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The Department of Labor has extended the deadline on a Request for Information on whether the agency should revise its list of Schedule A job classifications that do not require permanent labor certification.
Key Points:
BAL Analysis: Green cards in the EB-2 and EB-3 classifications generally require permanent labor certification, or PERM; however, PERM is not required for occupations on the Schedule A list of shortage occupations. This list has not been revised since 2004, and the DOL’s move to ask for public input is a welcome development toward modernizing the list and the process for revising it. The Request for Information is a preliminary step in the rulemaking process, and several steps must be completed before the list can be updated. BAL will continue following this matter and will provide updates as information becomes available.
This alert has been provided by the BAL U.S. Practice Group.
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Many people hoped that the pace of layoffs in the United States would ease in 2024, but the results thus far have not been promising. While most attention has focused on the tech industry, troubling signs now indicate that other industries may follow. Already, several major retailers have announced significant layoffs, and a recent survey of 906 business leaders in various industries found that nearly four in 10 expect to lay off workers in 2024.
Obviously, the experience of losing a job is challenging for anyone. But for foreign nationals in the U.S. on nonimmigrant work visas, such as the H-1B, it is particularly difficult. These visas are usually sponsored by the employer who hires the employee, meaning that if the job is lost, so is the sponsorship.
While American citizens who are laid off may embark on a job search that could stretch for many months as they collect unemployment benefits, foreign nationals on work visas have it tougher. They may stay in the U.S., but to do so, U.S. Citizenship and Immigration Services requires that they generally must find a new job within 60 days to retain their nonimmigrant status. That might sound like adequate time, but for many job seekers it is actually quite short.
Generally, if these workers have not secured a new job within 60 days, they lose their nonimmigrant status and must leave the country. But there are options that could allow them to stay, even if they can’t find a new job.
These options include
It is important to point out that when foreign nationals do leave the country, that doesn’t necessarily mean their days of working in the U.S. are over. Nothing prevents them from continuing their search for an American job and a new work visa from abroad.
For foreign nationals who are laid off in the U.S. and want to stay, the “alphabet soup” of visa options might appear daunting. But solutions, whether temporary or permanent, may be possible. It is important for them to seek counsel and learn about eligibility requirements to help tailor their search.
For employers, meanwhile, it is advisable to start thinking now about the prospect of handling possible layoffs down the road and being aware that their foreign workers are likely to experience a greater negative impact when they are let go. Employers might consider assisting their laid-off foreign national employees with guidance, and perhaps access to outside counsel, if their jobs come to an end. This approach may burnish an employer’s reputation as a place that is sensitive to employees’ needs and produce long-term benefits.
For both employers and employees, planning for the future is critical. While the economy is showing positive signs, the market remains volatile.
When the stakes are so high, having a plan in place that can be implemented immediately is crucial.
Steven is a senior associate in BAL’s Dallas office. To get in touch with Steven or another BAL attorney to discuss options before, during or after layoffs, contact us here.
The U.S. State Department released the March Visa Bulletin Friday, showing little movement in the employment-based Final Action Dates and Dates for Filing charts. U.S. Citizenship and Immigration Services announced that in March it will use Final Action Dates to determine filing eligibility.
Because Dates for Filing are generally more progressive, the switch to Final Action Dates means that priority date cutoffs will move back next month—and fewer applicants will be eligible to file for employment-based green cards.
When comparing February’s Dates for Filing chart to March’s Final Action Date chart, the movement of cutoffs for being eligible to file for employment-based green cards is as follows:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: The March Visa Bulletin and the switch to Final Action Dates come after employment-based priority date cutoffs advanced in key categories in January and saw no movement in February. This is the first time this fiscal year that USCIS has used the Final Action Dates to determine filing eligibility for employment-based applicants. USCIS will continue using the Dates for Filing chart to determine family-based filing eligibility next month.
U.S. visa processing posts in India processed more visas than ever before in 2023, including a record number of international students, officials recently announced.
Additional Information: In a statement, the embassy said streamlined processing of employment visas remains a top priority for the U.S. consular team. Efforts to provide more efficient and convenient services have included the opening of a new $340 million facility in Hyderabad in March 2023. In addition, the State Department recently launched a domestic visa renewal pilot program, which allows eligible H-1B holders to renew their visas in the U.S.
BAL Analysis: The increase in visa processing in India was part of a larger trend; the State Department processed a near-record level of visas in the fiscal year that ended Sept. 30, 2023. The U.S. Mission in India set a goal of processing 1 million nonimmigrant visas in 2023, a target that was reached in September. While visa services at some embassies and consulates remain delayed, the U.S. Mission in India said it would continue to “invest in the future of consular services in India and explore ways to provide more efficient and convenient services.”
Read more U.S. immigration news.
BAL joined a group of more than 50 top U.S. companies this week in signing a friend-of-the-court brief in support of protecting the Deferred Action for Childhood Arrivals program.
The brief was filed in the Fifth Circuit Court of Appeals in the ongoing litigation challenging DACA. The Fifth Circuit is hearing the case after a federal judge in Texas issued a ruling declaring a Biden administration regulation to protect DACA unlawful. The administration has appealed that ruling. Oral arguments are expected later this year.
Proponents assert that DACA has remained a transformative policy, contributing an estimated $13.3 billion to the U.S. economy each year. If the program ends, not only would hundreds of thousands lose their immigration status and employment authorization, but companies would also lose valued employees and the national gross domestic product could contract by up to $460 billion, according the Coalition for the American Dream.
“By making hundreds of thousands of DACA recipients eligible for work authorization, [DACA] expands work opportunities for everyone,” the brief said. “DACA recipients played a particularly important role as front-line workers responding to the COVID-19 pandemic. Today, with unemployment at low levels and worker shortages plaguing many sectors of the economy, the contributions of Dreamers are more important than ever.”
The complete list of companies that signed the brief is available here.
As of Sept. 30, U.S. Citizenship and Immigration Services reported that there were more than 544,000 active DACA recipients in the United States. Under a court order in the current litigation, the U.S. government is permitted to accept and process DACA renewals and related work and travel authorization requests; officials are not permitted to process first-time DACA requests.
BAL Analysis: The business community continues to show strong support for DACA and the crucial role Dreamers play in the U.S. economy. Given the uncertain environment, DACA recipients who qualify for a renewal are urged to apply for one as soon as they can. BAL will continue to follow the litigation challenging DACA and will provide updates as information becomes available.
Read more of the latest immigration news.
On Jan. 30, the Department of Homeland Security published the long-anticipated and final U.S. Citizenship and Immigration Services fee rule. Under the final rule, immigration filing fees will see their most dramatic increases in years. The new fee schedule is set to take effect April 1, 2024.
We’re breaking down the new rule to help you understand how these fee increases could impact your business and its immigration program.
A chart summarizing the fee increases is available on page 5 of the final rule that was officially published in the Federal Register on Wednesday, Jan. 31.
The fee for an H-1B petition will increase from $460 to $780, an increase of 70%.
The H-1B registration fee will also increase from $10 to $215, though the higher rate will not be in effect for this year’s H-1B registration period, which runs from March 6-22. USCIS does, however, plan to charge the higher fee for H-1B petitions once cap filing begins April 1. According to the rule, any benefit request postmarked on or after the April 1 effective date must be accompanied with the higher fee.
The final rule also includes a $600 asylum program fee that will be charged for each Form I-129 and Form I-140 filing. This fee will come on top of increases to base filing fees. However, the fee will be reduced to $300 for small employers (25 or fewer employees) and nonprofit organizations are exempt from the fee.
Finally, the rule will also change premium processing timeframes from calendar days to business days, potentially extending the processing window.
We’ve crunched the numbers to illustrate the impact to hypothetical small- and mid-size programs.
ABC Company completed 54 filings in 2023 that will be impacted by the fee increases.
In 2023, the total filing fees the company paid was $23,445.
With the new fees applied, ABC Company’s total fees will increase by 134% to $54,920, an increase of $31,475.
XYZ Company completed 259 filings in 2023 that will be impacted by the fee increases.
In 2023, the total filing fees the company paid was $108,735.
With the new fees applied, XYZ Company’s total fees will increase by 120% to $239,705, an increase of $130,970.
So what will the increases mean for YOUR business?
Our USCIS fee calculator allows you to calculate the filing fees for your program.
BAL and BAL Community continue to review the final rule and will provide updated information and resources in the coming days and weeks. Subscribe to our newsletter and join BAL Community for access to upcoming focus groups, webinars and additional expert analysis on the USCIS fee increases.
BAL updated its USCIS Fee Calculator following the posting this week of a final rule to increase immigration filing fees.
BAL Analysis: Developed by BAL Community, the USCIS Fee Calculator allows users to calculate the impact of filing fee increases on their immigration programs and is available on BAL.com under Insights. BAL will continue to provide updates and resources on the fee increases in the weeks ahead.
U.S. Citizenship and Immigration Services announced this week that H-1B cap registration will open March 6.
Additional Information: USCIS first announced the dates of the filing window in a press release about the new regulation that makes changes to the H-1B selection process. The agency has explicitly stated that changes to the H-1B selection process are designed to “bolster integrity and curtail the potential for fraud while improving and streamlining our application processes … [making] H-1B selections more equitable for petitioners and beneficiaries.” This change has the potential to reduce the overall number of registrations and boost H-1B selection rates for employers.
The Department of Homeland Security posted a pair of final regulations Tuesday, one that will increase U.S. Citizenship and Immigration Services filing fees and another that will overhaul the H-1B selection process.
The final rule also includes a $600 Asylum Program Fee that will be charged for each Form I-129 and Form I-140 filing. This fee will come on top of increases to base filing fees. The asylum fee had been included in a January 2023 proposed rule, though the final rule reduces it to $300 for small employers (25 or fewer employees) and exempts nonprofit organizations. A chart summarizing the fee increases is available on page 13 of the pre-publication version of the final rule. The rule is scheduled to be officially published in the Federal Register on Wednesday, Jan. 31.
BAL Analysis: The USCIS fee and H-1B rules have been in the regulatory pipeline for years and will have a significant impact on employers’ immigration programs. The new fee schedule is scheduled to take effect April 1 and the changes to the H-1B selection process are set to take effect March 4. DHS posted the fee and H-1B rules, which total more than 700 pages, Tuesday at 4:15 p.m. ET. BAL continues to review the final rules and will provide updated information and resources in the coming days.
The Department of Homeland Security will extend and redesignate Syria for Temporary Protected Status for 18 months, from April 1, 2024, through Sept. 30, 2025.
Additional Information: Existing TPS beneficiaries who wish to extend their status through Sept. 30, 2025, must re-register during the 60-day re-registration period. In addition to demonstrating continuous residence in the United States since Jan. 25, 2024, and meeting other eligibility criteria, initial applicants for TPS under this designation must demonstrate that they have been continuously physically present in the United States since April 1, 2024, the redesignation effective date.
BAL Analysis: Syria was initially designated for TPS on March 29, 2012, on the basis of extraordinary and temporary conditions that prevented nationals from returning safely. The decision to extend TPS for Syrian nationals was made due to a longstanding conflict, along with natural disasters and disease outbreaks, DHS said. The extension and redesignation will allow additional eligible Syrian nationals to apply or reapply for TPS and EADs.