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A federal judge dismisses a lawsuit challenging a Biden administration immigration program.
U.S. Citizenship and Immigration Services announces it has reached the H-2B cap for the second half of the fiscal year.
And an H-1B cap update with BAL Senior Associate Matt Dillinger.
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 © 2024 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.
USCIS announced Friday it had received enough petitions to reach the H-2B cap for the second half of the current fiscal year.
Key Points:
Additional Information: In addition to announcing that it had reached the H-2B cap for the second half of the fiscal year, USCIS published filing dates for supplemental H-2B visas available under a temporary final rule published last fall. USCIS will:
USCIS will stop accepting petitions under the temporary final rule received after Sept. 16 or after the applicable cap has been reached, whichever occurs first.
BAL Analysis: The H-2B program continues to grow in popularity. BAL is available to help employers develop an H-2B strategy to ensure that key roles are filled. More information is available on BAL’s H-2 temporary workforce solutions page here.
The U.S. State Department released the April Visa Bulletin Friday, showing advancement in key employment-based categories. U.S. Citizenship and Immigration Services announced that in April it will use Final Action Dates to determine filing eligibility.
Final Action Dates Movement:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: April will mark the second straight month that USCIS will use Final Action Dates to determine employment-based filing eligibility. The agency will continue to use Dates for Filing to determine family-based eligibility. The State Department included additional information regarding visa availability in the coming months in the April Visa Bulletin, stating that for employment-based categories, “Very little to no forward movement is expected in the coming months since the final action dates for many categories advanced for April 2024.” They also cautioned that the “final action date projections” indicate what is “likely to happen throughout Quarter Three and Quarter Four of FY24” and that readers “should never assume that recent trends in final action date movements are guaranteed for the future, or that retrogressions will not be required at some point to maintain number use within the applicable annual limits.”
A federal judge dismissed a lawsuit Friday that challenged a Biden administration program that allows a limited number of nationals from Cuba, Haiti, Nicaragua and Venezuela to enter the United States on humanitarian grounds.
Additional Information: In a statement, Secretary of Homeland Security Alejandro N. Mayorkas called the humanitarian program “a key element of our efforts to address the unprecedented level of migration throughout our hemisphere” that other countries see “as a model to tackle the challenge of increased irregular migration that they too are experiencing.” The full statement is available here.
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.
H-1B registration opens.
Canada imposes a visa requirement on some travelers from Mexico.
And a new study from the Cato Institute shows that just 3% of immigrant applicants for green cards will receive them in 2024.
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.
Registration for H-1B cap petitions for fiscal year 2025 opened today.
Additional Information: Following the registration period, USCIS will conduct a lottery to determine which registrations will be eligible for H-1B petition filing beginning April 1. Under a recently published regulation, the agency will switch to a beneficiary-centric lottery this year, meaning each beneficiary can be selected only once, regardless of how many registrations were submitted on his or her behalf. BAL urges employers to work closely with their BAL team as they prepare for H-1B cap registration and throughout cap season.
Copyright © 2024 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.
USCIS provided additional guidance Monday on a new H-1B registration passport/travel document requirement.
Additional Information: The H-1B registration period opens at noon ET on Wednesday, March 6, and closes at noon ET on March 22. During this time, petitioners can use their USCIS online accounts to register H-1B beneficiaries electronically. As BAL has previously reported, the agency will switch to a beneficiary-centric lottery this year, meaning each beneficiary can be selected only once, regardless of how many registrations were submitted on his or her behalf. BAL urges employers to work closely with their BAL team as they prepare for H-1B cap registration and throughout cap season.
Featuring Emily M. Dickens, Chief of Staff and Head of Public Affairs, the Society for Human Resource Management (SHRM).
Certain Ukrainian citizens in the United States are now eligible to apply for re-parole.
H-1B denial rates rose slightly in 2023.
And the Society for Human Resource Management pushes for much-needed reforms to employment-based immigration.