The White House Office of Management and Budget has completed its review of a final H-1B modernization rule.

Key Points:

  • The text of the rule is not yet available, but OMB review is the final step in the regulatory process before publication.
  • As BAL reported last week, U.S. Citizenship and Immigration Services previously indicated that it may seek to finalize changes to the registration selection process before other portions of the rule that would make changes to H-1B eligibility requirements. This rule may therefore be limited to changes to the H-1B registration selection process, though exact details of the regulation will not be known until the text is released.

Background: In October 2023, USCIS proposed significant changes to the H-1B program that would impact eligibility requirements, program oversight, the H-1B selection process and other aspects of the H-1B program. The proposal drew more than 1,300 comments in a comment period that ended Dec. 22. Business and immigration coalitions have been generally supportive of USCIS’ proposal to shift to a beneficiary-centric lottery, but reactions have been more mixed on some of the proposal’s other measures. BAL will provide updates as information becomes available.

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.

The State Department is poised to launch its H-1B domestic visa renewal pilot program at noon ET on Monday, Jan. 29.

Key Points:

  • As BAL previously reported, the pilot will run from Jan. 29 to April 1, 2024, and will be open to a total of 20,000 H-1B visa holders whose previous H-1B visa was issued within certain time frames by U.S. diplomatic missions in Canada or India.
  • As of Wednesday, Jan. 24, applicants can begin pre-loading DS-160 applications via the State Department’s Consular Electronic Application Center. A pre-assessment questionnaire to help foreign nationals determine if they may qualify for the pilot is available here on BAL.com.
  • The State Department published a detailed FAQ on the pilot program last week covering a number of topics, including which applicants qualify, required documents and fees, processing logistics, refusals and ineligibilities, related F-1 and H-4 questions and the proper location to select (“U.S.-Domestic”) when completing the application.

BAL Analysis: The pilot program is an important step toward bringing back domestic visa renewal, which has not been widely available in the U.S. since 2004. The pilot will be open only to a limited number of H-1B visa holders, but it could be expanded to other individuals and visa categories later in 2024. BAL will provide additional updates as information becomes available.

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.

A new USCIS fee schedule clears White House review. Companies are in the midst of H-1B contingency planning. And Bloomberg Law’s Andrew Kreighbaum joins us to discuss the calls for increased work permit options for migrants.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.

The White House Office of Management and Budget has finished its review of a final rule to raise U.S. Citizenship and Immigration Services filing fees.

• The text of the rule, including the final fee levels, is not yet available, but OMB review is the last step in the regulatory process before publication.
• In December, the Department of Homeland Security indicated it was targeting April 2024 to publish the final rule, though the agency could publish sooner.

Background: In January 2023, USCIS proposed a new fee schedule that would increase fees by a weighted average of 40% — and more for most high-skilled classifications. The proposal drew nearly 8,000 public comments last year, with business and trade organizations saying that while USCIS must adjust fees from time to time, the agency should take steps to improve services and reduce increases where possible.

BAL Analysis: The fee rule is expected to have a significant impact on companies’ immigration budgets once it takes effect. The rule is expected to have a delayed effective date, and it is possible that litigation could further delay implementation. BAL will continue following the fee rule through the regulatory process and will provide updates as information becomes available.

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.

The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination requests.

PERM Processing: As of Dec. 31, the department was adjudicating applications filed in January 2023 and earlier, conducting audit reviews on applications filed in December 2022 and earlier, and reviewing appeals for reconsideration filed in March 2023 and earlier.

Determinations Month Calendar Days
Analyst Review December 2023 363
Audit Review December 2023 504

PWD Processing: As of Dec. 31, the National Prevailing Wage Center was processing PWD requests filed in May 2023 and earlier for H-1B OEWS cases and June 2023 and earlier for PERM OEWS cases. For PERM non-OEWS and H-1B non-OEWS cases, the department is processing requests filed in February 2023 and earlier. Redeterminations were being considered on appeals filed in June 2023 and earlier for both H-1B cases and PERM cases. Finally, Center Director Reviews were being conducted for PERM cases filed in October 2023 and earlier. As of Dec. 31, there are no pending Center Director Reviews being conducted for H-1B cases.

BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in January 2023 and earlier, but PWDs for some requests filed in July 2023 and earlier for H-1B OEWS and PERM OEWS cases.

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.

A final H-1B rule is under White House review. The Supreme Court hears a pair of cases that could significantly affect immigration. And a look at the impact of immigration filing fee increases on touring artists and musicians.

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.

A final regulation to “modernize” the H-1B visa program is under review at the White House Office of Management and Budget.

Key Points:

  • The text of the rule is not yet available, but OMB review is the final step in the regulatory process before publication.
  • It is not yet clear whether the final rule will be limited to changes to the H-1B registration selection process or will include provisions that would make substantive changes to H-1B eligibility. U.S. Citizenship and Immigration Services previously indicated that it may seek to finalize changes to the H-1B registration selection process before other portions of the rule.
  • The proposed changes to the H-1B registration process focus on the manner in which USCIS selects from the pool registrations and would not affect employers’ ongoing cap planning. However, under the proposal, employers would be required to provide passport information for each intended beneficiary as part of registration.

BAL Analysis: USCIS published a 227-page proposed H-1B modernization rule in October. The proposal drew more than 1,300 comments in a comment period that ended Dec. 22. Business and immigration coalitions have been generally supportive of USCIS’ proposal to shift to a beneficiary-centric lottery, but reactions have been more mixed on some of the proposal’s other measures. BAL will continue monitoring the proposal through the regulatory process and will provide updates as information becomes available.

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.

U.S. Citizenship and Immigration Services announced Friday it has received enough petitions to reach a cap on H-2B visas for returning workers with start dates in the first half of the 2024 fiscal year.

Key Points:

  • In November, the Department of Homeland Security and Department of Labor published a regulation to provide 64,716 additional H-2B visas this fiscal year. This supplemental allocation included 20,716 visas for returning workers with start dates in the first half of the fiscal year (Oct. 1 to March 31).
  • USCIS said Friday it has received enough petitions to reach 20,716 visas. Petitions with receipt dates on or after Jan. 10 will not be considered under this cap.
  • The agency continues to accept country-specific petitions for H-2B workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti and Honduras. As of Jan. 12, USCIS had received petitions requesting 4,500 workers for 20,000 country-specific visas available this fiscal year.

BAL Analysis: News that the returning worker cap for the first half of the fiscal year has been reached is a further sign of the popularity of the H-2B program. Despite high demand, however, employers with workforce needs in both the first and second half of the fiscal year still have options. For more information, contact BAL or visit BAL’s temporary workforce solutions page here.

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.

H-1B and H-2 modernization, fee hikes and changes to the green card process top the Biden administration’s regulatory priorities on employment-based immigration, according to the semiannual regulatory agenda published this week. The administration also indicated it would propose regulatory changes related to certain nonimmigrants, including those who lose their jobs, in late 2024.

  • H-1B modernization. The Department of Homeland Security will continue to accept comments on its wide-ranging proposed rule to modernize the H-1B program until Dec. 22. The agency must review the comments, formulate a final rule and send it to the White House Office of Management and Budget for review before publication. As discussed at a recent BAL Community event, DHS has said it is considering separating out provisions to bolster the H-1B registration process in an effort to implement them for the upcoming cap season.
  • H-2 modernization. DHS is finalizing a rule that would “modernize and reform” the H-2A and H-2B programs. The agency published a proposal on Sept. 20 designed to reduce inefficiencies, enhance pay protections and address “aspects of the program that may unintentionally result in exploitation or other abuse of persons seeking to come to this country as H-2A and H-2B workers.” DHS accepted comments on the proposal through Nov. 20 and now must review the comments before publishing the final rule.
  • USCIS fees. DHS plans to increase fees that U.S. Citizenship and Immigration Services charges for immigration services. In January 2023, USCIS published a proposal that would raise fees for immigration benefit requests by a weighted average of 40% — and more for most business categories. USCIS has said the increased fees would allow the agency “to more fully recover its operating costs, reestablish and maintain timely case processing, and prevent the accumulation of future case backlogs.” Business groups have said that while they understand USCIS must adjust its fees, the agency should take additional steps to improve services and reduce proposed hikes where possible. The regulatory agenda indicates DHS is aiming to publish the final fee rule in April 2024. The previous agenda had targeted March 2024.
  • Lawful permanent residence (adjustment of status process). DHS is working on a proposal to amend the adjustment of status process. The agency says it will propose changes designed to “reduce processing times, improve the quality of inventory data provided to partner agencies, reduce the potential for visa retrogression and promote the efficient use of immediately available immigrant visas.” The agency is aiming to publish the proposal in March 2024.
  • Lawful permanent residence (immigrant petitions). DHS is also planning to propose amendments to regulations governing employment-based immigrant petitions in the first, second and third preference classifications. The changes would include updating and modernizing provisions for individuals of extraordinary ability and outstanding professors and researchers. They would also include clarifying evidentiary requirements for first preference classifications, second preference national interest waiver (NIW) classifications and physicians of national and international renown. The agency is aiming to publish this proposal in August 2024.
  • Nonimmigrant workers. DHS indicated it plans to publish a proposal in late 2024 to amend regulations related to certain nonimmigrants. The agency said the proposed changes would include updating employment authorization rules for certain dependent spouses; increasing flexibilities for some nonimmigrant workers, including those who resign or are terminated from employment; and additional measures to modernize policies and procedures for Employment Authorization Documents. DHS aims to publish the proposal in October 2024.

BAL Analysis: While the regulations would have a significant impact on immigration programs, they are at different stages in the rulemaking process, and policies are still being formulated. Proposed regulations are subject to a public notice-and-comment period, during which members of the public may submit feedback. BAL continues to monitor the regulatory agenda and will provide clients with updates on individual regulations as they move through the rulemaking process.

BAL Community is hosting a second event on Thursday, Dec. 14, on the H-1B modernization proposal. BAL attorneys Eileen Lohmann and Steve Plastrik will take a deeper dive into the specifics of the proposed rule and provide an overview of the regulatory timeline. For more information or to join BAL Community, visit community.bal.com.

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.

U.S. Citizenship and Immigration Services announced it will soon launch online organizational accounts and electronic filing for H-1B petitioners.

Key Points:

  • USCIS said it would launch organizational accounts next month for both non-cap filings and fiscal year (FY) 2025 cap season filings that will allow H-1B applicants to “experience new account enhancements, including improved design and case management features.”
  • Shortly after the launch of the organizational accounts, the agency will begin allowing H-1B petitioners to file Forms I-129 and associated Form I-907 premium processing requests online through their organizational account or file a paper-based Form I-129. The H-1B registration process is only available online.
  • The introduction of the organizational account will give companies the ability to allow multiple individuals within the business entity or company to gain access as well as allow collaboration with their legal representatives to collaborate on and prepare the H-1B registrations and applications.

Additional Information: USCIS said it would host national engagements on Jan. 23 and 24, with smaller sessions at other times, to provide more information on the new processes. Additional information will be posted to USCIS’ H-1B Electronic Registration page here. BAL will provide additional information as it becomes available.

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.