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U.S. Citizenship and Immigration Services revised Form N-400 to provide a third gender option, “X.”
Key Points:
Additional Information: Form N-400, the naturalization certificate, is the only USCIS form offering the X gender option at this time. Individuals must wait until USCIS revises all other forms to include the X gender option. Once additional forms are updated with the X gender option, benefit requestors can follow these instructions to select the X gender option. The U.S. began accepting applications for gender-neutral passports in April 2022.
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.
It’s that time of year again for employers planning to secure nonimmigrant talent.
U.S. Citizenship and Immigration Services conducted the H-1B lottery last week to determine which registrations will be eligible to file petitions. Although the data on this year’s lottery selection rates is not yet available, the good news is that the current trend in low H-1B denial rates means a high probability of approval for those who have been selected. This hasn’t always been the case.
Despite significant improvements in recent years, H-1B denial rates have fluctuated wildly under the different administrations. From 2013 to 2015, during the Obama administration, the H-1B denial rates for initial employment were 7%, 8% and 6%, according to analysis of USCIS data by the National Foundation for American Policy. They rose substantially to 10% in 2016, the first year of the Trump administration.
With that administration’s more restrictive policies — including the “Buy American and Hire America Executive Order” of 2017 and the “Recission of the December 22, 2000 Guidance memo on H-1B computer-related positions,” which instructed adjudicators to deny petitions for many occupations interpreted as not requiring a bachelor’s degree — denial rates surged from prior years, peaking at 24% in 2018.
Source: National Foundation for American Policy
During the last year of the Trump administration, denial rates dropped to 13% in 2020 due in part to adverse judicial rulings. Denial rates continued to drop under the Biden administration, hitting their lowest point in 2022.
There was a slight bump in denial rates from fiscal year 2022 (2.2%) to fiscal year 2023 (3.5%), the NFAP analysis showed. The NFAP reported that about 200 medium-sized businesses accounted for two-thirds of these denials, possibly because smaller and medium-sized companies may not have expert counsel or structured immigration programs that can help ensure the right legal requirements are met. For larger companies — which typically utilize dedicated immigration counsel — denial rates are nearer to zero percent. This low denial rate trend is not likely to reverse itself for the remainder of 2024.
Whether the trend will continue beyond that is up in the air. After all, this is an election year. Under a Biden administration, denial rates could hover near the current status quo. However, a Trump administration could be less predictable and return to more restrictive policies.
The decline in H-1B denials has brought predictability that didn’t exist for employers just a few years ago. For larger employers who utilize immigration counsel, the H-1B denial rate is near zero, compared to nearly 25% in 2018.
This year’s changes to the H-1B selection process do add a bit of unpredictability because beneficiaries selected in the lottery will get to choose among employers if more than one employer submitted a registration on their behalf.
And in the broader picture, the overwhelming demand for a limited supply of H-1B cap-subject visas (just 85,000 per year) still makes planning a challenge. The new selection process may eventually lead to an improved lottery selection rate; however, legislative action is needed to address the perpetual H-1B visa shortfall.
U.S. Citizenship and Immigration Services has opened the 90-day filing period for petitioners whose registrations were selected in this year’s H-1B lottery.
Additional Information: Under an H-1B rule published in February, USCIS switched to a beneficiary-centric lottery this year, meaning each beneficiary could be selected only once, regardless of how many registrations were submitted on their behalf. While this change may lead to a higher selection rate, USCIS has not yet provided information on how many registrations were submitted or selected this year. Employers are encouraged to work with their BAL attorney to explore H-1B alternatives for job candidates whose registrations were not selected in the lottery.
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 has begun sending H-1B cap selection notices to myUSCIS accounts and will continue doing so over the next few days, the agency said Thursday.
Background: Under a recently published regulation, the agency switched to a beneficiary-centric lottery this year, meaning each beneficiary can be selected only once, regardless of how many registrations were submitted on their behalf. While this change may lead to a higher selection rate, USCIS has not yet provided information on how many registrations were submitted or selected this year. BAL will provide updates as information becomes available.
A federal judge denied a motion to halt the implementation of U.S. Citizenship and Immigration Services fee increases Friday. This means the fee increases will take effect as scheduled on Monday, April 1.
Background: Under the fee rule, base immigration filing fees will increase significantly and a new asylum program fee will be charged for each Form I-129 and Form I-140 filing. The rule also changes premium processing time frames and requires applicants and petitioners to use new forms in many cases. More information is available here.
BAL Analysis: Litigation over the fee rule is expected to continue, but the judge’s ruling Friday means that the fee hikes will take effect April 1. Employers will see costs increase substantially, including for fiscal year 2025 H-1B cap petition filings. Companies can use BAL’s USCIS fee calculator to gauge the impact the increases will have on their immigration programs. BAL will provide additional information as it becomes available.
A regulation that will increase U.S. Citizenship and Immigration Services filing fees, change premium processing time frames and require petitioners to use new versions of commonly used forms is set to take effect Monday, April 1.
BAL Analysis: The fee regulation will substantially increase costs and change filing procedures for employers. The change to premium processing time frames will prolong adjudications in some cases. While litigants are hoping to halt the fee rule, it is still set to take effect on April 1. BAL will provide additional information as it becomes available.
BAL has shared several resources related to the fee rule, including a USCIS fee calculator and analysis of how the increases will affect small- and medium-sized companies. The BAL Government Strategies team provided detailed information on the fee rule and changes to the H-1B program in a webinar last month. The webinar is available on-demand here.
The Department of Homeland Security has announced the extension and redesignation of Myanmar for Temporary Protected Status for 18 months, from May 26, 2024, to Nov. 25, 2025.
Additional Information: In announcing the extension/redesignation Friday, DHS cited “extraordinary and temporary conditions … that prevent individuals from safely returning” to Myanmar, which is also known as Burma. DHS specifically mentioned “widespread violence” resulting from a 2021 military coup as wells as “challenges in the provision of food, access to health care, and economic stability.” The full announcement is available here.
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 Thursday that it would extend the H-1B cap registration period to Monday.
BAL Analysis: The extended registration deadline will provide more time to those affected by technical problems to complete registration. BAL encourages employers to work closely with their BAL team during H-1B registration and throughout cap season.
Groups representing employers and visa applicants sued the Department of Homeland Security Tuesday, aiming to stop dramatic increases to immigration filing fees from taking effect.
BAL Analysis: While the lawsuit hopes to halt the implementation of the fee increases, employers at this time should still plan for the new fee rates to take effect April 1. BAL will continue following the litigation and will provide updates as information becomes available.
In a recent survey, a majority of employers told BAL they will not adjust how many petitions they will file but are interested in exploring alternatives. BAL has shared several resources related to the fee rule, including a USCIS fee calculator, analysis of how the increases will affect companies and a webinar on the recently published fee and H-1B selection rules.
Employers are reminded that registration for H-1B cap petitions for fiscal year 2025 closes this Friday.
Additional Information: Following the registration period, USCIS will conduct a lottery to determine which registrations will be eligible for H-1B petition filing beginning April 1. Under a recently published regulation, the agency will switch to a beneficiary-centric lottery this year, meaning each beneficiary can be selected only once, regardless of how many registrations were submitted on his or her behalf. BAL urges employers to work closely with their BAL team during H-1B registration and throughout cap season.