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U.S. Citizenship and Immigration Services is gearing up for H-1B cap season, with new organizational accounts launched today and the H-1B registration window opening next week.
Key Points:
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 as they prepare for H-1B cap registration and throughout cap season.|
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 Tuesday that certain Ukrainians and their immediate family members can apply for re-parole to extend their stay in the United States.
Additional Information: Re-parole is part of the Uniting for Ukraine humanitarian program that launched April 25, 2022. USCIS has stated that applications will be considered “on a discretionary, case-by-case basis for urgent humanitarian reasons or significant public benefit.” The agency recommends filing online versus physically mailing the forms to expedite the process and minimize error. If applicants do not have a current online account, they can create one here.
BAL Analysis: In announcing the re-parole program, USCIS stated that it recognizes the “extraordinary circumstances in Ukraine that supported the prior exercise of discretionary parole authority continue to exist.” BAL will continue to follow the administration’s response to the crisis in Ukraine and provide updates as information becomes available.
As previously announced, U.S. Citizenship and Immigration Services will increase premium processing fees on Feb. 26.
Under a rule published in December 2023, fees will increase as follows:
Additional Information: In 2020, Congress passed the USCIS Stabilization Act, setting new premium processing fees and allowing the Department of Homeland Security to adjust fees every two years. In a statement issued when the fees were announced, DHS said it is increasing fees “for all eligible forms and categories to reflect the amount of inflation from June 2021 through June 2023 according to the Consumer Price Index for All Urban Consumers.”
The new fees will apply to all premium processing requests postmarked on or after Feb. 26, 2024. Premium processing is only available for some benefits. More information is available here. The new premium processing fees are unrelated to filing-fee increases that USCIS announced on Jan. 30 and that are scheduled to take effect April 1.
The State Department’s H-1B domestic visa renewal pilot program’s final application slots open Feb. 26 for qualifying applicants.
Additional Information: Foreign nationals are reminded that they must qualify for the pilot program at the time of their visa application. A detailed FAQ covering a number of topics, including required documents and fees, processing logistics, and the proper location to select when completing the application, is available here.
BAL Analysis: Domestic visa renewal has not been widely available in the U.S. since 2004. The pilot program is an important step toward its revival. Although the pilot will be open to only a limited number of H-1B visa holders, it could be expanded to other individuals and visa categories later this year. BAL will provide additional updates as information becomes available.
Read the latest immigration news.
Earlier this month, the Department of Homeland Security published a regulation to overhaul the H-1B lottery and move to a one-beneficiary, one-selection system rather than the current employer-focused process. This change has the backing of the business community and is designed to reduce incentives for bad actors to submit multiple registrations for the same individual.
It also has the potential to reduce the overall number of H-1B registrations and improve H-1B selection rates.
Still, we expect H-1B demand to outpace supply once again this year. Under federal law, 85,000 cap-subject visas are available each year, including 20,000 set aside exclusively for advanced degree holders. In recent years, we’ve seen demand for H-1Bs skyrocket — even through a global pandemic and an uncertain economy.
As we discussed in a recent webinar, H-1B contingency planning is as important as ever. It is particularly important to have a backup plan for employees whose current work authorization will expire this year or next year, though it doesn’t hurt to begin planning even earlier.
Some of the more common H-1B alternatives include:
Every cap season has its own flavor, and we don’t always know how economic trends and regulatory changes will impact H-1B demand.
We do know the H-1B program continues to be oversubscribed. Given the low selection rate in recent years, we know many employees will be back in the lottery this year. On top of that, the H-1B registration fee is set to jump from $10 to $215 next year, providing another incentive for employers to submit registrations now.
As we said in our webinar: Plan early and often. A good H-1B contingency plan for valued employees can set you up for success this year and well into the future.
Michelle Funk is a partner and the head of BAL’s office in Tysons, Virginia. Gabriel Castro is a senior associate and head of BAL’s office in Los Angeles. Michelle and Gabriel’s recent webinar “Plan early and often: H-1B alternatives in a tight labor market,” is available on-demand here.
U.S. Citizenship and Immigration Services processed a record 10 million immigration cases last fiscal year and strengthened employment-based immigration, according to information the agency recently published.
Additional Information: Due to COVID-era funding and staffing challenges, USCIS had a steep hill to climb in restoring operations to pre-pandemic levels. In 2022, the agency set goals to shorten processing timelines, including target “cycle times” for 25 form types. By the end of FY 2023, USCIS achieved its cycle time goals for nine of those 25 forms, including naturalization, and reduced cycle times for all but one of the 25 forms.
BAL Analysis: The agency released information about its progress tackling backlogs shortly after it published a final rule to raise USCIS fees for the first time since 2016. The business community had urged USCIS to take additional steps to reduce backlogs and inefficiencies before raising fees. The agency has said it will use the additional revenue to meet processing demands and prevent future backlogs. BAL will continue to monitor the implementation of the fee increases and USCIS processing and provide updates as information becomes available.
Register for BAL’s Feb. 28 live webinar 2024 USCIS fee and H-1B rules for helpful insights that will help you plan for the fee changes, their impact on your budget and what comes next.
The U.S. State Department is urging U.S. citizens planning to travel to France for the 2024 Paris Olympic and Paralympic Games to check their passports and renew them as soon as possible if necessary.
Additional Information: The French government has launched a new Olympic consulate system to streamline the visa application process for the 2024 Olympic and Paralympic Games. While U.S. citizens generally do not need a visa to enter France, travelers can complete a short online questionnaire to determine if they require a visa.
BAL Analysis: Given the millions of people expected to travel to France for the Olympic and Paralympic Games, travelers should take care of U.S. passport needs as soon as possible to minimize any complications that could impact travel plans. BAL will continue following developments in the lead-up to the Games and will provide updates as information becomes available.
Read more U.S. immigration news.
Beginning immediately, the U.S. will defer the removal of Palestinian residents for 18 months, except for individuals who:
Additional Information: In the memorandum, Biden said the move was prompted by conditions in the Palestinian territories, primarily in Gaza, following Israel’s military response to Hamas’ Oct. 7 attack in Israel. “Humanitarian conditions in the Palestinian territories, and primarily Gaza, have significantly deteriorated,” Biden said.
BAL Analysis: U.S. Citizenship and Immigration Services said it would provide additional information about the implementation of Biden’s memorandum, including how eligible individuals may apply for DED-based employment authorization documents with the agency. BAL will continue to monitor these developments and will provide updates as they become available. Additional information on DED is available on this USCIS website.
This alert has been provided by the BAL Global Practice Group.
The Department of Labor has extended the deadline on a Request for Information on whether the agency should revise its list of Schedule A job classifications that do not require permanent labor certification.
BAL Analysis: Green cards in the EB-2 and EB-3 classifications generally require permanent labor certification, or PERM; however, PERM is not required for occupations on the Schedule A list of shortage occupations. This list has not been revised since 2004, and the DOL’s move to ask for public input is a welcome development toward modernizing the list and the process for revising it. The Request for Information is a preliminary step in the rulemaking process, and several steps must be completed before the list can be updated. BAL will continue following this matter and will provide updates as information becomes available.
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.
Many people hoped that the pace of layoffs in the United States would ease in 2024, but the results thus far have not been promising. While most attention has focused on the tech industry, troubling signs now indicate that other industries may follow. Already, several major retailers have announced significant layoffs, and a recent survey of 906 business leaders in various industries found that nearly four in 10 expect to lay off workers in 2024.
Obviously, the experience of losing a job is challenging for anyone. But for foreign nationals in the U.S. on nonimmigrant work visas, such as the H-1B, it is particularly difficult. These visas are usually sponsored by the employer who hires the employee, meaning that if the job is lost, so is the sponsorship.
While American citizens who are laid off may embark on a job search that could stretch for many months as they collect unemployment benefits, foreign nationals on work visas have it tougher. They may stay in the U.S., but to do so, U.S. Citizenship and Immigration Services requires that they generally must find a new job within 60 days to retain their nonimmigrant status. That might sound like adequate time, but for many job seekers it is actually quite short.
Generally, if these workers have not secured a new job within 60 days, they lose their nonimmigrant status and must leave the country. But there are options that could allow them to stay, even if they can’t find a new job.
These options include
It is important to point out that when foreign nationals do leave the country, that doesn’t necessarily mean their days of working in the U.S. are over. Nothing prevents them from continuing their search for an American job and a new work visa from abroad.
For foreign nationals who are laid off in the U.S. and want to stay, the “alphabet soup” of visa options might appear daunting. But solutions, whether temporary or permanent, may be possible. It is important for them to seek counsel and learn about eligibility requirements to help tailor their search.
For employers, meanwhile, it is advisable to start thinking now about the prospect of handling possible layoffs down the road and being aware that their foreign workers are likely to experience a greater negative impact when they are let go. Employers might consider assisting their laid-off foreign national employees with guidance, and perhaps access to outside counsel, if their jobs come to an end. This approach may burnish an employer’s reputation as a place that is sensitive to employees’ needs and produce long-term benefits.
For both employers and employees, planning for the future is critical. While the economy is showing positive signs, the market remains volatile.
When the stakes are so high, having a plan in place that can be implemented immediately is crucial.
Steven is a senior associate in BAL’s Dallas office. To get in touch with Steven or another BAL attorney to discuss options before, during or after layoffs, contact us here.