Episode 51: State Department visa numbers, NIL guidance, the expansion of TPS

It’s Nov. 30, and this is your BAL Immigration Report.

• State Department data shows a dramatic increase in the number of visas issued last fiscal year.
• Colleges say they need clarity on name, image and likeness rules for foreign student athletes.
• How Temporary Protected Status can benefit employers and employees.

“When you think of TPS, you think of it normally as a humanitarian strategy, and that’s largely what it is used for is humanitarian purposes. But businesses can also employ it as a business strategy within their operations.”

—Jeff Joseph, BAL Partner

U.S. news

FY2023 nonimmigrant visa numbers

New State Department data shows that the U.S. issued more than 10.4 million nonimmigrant visas in the 2023 fiscal year. This figure is significantly more than the 6.8 million visas issued in the 2022 fiscal year. The department said half of the U.S. embassies and consulates adjudicated more nonimmigrant visas than ever before, even as visa issuance ramps up.

Some embassies and consulates are still grappling with appointment and processing delays. In a press release, the department said it continues to explore new technologies to assess opportunities to streamline operations as it looks to the future.

Federal guidance on NIL

Universities want federal guidance on NIL. That was the message BAL’s Gabriel Castro and Tiffany Derentz heard when meeting with more than 30 Division I schools to seek their insights and feedback on the issue.

Under NCAA rules, college athletes are allowed to make money from their name, image and likeness, or NIL. But foreign student athletes are largely left out because F-1 student visas place strict limits on the ability to work in the U.S. We asked Castro for his analysis:

“The biggest takeaway of the entire session was that the universities, more than anything else, just want clarity. They want to be able to know exactly how these rules are going to apply, and they just want to toe that line. More than anything else, they just want clarity and to be able to have rules to follow.”

Castro and Derentz detailed all of their insights in a recent article, “Uneven playing field: F-1 college athletes, NIL and the need for government action.”

U.S. news roundup

• Bloomberg Law reported that the State Department could launch its domestic visa renewal pilot program as soon as January.
• The U.S. Travel Association called on the federal government to extend visa interview waiver authorities.
• Under a new agreement, French nationals can now apply for U.S. E-1 and E-2 visas that are valid for up to four years.

Spotlight

Conversation with Jeff Joseph, BAL partner: Temporary Protected Status as an immigration strategy.

BAL Immigration Report: The Biden administration has significantly expanded TPS, which allows foreign nationals to remain in the United States temporarily if they are unable to return to their home country safely. TPS designations are in place for 16 countries, including Afghanistan, Ukraine and Venezuela. BAL Partner Jeff Joseph, who leads the firm’s Denver office, gave us a primer on how TPS works.

Joseph: TPS is both a creature of statute, which means it’s congressionally authorized, but it’s also a creature of executive discretion, because the president or the executive agency can authorize Temporary Protected Status on a discretionary basis. It is essentially temporary, and it provides people who are in the country either an authorized status or not authorized status with protection from being deported. It’s essentially a way to stay here and have work authorization because of conditions of civil strife or natural disaster or other humanitarian reasons in their home countries for which they can’t return.

BAL: Joseph says the expansion of TPS is changing how businesses use it as a part of a broader immigration program.

Joseph: When you think of TPS, you think of it normally as a humanitarian strategy, and that’s largely what it is used for is humanitarian purposes. But businesses can also employ it as a business strategy within their operations. For example, if you have a mining company that does a lot of mining in Venezuela and happens to employ people on L visas in the United States from the mining company. They are limited if they’re here on L status — they have a maximum period of time that they can remain. But if you can switch them over to TPS, TPS essentially puts a pause on their L status and allows them to remain indefinitely in work authorization through TPS so that they can pursue PERM, pursue green cards without jeopardizing their L or H status and max it out. So it can be used as a long-term strategy to provide work authorization for individuals from certain countries who are in the United States and working for employers.

BAL: We asked Joseph if he sees any downsides to this strategy.

Joseph: The real issue with TPS is that it’s temporary and it’s at the discretion of the executive. We rarely see TPS taken away. Once it’s granted, it’s hardly ever taken away because it’s granted for conditions of human strife, and until the conditions in the home country change, it’s not going to be taken away by the executive. So that’s really the only downside is it’s discretionary and it’s temporary. But really, from an employer perspective, if you have populations from the countries represented, you should look at it as a means of utilizing it for long-term work authorization for employees — regardless of their classification, regardless of whether they’re a high-skilled worker or an essential skills worker — everybody can utilize TPS in the same way. What it does is essentially provides a method for long-term work authorization that isn’t subject to caps, it isn’t subject to numerical limitations, it isn’t subject to maximum time periods. It’s really at the discretion of the executive for as long as it exists.

BAL: Joseph says BAL and other organizations are working to scale up to help meet the needs of TPS-eligible individuals in the U.S.

Joseph: TPS is a humanitarian strategy, and so it’s definitely something that we at BAL are looking to leverage our ability to provide legal services to this population that’s in definite need. They’re arriving in large numbers in city centers around the country, and we want to be able to use our amazing technology in the same way that we serve our corporate clients. We have this amazing ability to scale legal services for corporate clients, and we think that we can do the same thing for communities that are in need. Whether those are pro bono, low bono or regular paying clients, we can leverage these services to provide TPS and other benefits like DACA or other expanded humanitarian options for people across the country and to utilize what we have internally through our operations departments, our knowledge management and our technology to provide it on scale.

BAL: Jeff Joseph will join Marielena Suarez, of Denver’s Organización Papagayo, next week for a BAL Community event on TPS options and strategies. For more information, visit community.BAL.com.

Global news

EU talent pool proposal

The European Commission proposed a new European Union talent pool to match employers with job seekers in third countries. The new recruiting platform could facilitate the placement of foreign workers into EU-wide shortage occupations.The talent pool would give employers in participating member states access to a wider allotment of workers, making international recruitment easier and faster. The European Parliament and Council will now negotiate details of the proposal for implementation.

India resumes e-visas in Canada

The Indian High Commission in Ottawa has resumed issuance of e-visas to Canadian nationals two months after they were initially suspended. India issues e-visas to Canadian citizens for tourism and business purposes. The Indian government previously resumed processing of entry, business, medical and conference visas in late October. This resumption of Indian visas and e-visa services indicates a continued de-escalation of diplomatic tensions between the two countries.

Global news roundup

• The Australian government broadened the pathway to permanent residence for some high-skilled foreign workers.
• The United Kingdom announced an increase to its minimum wage.
• Canadian officials launched a previously announced permanent residence program for Colombian, Haitian and Venezuelan nationals.

Follow us on X, and sign up for daily immigration updates. We’ll be back next week with more news from the world of corporate immigration.