2A visa is used solely for the hiring of agricultural workers, and an H-2B permits the hire of nonagricultural workers.
I also represent clients in family immigration, including defense of removal, asylum cases and DACA.
What’s the difference in processing time between H-2A and H-2B visas in FY2023?
H-2A agricultural visas are much easier — you can turn around the entire filing in 60-75 days. Those are very fast because there’s no cap for H-2As.
H-2 B visas are so different, especially this year. We remind employers that nowadays they have to back up their program timeline if they want to apply for an H-2B. Prevailing Wage Determinations are now taking an extra 45 days, which is long. That backs up the timeline to April 15. So, when people call in July and say, “I’d like to talk about October H-2B visas,” it’s like, “Well, we can talk about next year’s October visas.”
What other hurdles are employers interested in H-2 visas encountering?
The majority of employers who utilize the H-2A and H-2B visa programs are small businesses trying to leverage themselves into a really complicated federal visa program. Most small business owners don’t have a grasp on what opportunities are available for employers and find the process intimidating.
What questions are H-2B employers asking about this year’s lottery?
Everyone also wants to know about strategy right now. They’re interested in moving start dates, trying to get a supplemental visa number from one of the special reserved countries, and what to do if they’ve got such a bad position in the lottery their staff won’t be able to arrive this year. I help employers strategize, predict and find solutions within the H-2 program.
Can employers with preexisting immigration programs leverage H-2 visas as a mobility strategy?
There are some entities, like hotels, that should consider H-2s and other visa programs in combination with their existing programs. Hotels could mix having a J-1 trainee program with an H-2 visa program, and then move some of those workers into PERM status. I think there are a lot of industries out there that have a peak need to supplement their staff.
What interested you in immigration law as a field of practice?
The Catholic Charities (CC) in my area of Louisiana ran a very large refugee resettlement program that needed an attorney who spoke Spanish. My introduction to immigration law was doing asylum work with CC, which continued after graduation. Since there were no other practitioners in my area of the state practicing immigration law, I hung a shingle of counsel to a firm in 2009 — and opened my own practice in 2013.
What attracted you to becoming a partner with BAL and relocating your entire team to the firm?
I run a global practice, and my client employers are all over the country. It was an opportunity I couldn’t pass up — to leverage BAL’s advanced technologies and resources and continue to expand my H-2 practice much faster than I could on my own.
BAL is award-winning when it comes to advancing the status of women attorneys in the profession. How important was that to you when you were considering joining BAL?
So important. I think BAL having such diverse partners, attorneys, staff — and particularly women — is awesome.
Most of my clients are men. The interaction with women partners and attorneys is so crucial to my growth, learning and understanding of balance in my own life. And I think women immigration attorneys — and women attorneys in general — are such a powerhouse.
Ashley Foret Dees is a partner with BAL and a leading national expert and strategist in the areas of H-2A and H-2B employment visas. She has over a decade of experience representing clients in agricultural, seafood, hospitality and other industries. Ashley is a regular speaker on H-2 visa topics at the American Immigration Lawyers Association (AILA) Annual Conference and AILA Mid-South Chapter, and previously served on the AILA National Pro Bono Committee. She is also a member and former H-2 Visa Chair of the AILA Department of Labor Liaison Committee. Ashley is fluent in Spanish and founded the Louisiana State Bar Immigration Law Section, which she chaired for several years.
The state of Connecticut is celebrating another NCAA basketball championship, but its U.S. senators are lamenting a broader problem in college sports.
Two weeks ago, Sens. Richard Blumenthal and Chris Murphy, both Democrats, wrote a letter to Homeland Security Secretary Alejandro Mayorkas urging him to address current regulations that make it difficult for foreign student athletes to capitalize on their Name, Image and Likeness.
Blumenthal and Murphy noted that both the University of Connecticut’s men’s and women’s basketball teams had international players who made “significant contributions” this year (Blumenthal later mentioned Adama Sanogo and Aaliyah Edwards specifically), and added that, nationwide, more than 20,000 international students currently compete in collegiate athletics.
“As these athletes compete in their sports’ national championships and other high-profile competitions, any one of them could gain notoriety overnight and have substantial NIL opportunities presented to them,” the senators wrote. “The only thing standing in their way is our outdated regulations on the terms of their visas. This is unacceptable.”
We agree.
The problem stems from the fact that most foreign student athletes are on F-1 visas, which permit work only in limited circumstances. In this context, “work” is often equated with earning money from a U.S. source.
As Blumenthal and Murphy correctly note, current regulations do not “speak to the unique circumstances” of foreign students’ use of their NIL to earn money. This creates two classes of student athletes—U.S. athletes who are able to take any NIL deal they are offered, and foreign athletes who could jeopardize their immigration status for doing the same thing.
There are some workarounds. For example, foreign student athletes can conduct NIL activities while outside the U.S. Others have been successful in converting from an F-1 to an O-1 visa (for individuals with outstanding abilities) or P-1 visa (for athletes, artists or entertainers), which would allow them to work, attend class and participate in their sport.
Neither is a satisfactory long-term solution, however. There are logistical challenges to going abroad, and legal costs and filing fees make applying for a different visa an unattractive option for many student athletes.
A sensible solution would be for DHS to turn to the B-1 Temporary Business Visitor visa as a model. B-1 visitors are barred from “performing skilled or unskilled labor” in the U.S. However, the government has issued rules and guidance regarding a range of business-related activities that are considered permissible (i.e., not “labor”), such as engaging in certain commercial transactions, consulting with business associates, traveling to conferences, short-term training and negotiating contracts.
Even professional athletes can use B-1 visas to participate in tournaments or sporting events if they only receive prize money, which, for some sports, can mean earning millions of dollars.
There is no reason DHS cannot do the same for F-1 international students. After all, they are—first and foremost—students, and most NIL deals are worth far less than the amounts professional athletes can receive competing in multiple tournaments or events.
Many NIL activities require very little of the athlete and may include signing autographs, making personal appearances or posting on social media. These activities are merely incidental to visa holders’ status as student athletes, which requires them to maintain a full course of study. This kind of approach would allow international athletes to secure NIL deals and carry out their end of the bargain in the U.S.—not outside the country.
To date, DHS has not engaged relevant stakeholders on this issue and appears to lack a true understanding of the NIL opportunities available to students. It has been nearly two years since the NCAA adopted its NIL policy, and the government has yet to issue any guidance.
The good news is Blumenthal and Murphy appear to have grabbed Mayorkas’ attention. At a Senate Judiciary Committee hearing last week, Mayorkas thanked Blumenthal for the letter and said he had not previously been aware of the issue.
“We are indeed looking at the issue very carefully,” he said, adding, “We will move with deliberate speed … we will move as quickly as we can.”
Until then, the two-tiered system of college sports will continue. DHS, the ball is in your court.
Gabriel Castro is a Senior Associate at BAL who leads the firm’s Los Angeles office and Sports and Entertainment practice. Tiffany Derentz is a Senior Counsel at BAL who leads the firm’s Washington, D.C. office. She is a member of the firm’s Government Strategies and Sports and Entertainment teams. Castro and Derentz authored a white paper on the NCAA’s NIL rules in 2022 and appeared on a recent episode of the firm’s podcast to discuss the issue.