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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.
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.
The United States has halted immigrant and nonimmigrant visa services in Israel amid ongoing security concerns.
Key Points:
BAL Analysis: Visa services are not available in Israel at this time. The situation continues to evolve and travel rules and procedures may change with little or no notice. U.S. citizens in Israel are encouraged to monitor State Department websites for updates. Employers looking to move employees out of Israel can contact BAL at GCITeam@bal.com for information about the options available to them. BAL will continue following the situation and will provide updates as information becomes available.
Passport wait times begin to improve. Domestic Visa Renewal could be a game-changer but will take time and resources. And a look at the impact artificial intelligence may have on immigration law.
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.
The U.S. Department of Labor has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of Sept. 30, the department was adjudicating applications filed in November 2022 and earlier and conducting audit reviews on applications filed in July 2022.
Average Number of Days to Process PERM Applications:
PWD Processing: As of Sept. 30, the National Prevailing Wage Center was processing PWD requests filed in March and earlier for H-1B OEWS cases and February and earlier for PERM OEWS cases. Redeterminations were being considered on appeals filed in March and earlier for H-1B cases and PERM cases. Center Director Reviews were being conducted for H-1B and PERM cases filed in June and earlier. For more information, visit this Department of Labor website.
Following months of delays, U.S. passport wait times are starting to improve.
Key Points:
Additional Information: The State Department attributed the improved times to aggressive recruiting and hiring at passport agencies, workers putting in tens of thousands of overtime hours each month and the opening of a new satellite office. Recent demand is the highest in U.S. history, with more than 24 million passport books and cards issued in the past year.
BAL Analysis: The change in passport wait times is good news; however, the improvement may prove temporary. Requests for passports tend to increase ahead of holiday travel and applicants should expect delays and plan accordingly.
Hamas militants launched a surprise attack on Israel over the weekend, prompting a declaration of war by Israeli Prime Minister Benjamin Netanyahu. Fighting is expected to continue. The U.S. Embassy in Israel stated, “The situation in Israel remains dynamic; mortar and rocket fire may take place without warning.”
Key Points:
BAL Analysis: The situation in Israel continues to evolve and travel rules and procedures may change with little or no notice. U.S. citizens are encouraged to monitor State Department websites for updates. Employers looking to move employees out of Israel can contact BAL at GCITeam@bal.com for information about the options available to them. BAL will continue following the situation and will provide updates as information becomes available.
The State Department released the November Visa Bulletin Monday, 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.
Dates for Filing for Employment-Based Preference Cases:
BAL Analysis: The lack of movement follows advancement across key categories in the October Visa Bulletin, the first of the 2024 fiscal year. USCIS has said that while it has “issued an unprecedented number of employment-based green cards” in the previous two fiscal years, the numerical limits for fiscal year 2024 will not be as high. 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.” BAL will continue to provide updates on the Visa Bulletin 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.
When news broke earlier this year that the U.S. State Department was planning a pilot program to bring back domestic visa renewals, employers were understandably enthusiastic. After all, companies and immigration groups have advocated for this change for years—and the benefits would be significant.
A domestic visa renewal program would mean that, for the first time in nearly two decades, eligible nonimmigrant visa holders would be able to renew their visas in the United States without having to travel abroad to an embassy or consulate. This would give foreign workers greater certainty in work and travel. They would no longer have to worry about being stranded abroad for weeks or months at a time waiting for a visa renewal, and companies would have more confidence that key personnel would be able to continue working on projects in the United States. Hasty arrangements for employee transfers to international offices or remote work could finally be in the past.
Domestic visa renewal would also relieve some of the visa processing demands on embassies and consulates, potentially reducing backlogs and wait times across all visa categories, including B-1/B-2 business and tourist visas.
But while the pilot holds promise, there are reasons to temper expectations—at least for now.
The pilot would be just that—a pilot. It would likely apply to a limited number of H-1B renewal applicants and would run for a set period. The State Department would then assess the pilot and decide if and how to expand it into a permanent program. Scaling up domestic processing to cover more nonimmigrant visa categories and nationalities would be an immense challenge.
After all, it’s been two decades since domestic visa renewal was broadly available in the United States. Regulations dating back to 1987, when the State Department’s Visa Office reorganized its visa rules, allowed for domestic visa renewal for E, H, I and L visa holders. O and P visa classes were added later.
A set of post-9/11 reforms proved challenging for the State Department to comply with, however. Specifically, statutorily imposed in-person interview and fingerprint requirements made it impossible for the State Department to renew most visas in the United States because it did not have adequate facilities for these mandates. Currently, the only visas issued in the United States are for foreign government officials, staff of designated international organizations and North Atlantic Treaty Organization personnel (i.e., certain A, G and NATO visas). These visa classes are distinct from other visa categories and do not require interviews or fingerprints.
Even as domestic visa renewal ceased, the regulations that allowed for it were never taken off the books, which means the State Department has the green light to explore domestic visa renewal as an option. The State Department’s Visa Office has been preparing for the launch of the domestic renewal pilot by working through an array of logistical, operational and legal challenges.
The good news is in-person interview and fingerprint requirements won’t be deal-breakers like they were in 2004. The State Department has the authority under existing law to waive interviews for certain applicants renewing the same visa classification. And while the Department does not have fingerprints on file for all applicants (in particular, those who applied for a visa when they were under 14 or those who were issued a COVID-19-related interview waiver for an H-1, H-3, H-4, L, O or P visa and had not previously provided fingerprints), most renewal applicants already had their fingerprints taken at the time of their initial application.
Other hurdles may be more difficult to overcome. Because the Visa Office has not permitted domestic visa renewals in nearly 20 years, no office or team is in place to take on the work. Early indications are that domestic visa renewals under the pilot may be handled by existing remote processing teams, but the Visa Office would need to staff up in the long run.
Not only would the Department have to hire and train personnel to adjudicate renewals, but it would also have to find and set up office space to house new teams. The space would have to meet strict security protocols, and access would be limited to those who have the proper clearance. Payment and document delivery would also need to be established—something the Visa Office is certainly looking into in advance of the pilot launch.
Despite these challenges, the pilot is a step in the right direction. The COVID-19 pandemic foregrounded the problems with requiring visa holders to apply for renewals abroad. The State Department deserves some credit for finding creative solutions during these unprecedented times, including its use of broader interview waiver authorities, expansive use of remote processing capabilities and favorable policy changes relating to third-country nationals to handle the visa backlog. Domestic visa renewal would be a more fundamental and longer-term fix to ongoing workload and logistical challenges, but employers will have to be patient as the effort gets off the ground.
The Department of Homeland Security announced the extension and redesignation of Cameroon for Temporary Protected Status for 18 months, from Dec. 8, 2023, to June 7, 2025.
Additional Information: In addition to the TPS announcement, DHS provided a Special Student Relief notice for F-1 nonimmigrant students from Cameroon, which allows them to request employment authorization, work more hours while in school and have a reduced course load through the TPS designation period. DHS estimates the TPS extension will cover about 2,900 current beneficiaries, while the redesignation will make roughly an additional 7,900 Cameroonians eligible for TPS.
This alert has been provided by the BAL Global Practice group.
The government is open—for now. The Supreme Court declines to hear a case challenging Optional Practical Training. And employers turn an eye toward the upcoming H-1B cap season.