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Israeli nationals are now eligible for visa-free travel to the United States. Europe officially postpones its travel authorization program. And U.S. Citizenship and Immigration Services proposes big changes to the H-1B lottery.
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 US Practice Group.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
A proposal to modify the H-1B and F-1 visa programs clears White House review. The U.S. halts visa services in Israel. And an interview with BAL CEO Jeremy Fudge.
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.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
In late April, U.S. Citizenship and Immigration Services released data showing what the U.S. immigration law community already knew: The H-1B registration system is broken.
This year, USCIS received 780,884 total registrations for just 85,000 visas available under congressionally mandated caps. The data also revealed that more than half of the registrations were submitted on behalf of beneficiaries with multiple registrations — i.e., multiple companies submitted registrations for the same individual. In April, the Wall Street Journal reported that roughly 408,000 registrations were submitted on behalf of just 96,000 individuals.
Employers are required to state that they actually intend to hire individuals they put in the lottery. USCIS raised allegations of abuse of the registration process, saying the large number of individuals with multiple registrations “raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary.”
Many of the problems were predicted when the registration system was implemented in 2020 and, if anything, it is surprising that the system wasn’t flooded to this extent sooner.
Before 2020, employers had to file full H-1B petitions the first week of April for H-1B-elgible foreign workers they hoped to hire. USCIS would then conduct a lottery to determine which petitions it would adjudicate.
USCIS designed the new registration system to reduce costs for employers and the administrative burden on the agency. Under the system, employers submit registrations in March on behalf of individuals they intend to sponsor, and then are invited to submit full petitions for those who are selected.
The problem is the registration system created a low barrier to entry. The registration fee of just $10 and minimal required information provide little incentive not to place foreign workers in the lottery. When it proposed the registration system, USCIS mentioned the risk of companies “flooding the system with non-meritorious registrations.”
This problem now appears to be a reality. So how can it be fixed?
Let’s start by giving USCIS some credit. The agency’s decision to release more detailed data than in the past has given stakeholders a peek behind the curtain and provided them a better opportunity to suggest solutions. In its April announcement, USCIS also said it had “already undertaken extensive fraud investigations.”
Furthermore, as the agency works on a proposed regulation to modernize the H-1B program, it has committed to “bolstering the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system.” USCIS has not yet indicated what specific measures it will propose, but these actions show the agency recognizes the gravity of the problem and is working on solutions.
However, the rulemaking process takes time, and according to the most recent regulatory agenda, the proposed H-1B rule is not expected until the end of the year. USCIS has also proposed increasing the registration fee from $10 to $215 as part of a broader proposal to dramatically increase fees to cover costs. The final increase could be smaller, but even a $215 fee might have a limited impact on the number of registrations companies submit.
In addition, uncertain timetables and the possibility of litigation for both the not-yet- proposed H-1B modernization rule and the fee rule — which has been proposed but not targeted to be finalized until March 2024 — make it impossible to know whether changes could be implemented before next March’s registration window.
The future of the H-1B registration process is of paramount concern. In the near term, USCIS should continue to provide as much transparency as possible to the public, including regarding the number of petitions it receives and its actions to address potential misuse of the system. Additional information about whether the agency plans to conduct a second registration lottery would enable employers to plan and set expectations with their employees.
While there is no silver bullet, some possibilities the agency could consider include selecting registrations by unique beneficiary, such that eligibility for H-1B sponsorship does not hinge on the number of registrations filed on a beneficiary’s behalf, and transitioning to online filing in conjunction with a “Known Employer” program.
The agency should continue to seek input from stakeholders and approach this issue thoughtfully but with urgency.
Employers can ill afford another lottery like this year’s, where just 14.6% of registrations were selected. In the absence of congressional action to raise the H-1B cap, which has remained at 85,000 since 2006, more transparency and a well-crafted regulation could help ensure this in-demand resource remains viable.
For all its limitations, the H-1B program remains the primary pathway for high-skilled foreign nationals to remain in or come to the U.S. to pursue a career. The program is crucial to helping large and small employers hire and retain needed talent in industries ranging from tech to health care to engineering. The importance of getting the registration system right cannot be understated.
Passport wait times begin to improve. Domestic Visa Renewal could be a game-changer but will take time and resources. And a look at the impact artificial intelligence may have on immigration law.
When news broke earlier this year that the U.S. State Department was planning a pilot program to bring back domestic visa renewals, employers were understandably enthusiastic. After all, companies and immigration groups have advocated for this change for years—and the benefits would be significant.
A domestic visa renewal program would mean that, for the first time in nearly two decades, eligible nonimmigrant visa holders would be able to renew their visas in the United States without having to travel abroad to an embassy or consulate. This would give foreign workers greater certainty in work and travel. They would no longer have to worry about being stranded abroad for weeks or months at a time waiting for a visa renewal, and companies would have more confidence that key personnel would be able to continue working on projects in the United States. Hasty arrangements for employee transfers to international offices or remote work could finally be in the past.
Domestic visa renewal would also relieve some of the visa processing demands on embassies and consulates, potentially reducing backlogs and wait times across all visa categories, including B-1/B-2 business and tourist visas.
But while the pilot holds promise, there are reasons to temper expectations—at least for now.
The pilot would be just that—a pilot. It would likely apply to a limited number of H-1B renewal applicants and would run for a set period. The State Department would then assess the pilot and decide if and how to expand it into a permanent program. Scaling up domestic processing to cover more nonimmigrant visa categories and nationalities would be an immense challenge.
After all, it’s been two decades since domestic visa renewal was broadly available in the United States. Regulations dating back to 1987, when the State Department’s Visa Office reorganized its visa rules, allowed for domestic visa renewal for E, H, I and L visa holders. O and P visa classes were added later.
A set of post-9/11 reforms proved challenging for the State Department to comply with, however. Specifically, statutorily imposed in-person interview and fingerprint requirements made it impossible for the State Department to renew most visas in the United States because it did not have adequate facilities for these mandates. Currently, the only visas issued in the United States are for foreign government officials, staff of designated international organizations and North Atlantic Treaty Organization personnel (i.e., certain A, G and NATO visas). These visa classes are distinct from other visa categories and do not require interviews or fingerprints.
Even as domestic visa renewal ceased, the regulations that allowed for it were never taken off the books, which means the State Department has the green light to explore domestic visa renewal as an option. The State Department’s Visa Office has been preparing for the launch of the domestic renewal pilot by working through an array of logistical, operational and legal challenges.
The good news is in-person interview and fingerprint requirements won’t be deal-breakers like they were in 2004. The State Department has the authority under existing law to waive interviews for certain applicants renewing the same visa classification. And while the Department does not have fingerprints on file for all applicants (in particular, those who applied for a visa when they were under 14 or those who were issued a COVID-19-related interview waiver for an H-1, H-3, H-4, L, O or P visa and had not previously provided fingerprints), most renewal applicants already had their fingerprints taken at the time of their initial application.
Other hurdles may be more difficult to overcome. Because the Visa Office has not permitted domestic visa renewals in nearly 20 years, no office or team is in place to take on the work. Early indications are that domestic visa renewals under the pilot may be handled by existing remote processing teams, but the Visa Office would need to staff up in the long run.
Not only would the Department have to hire and train personnel to adjudicate renewals, but it would also have to find and set up office space to house new teams. The space would have to meet strict security protocols, and access would be limited to those who have the proper clearance. Payment and document delivery would also need to be established—something the Visa Office is certainly looking into in advance of the pilot launch.
Despite these challenges, the pilot is a step in the right direction. The COVID-19 pandemic foregrounded the problems with requiring visa holders to apply for renewals abroad. The State Department deserves some credit for finding creative solutions during these unprecedented times, including its use of broader interview waiver authorities, expansive use of remote processing capabilities and favorable policy changes relating to third-country nationals to handle the visa backlog. Domestic visa renewal would be a more fundamental and longer-term fix to ongoing workload and logistical challenges, but employers will have to be patient as the effort gets off the ground.
The government is open—for now. The Supreme Court declines to hear a case challenging Optional Practical Training. And employers turn an eye toward the upcoming H-1B cap season.