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The federal government will enter a government shutdown if Congress cannot agree on an appropriations bill or short-term spending measure by the end of the day on Friday, Nov. 17.
While many immigration services are funded by filing fees and may not be directly affected, some would come to a halt, including immigration functions at the Department of Labor. Lawmakers averted a shutdown on Sept. 30, passing a continuing resolution to continue funding the government for 45 days. They must now pass another bill to keep government open.
Key Points:
E-Verify and other programs. A number of programs would be unavailable until they are reauthorized by Congress, including E-Verify. In the event of a shutdown, employers would be unable to enroll in E-Verify, access or create E-Verify cases or resolve tentative non-confirmations. Employers would not be penalized for shutdown-related delays in E-Verify but would still be required to follow Form I-9 obligations and complete E-Verify cases when the system becomes available. Other programs that would be unavailable until they are reauthorized include the Conrad 30 waiver for J-1 physicians and the Special Immigrant Religious Workers program.
BAL Analysis: A government shutdown would have a significant effect on a number of immigration services, particularly those at the Department of Labor. While it remains possible that Congress could pass an appropriations bill or stopgap spending measure before Nov. 17, employers may wish to work with BAL to submit time-sensitive DOL filings before that date. BAL will continue following events in Washington, D.C., and will provide updates as information becomes available.
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.
The State Department has released the December Visa Bulletin, showing no movement in key employment-based categories. U.S. Citizenship and Immigration Services confirmed it would use the Dates for Filing chart to determine employment-based filing eligibility for adjustment of status.
December Visa Bulletin: Dates for Filing for Employment-Based Preference Cases
Additional Information: December will mark the second straight month with no movement on the Dates for Filing chart in key employment-based categories. Priority date cutoffs advanced in October, the first month of the 2024 fiscal year. The State Department has said that while advancement in cutoff dates could potentially occur throughout the current fiscal year, “actual date movements will be dependent on visa demand and issuance patterns throughout FY-2024.”
The business community shows support for Dreamers. The Biden administration announces additional H-2B visas. And more on the role immigration could play in the development of AI in the United States.
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.
The Department of Homeland Security has published lists of countries whose nationals will be eligible for the H-2A and H-2B visa programs in the upcoming year.
Key Points:
Additional Information: The countries whose nationals are eligible for the H-2A and H-2B visa programs are as follows:
*Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.
**Paraguay is eligible to participate in the H-2A program but is not eligible to participate in the H-2B program.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of Oct. 31, the department was adjudicating applications filed in December 2022 and earlier, conducting audit reviews on applications filed in July 2022 and earlier, and reviewing appeals for reconsideration filed in January 2023 and earlier.
Average number of days to process PERM applications last month:
PWD Processing: As of Oct. 31, the National Prevailing Wage Center was processing PWD requests filed in March 2023 and earlier for H-1B OEWS and PERM OEWS cases, March 2023 and earlier for H-1B non-OEWS cases and February 2023 and earlier for PERM non-OEWS cases. Redeterminations were being considered on appeals filed in June 2023 and earlier for H-1B cases and April 2023 for PERM cases. Center Director Reviews were being conducted for H-1B and PERM cases filed in June 2023 and earlier.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in December 2022 and earlier and PWDs for requests filed in March and earlier for H-1B and PERM cases.
The State Department updated current passport processing times, showing reduced wait times for both routine and expedited services.
Additional Information: It may take up to two weeks for applications to arrive by mail at a passport agency or center, and then an additional two weeks or more to receive a completed passport in the mail. These mailing times are not included in the processing times described above.
BAL Analysis: The decrease in wait times is welcome news, especially following significant delays over the summer. Requests for passports tend to increase ahead of holiday travel, however. Applicants should expect delays as the holidays approach and plan accordingly.
The Biden administration announced plans to issue an additional 64,716 H-2B visas this fiscal year.
Background: The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature, such as a one-time occurrence, seasonal need or intermittent need.
DHS makes 66,000 H-2B visas available annually for workers in jobs that are subject to the H-2B cap. Half of these visas are available in the first half of the fiscal year, beginning Oct. 1, and half are available in the second half, beginning April 1. U.S. Citizenship and Immigration Services announced on Oct. 13 that it had already received enough petitions to reach the congressionally mandated cap on H-2B visas for the first half of the fiscal year.
In announcing the supplemental visas, DHS said the additional allotment would “help address the need for seasonal workers and reduce irregular migration.” BAL will provide additional information on the supplemental visas as it becomes available.
Sixty companies and trade associations, including BAL, urged congressional leaders to enact a bipartisan, permanent legislative solution for Dreamers, saying they “make essential contributions” to the U.S. economy.
The Deferred Action for Childhood Arrivals program, which has protected and provided work authorization to hundreds of thousands of Dreamers, faces continued uncertainty after a federal judge ruled in September that the Biden administration’s attempt to protect DACA through federal regulation was unlawful.
In a letter to Democratic and Republican leaders in the House and Senate, the companies said failing to protect Dreamers harms the economy.
“Dreamers make essential contributions to America’s economic well-being, playing a vital role in the workforce, starting businesses, and creating jobs,” the letter said. “They are also consumers with significant purchasing power and contribute millions of dollars in tax revenue to federal, state, and local governments. American businesses in numerous key sectors rely on DACA beneficiaries in their workforce.”
Jennie Murray, president and CEO of the National Immigration Forum, noted that measures to protect Dreamers enjoy popular support.
“Businesses have not forgotten that we need a lasting solution for DACA recipients and other Dreamers,” she said. “America will be stronger when Republicans and Democrats work together to pass reforms that offer certainty to Dreamers, their employers and their communities.”
BAL Analysis: The business community has consistently supported DACA and Dreamers. While DACA has shielded hundreds of thousands of Dreamers from deportation, the program’s future remains uncertain and only Congress can provide a long-term solution to protect DACA. Under the current court order, DACA beneficiaries can continue to renew their DACA and DACA-related Employment Authorization Documents, though first-time requests cannot be approved. BAL will continue to follow DACA litigation and will provide updates as information becomes available.
The final day to register for a 2025 Diversity Visa application is Nov. 7. Registration will close at noon EST that day.
Background: Also known as the Green Card Lottery or the Visa Lottery, the Diversity Visa program allows nationals of countries with low U.S. immigration rates and who meet eligibility requirements to register for a chance to apply for a U.S. immigration visa. The State Department is alerting individuals to be wary of scammers who send fraudulent emails and letters posing as the U.S. government in an attempt to extract payment from Diversity Visa applicants. There is no fee to enter; fees are only required at the time of the scheduled appointment.
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
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The White House calls for streamlined immigration policies for AI workers. A temporary policy that provided longer automatic extensions of employment authorization documents has expired. And the Major League Baseball playoffs highlight a trend involving visitors from Venezuela.
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.