On Monday, President Biden issued a comprehensive executive order addressing artificial intelligence and calling for more high-skilled immigration in AI and other critical and emerging technologies.

Specifically, the executive order directs the relevant government agencies to “take appropriate steps” to:

  • Streamline visa processing for non-U.S. citizens seeking to come to the United States to work on, study or conduct research in AI or other critical and emerging technologies.
  • Facilitate the availability of visa appointments for applicants with expertise in AI or other critical and emerging technologies.
  • Consider new regulations on the Exchange Visitor Skills Lists related to the two-year foreign residence requirement for certain J-1 nonimmigrants.
  • Consider implementing a domestic visa renewal program for qualified applicants, including highly skilled talent in AI and critical and emerging technologies.
  • Consider expanding the domestic visa renewal program to include academic J-1 research scholars and F-1 students in science, technology, engineering and mathematics.
  • Establish a program to bring top AI talent to the U.S., to the extent permitted by law and under current appropriations.
  • Review and initiate policy changes to immigration pathways (e.g., O-1A, EB-1, EB-2 and International Entrepreneur Rule) for experts in AI and critical and emerging technologies.
  • Consider publishing updates to the 2009 Revised Exchange Visitor Skills List.
  • Continue the regulatory effort to modernize the H-1B program.
  • Consider initiating rule-making to enhance the process for noncitizens to adjust their status to lawful permanent resident.
  • Consider updates to the “Schedule A” list of occupations by publishing a request for information (RFI) to solicit public input identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there are an insufficient number of ready, willing, able and qualified U.S. workers.

‌Additional Information: Following the release of the executive order, DHS issued a fact sheet on how it will proceed. The full text of the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence can be found on the White House website here.

‌BAL Analysis: President Biden’s inclusion of immigration measures in the executive order shows that the administration considers attracting and retaining high-skilled foreign workers a key to remaining competitive in AI and other emerging technologies. Work on of some of the measures — e.g., the DHS effort to modernize the H-1B program and the State Department’s push to pilot domestic visa renewal — is already underway. Others would require government agencies to initiate rulemaking, a process that can take months or even years. BAL will continue following the Biden administration’s policies on high-skilled immigration 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 updated Form I-9 that U.S. Citizenship and Immigration Services released in August will become mandatory on Nov. 1.

Key Points:

  • USCIS published a streamlined and shorter new Form I-9 version on Aug. 1.
  • While employers had the option of using the new version after Aug. 1, it will become mandatory Nov. 1.
  • The changes in the new Form I-9 are summarized here.

BAL Analysis: The new version of the Form I-9 is available on the USCIS website. Human resources personnel should make sure their companies have transitioned to the new version, as it will be the only valid version of the Form I-9 starting Nov. 1.

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.

Israeli nationals are now eligible for visa-free travel to the United States. Europe officially postpones its travel authorization program. And U.S. Citizenship and Immigration Services proposes big changes to the H-1B lottery.

‌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 US 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.

A temporary policy aimed at easing case backlogs by providing longer automatic extensions of some workers’ employment authorization documents will expire today, Oct. 26.

‌Key Points:

‌

  • A Temporary Final Rule, published by U.S. Citizenship and Immigration Services in May 2022, increased the automatic employment authorization extension for certain renewal applicants to 540 days.
  • Immigration groups had advocated for the temporary rule to be extended beyond today, but USCIS decided to let it lapse.

Additional Information: As BAL reported in August, applicants who filed for extensions of employment authorization in certain classifications on or before today are still eligible for extensions of up to 540 days. Those who file after today will be eligible for automatic extensions of up to 180 days.

‌This alert has been provided by the BAL Global 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.

Companies that are filing H-1B cap-subject petitions from the second H-1B registration lottery for fiscal year 2024 are reminded that the 90-day filing period closes Oct. 31.

Key Points:

  • Petitioners who have not yet filed a petition for candidates who were selected in the second H-1B registration lottery for FY2024 must do so by Oct. 31 for the petition to be considered.
  • Only petitioners with registrations that were selected in the second lottery may file cap-subject petitions for the beneficiary named in the selected registration notice.
  • U.S. Citizenship and Immigration Services conducted the second lottery in late July, selecting an additional 77,609 registrations.

Additional Information: With the additional selections in the second lottery, this year’s overall H-1B cap selection rate rose to 24.8%, which is roughly on par with last year’s 26.9%, even with the surge in registrations this year. Last week, USCIS posted a proposed regulation to “modernize” the H-1B program, including the lottery. The proposed changes may impact FY2025 registration but do not affect FY2024 filing.

‌BAL Analysis: Companies should work with their BAL professional to ensure that their H-1B cap petitions are filed before the Oct. 31 deadline. USCIS has not indicated whether it will conduct a third lottery and accept additional cap-subject petitions. BAL will provide information as it becomes available.

This alert has been provided by the BAL US 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 on Friday posted a proposed regulation to “modernize” the H-1B visa program.

‌The proposed rule would have broad consequences for H-1B oversight and requirements; however, it is still in the early stages of rulemaking. Once the proposal is published, the government will accept public comments for 60 days and will review the comments before publishing a final rule. It is not yet clear whether the rule will be in place in time for FY2025 H-1B cap registration.

USCIS said the proposed rule was crafted to (1) modernize H-1B requirements and improve efficiency, (2) provide greater benefits and flexibilities for petitioners and beneficiaries and (3) improve integrity measures.

  • Modernization and Efficiencies: USCIS proposes to streamline H-1B requirements by revising the criteria for a “specialty occupation,” including clarifying that a position may allow a range of degrees, but there must be a direct relationship between the required degree field or fields and the duties of the position. The agency also proposes to clarify when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment. The agency also proposes to codify its policy that if there has been no material change in the underlying facts, adjudicators generally should defer to prior determinations involving the same party.
  • Benefits and Flexibilities: USCIS proposes to update its rules to allow for more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization. It also proposes to address “cap-gap issues” by extending F-1 status and related work authorization to April 1 of the relevant fiscal year rather than Oct. 1.
  • Program Integrity: USCIS proposes to address H-1B cap registration “abuse” by changing the way the agency selects registrations. Under the proposal, USCIS would select registrants by unique beneficiary rather than registration. This means that each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf. Last year, more than half of H-1B registrations were for beneficiaries with more than one registration. The agency also proposes other measures to enhance program integrity, including requiring petitioners to establish they have an actual, non-speculative position in a specialty occupation available for the beneficiary as of the requested start date.

Additional Information: The 227-page rule is expected to be published in the Federal Register on Monday, Oct. 23. A pre-publication version was posted Friday and is available here.

BAL Analysis: The proposed rule would have significant impacts to the H-1B visa program, but it is not clear if the new provisions or a proposed increase to the H-1B registration fee will be in effect in time for the upcoming cap season registration. USCIS indicated it may seek to finalize provisions related to cap registrations separately from other provisions in the proposal to have those in place for the upcoming cap season. BAL will continue to review the proposed regulation and will provide updates as it moves through the regulatory process. BAL will host a webinar on the proposed changes to the H-1B program. Details will be available soon.

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 Department of Homeland Security announced Thursday that visa-free travel for Israeli nationals has begun.

‌‌Key Points:

  • In September, the United States designated Israel into the U.S. Visa Waiver Program, which allows eligible travelers to apply online for authorization to travel to the United States through the Electronic System for Travel Authorization.
  • These authorizations allow successful applicants to travel to the United States for tourism or business purposes for up to 90 days without first obtaining a U.S. visa.
  • Israeli travelers with a valid B-1 or B-2 visa may continue to use their visa for business and tourist travel to the United States.
  • Individuals may apply for travel authorization on the ESTA website. ESTA registration is generally valid for two years or upon expiration of the traveler’s passport, whichever occurs first.

Additional Information: Israel worked for years to obtain entry into the U.S. VWP. The U.S. Department of Homeland Security said Israel “put forth a significant whole-of-government effort to meet all program requirements, including passing multiple new laws, establishing information sharing systems, and implementing new entry procedures for all U.S. citizens.” Israel will be the 41st member of the VWP.

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.

A proposal to modify the H-1B and F-1 visa programs clears White House review. The U.S. halts visa services in Israel. And an interview with BAL CEO Jeremy Fudge.

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.

The State Department has submitted a Federal Register notice on a planned H-1B domestic visa renewal pilot to the White House Office of Management and Budget (OMB).

‌Key Points:

  • The notice is currently under review by OMB.
  • Details of the notice, including eligibility requirements for the limited H-1B pilot, are not yet publicly available.
  • Once OMB has completed its review, the State Department can publish the notice in the Federal Register.

‌Additional Information: Domestic visa renewals have not been broadly available since 2004. The State Department announced plans for a domestic renewal pilot in February.

BAL Analysis: The pilot is a significant step towards bringing back a domestic visa renewal program. While details are not available yet, the pilot is expected to apply to a limited number of H-1B visa holders before being reviewed and potentially expanded to a larger program in the future. Eligibility criteria, scope and duration of the pilot will not be known until the notice is cleared and published in the Federal Register. BAL will continue following the matter and will provide information once it 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.

A proposed regulation to “modernize” requirements and oversight in the H-1B visa program and provide additional flexibility in the F-1 student visa program has cleared review at the White House Office of Management and Budget.

  • The text of the proposed rule is not yet available, but OMB review is the last step in the regulatory process before publication.
  • According to the Department of Homeland Security, the proposed rule will:
    • Revise regulations related to the employer-employee relationship.
    • Implement new guidelines for site visits.
    • Provide flexibility on employees’ start dates in limited circumstances.
    • Address “cap-gap” issues.
    • Strengthen the registration process to reduce the possibility of misuse and fraud.
    • Clarify the requirement that an amended or new petition be filed if there are material changes.

BAL Analysis: The proposal could have broad consequences for the H-1B and F-1 visa programs; however, the text of the proposed rule has not yet been published. The proposal is expected to go through a 60-day notice-and-comment period before it is updated and published as a final rule, which will likely have a delayed effective date. It is not clear at this time whether the rule will be in place for the FY2025 cap registration season. BAL will provide additional 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.