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This year’s H-1B electronic registration period will close at noon ET this Friday, March 17.
Key Points:
Additional Information: This will be the fourth cap season in which USCIS is using the H-1B electronic registration system. USCIS received a record 483,927 registrations last year for a total of 85,000 H-1B visas, 20,000 of which are set aside for individuals with an advanced degree from a U.S. university. High demand for H-1B visas is widely expected again this year. BAL will provide more information as it becomes available.
This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
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 Centers for Disease Control and Prevention on Friday announced the rescission of its COVID-19 testing requirement on air travelers from China.
Background: The CDC implemented the testing measures in January amid a surge in COVID-19 cases in China. The agency said Friday that COVID-19 had returned to a “baseline level” in China and that the U.S. government would “monitor travel patterns between (China) and the United States and adjust its approach as needed based on the latest science, virus variants, and the evolving state of COVID-19.”
With Oscar Night approaching this Sunday, viewers will be looking at a diverse pool of nominees, including Michelle Yeoh, a celebrated Malaysian-born actress who, if she wins, will be the first Asian woman to receive a lead actress Oscar. In fact, 12 of the 20 acting nominees this year are, like Yeoh, foreign-born. Add to that an uptick in U.S. movies shot overseas and actors traveling abroad to star in international productions, and the math is clear: from Hollywood movie studios to independent filmmakers, immigration law is pivotal to the contemporary filmmaking process. In era of backlogged visa issuance, lengthy visa wait times due to less and understaffed consulates, and complex immigration laws, the U.S. entertainment industry faces costly obstacles while navigating this tricky, post-pandemic regulatory climate.
The most typical road to Hollywood for international entertainers is the O-1 visa which requires proving they have “extraordinary ability” through a record of distinguished achievement. Actors and creatives eligible for applying for U.S. permanent residence must either remain in the U.S. throughout the adjudication process, or apply for permanent resident status via an AOS (Adjustment of Status or Green Card), that negates having to return to their home country during processing. In the interim, entertainers must obtain an Advanced Parole travel document that permits them to return from travel outside of the U.S.
However, visa approval numbers, affected by processing restrictions during the pandemic and an immigrant visa ban during the Trump administration, haven’t rebounded substantially from their early FY 2020 nadir of just over 240,500 cases. In fact, post-pandemic visa issuance is still sluggish, backlogged by hundreds of thousands at the U.S. State Department.
In tandem, visa appointment wait times, another casualty of the recent pandemic due to its temporary shuttering of some U.S. consulates and embassies, continue to be lengthy. Prior to pandemic, actors and other entertainers could strategically opt to return to their home country and apply for expedited processing of an immigrant visa at a U.S. consulate, but protracted consular wait times have all but eliminated that strategy. Consular wait times, in fact, are one of the biggest challenges for movie studios and other corporations seeking international talent today. We polled several of our own immigration stakeholders, of all sizes, and 9 out of 10 equally reported consular processing times as their number one hurdle.
And although historically it has been easier for big Hollywood studios to request and expedite visas, Advanced Parole, and Adjustment of Status/Green Card appointments for their actors and other creative talent, approval of either the request or the visa of itself is not guaranteed. Ditto for the smaller, boutique or independent studios and productions, for whom such wait times and non-issuance of visas could actually mean the difference between keeping the doors open or being able to timely pay their actors, other creatives, and staff.
Some actors and other entertainers find it challenging to even qualify for the ever-changing and murky regulatory categories that would enable them to pursue their livelihoods. For example, issuance of O-1 visas are generally weighted toward superstars in the film industry—those actors who have been substantially featured in film, tv, and more. That regulatory reality makes it difficult for aspiring international actors and other artists to reasonably consider using O-1 for entrance to the U.S. and meaningful work at the beginning of their career.
Large Hollywood studios also, unlike small or independent studios, can of course typically afford to pay for all of the above, which include legal fees and USCIS processing fees—however, the recently proposed increases in USCIS fees will substantially increase those costs and ultimately affect any company’s bottom line.
The upcoming Oscars and other entertainment award ceremonies underscore that the business of arts and entertainment is increasingly global. Filmmaking and its continued success are clearly linked to immigration processes. The U.S. should be removing immigration barriers that slow the progress of the arts and entertainment industry, an ever-lucrative sector. In addition to staffing U.S. consulates, the U.S. should review and clarify visa categories that increasingly cause studios and entertainment talent delay and address the sizeable visa backlog that is still plaguing our arts and entertainment field of dreams in FY 2023.
Gabriel Castro is a Senior Associate with BAL and leads the firm’s Sports and Entertainment Immigration Practice in Los Angeles. An experienced attorney who has worked in multiple aspects of immigration law, including business, family, and removal defense, Gabriel offers his clients both skilled legal advice and exceptional service. Gabriel works with companies of all sizes to help retain artists, entertainers, athletes, coaches, and supporting staff through both nonimmigrant and immigrant visa petitions.
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 comment period on the Department of Homeland Security’s proposal to raise U.S. Citizenship and Immigration Services fees will come to a close Monday, March 13.
BAL Analysis: The proposed fee increases would impose significant costs on employers; however, the agency may make changes to its proposal and must review the comments it receives before formulating a final rule. Higher fees will not be finalized or take effect for at least several months. For more information on the Biden administration’s regulatory priorities, find BAL’s white paper on the 2023 U.S. immigration outlook here.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of Feb. 28, the department was adjudicating applications filed in June and earlier, conducting audit reviews on applications filed in March and earlier, and reviewing appeals for reconsideration filed in July and earlier.
PWD Processing: As of Feb. 28, the National Prevailing Wage Center was processing PWD requests filed in January 2022 and earlier for H-1B OES and PERM OES cases, February 2022 and earlier for H-1B non-OES cases, and January 2022 and earlier for PERM non-OES cases. Redeterminations were being considered on appeals filed July and earlier for H-1B cases, and June and earlier for PERM cases.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing faster PWD issuances for PERM OES and non-OES cases. BAL is seeing approvals for PERM applications filed in June and earlier and is starting to see PWDs for requests filed in January and earlier for H-1B OES cases, February and earlier for H-1B non-OES cases, and August and earlier for PERM OES and non-OES cases.
U.S. Citizenship and Immigration Services has issued updated policy guidance on how it provides mobile biometrics services and collects biometrics of requestors in remote locations.
The updated guidance provides:
Additional Information: The updated USCIS Policy Manual is available here. More information regarding USCIS’ mobile biometrics services is available here and on the Preparing for Your Biometrics Appointment page.
Processing times for U.S. passports are ticking up again, according to the most recent time frames posted on the U.S. State Department website.
Additional Information: Processing times do not begin the day an application is mailed but rather when the State Department receives the application. It may take two to four weeks from the day the application is mailed for the status of the application to state “In Process.” Some applications may be further delayed because the State Department requests additional information. Applicants must respond to such requests in order for processing to resume. More information regarding the request for more information can be found here.
BAL Analysis: U.S. citizens intending to travel abroad and in need of a new passport should renew their passport as soon as possible to reduce the chances of travel delays and complications. Employers and employees should continue to consult their BAL professional before planning international travel.
U.S. Citizenship and Immigration Services announced Monday that it would expand premium processing to certain F-1 students seeking Optional Practical Training employment authorization or Science, Technology, Engineering and Mathematics OPT extensions.
Background: USCIS is taking a phased approach to expanding premium processing as part of a broader effort to reduce backlogs and provide relief to foreign nationals affected by processing delays. The agency indicated in January it would extend premium processing to F-1 students seeking OPT and STEM OPT extensions. USCIS also said it would work toward expanding premium processing in May to certain student and exchange visitors with pending Forms I-539, Application to Extend/Change Nonimmigrant Status, and in June to student and exchange visitors filing initial Forms I-539.
BAL Analysis: The most recent expansion of premium processing is welcome news, especially because a number of F-1 students may be filing for OPT or STEM OPT extensions if their registrations are not selected in this year’s H-1B lottery later this month. USCIS is expected to continue expanding premium processing in the coming months. BAL will monitor the implementation of premium processing expansions and will provide updates as information becomes available.
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 announced Thursday that it had received enough petitions to reach the H-2B visa cap for the second half of the 2023 fiscal year. The agency also announced filing dates for supplemental visas.
Additional Information: In December, the Department of Homeland Security and the Department of Labor published a temporary final rule to provide a supplemental allotment of 64,716 H-2B visas for the 2023 fiscal year. Some of these visas remain available. USCIS published filing dates for the remaining visas Thursday.
BAL Analysis: H-2B visas remain in high demand. In the three-day filing period in January, the Labor Department received applications covering nearly 143,000 worker positions for 33,000 visas that will become available April 1. Employers who filed for cap-subject visas and did not receive them are encouraged to work with BAL on other options, including the possibility of applying for visas under the supplemental cap. BAL will host a webinar March 10 at 11 a.m. CT on H-2B visas and the H-2B cap. Registration details are available here.