Search
Contact
Login
Share this article
Companies filing H-1B cap petitions for fiscal year 2023 are reminded that the 90-day filing period closes June 30.
Key Points:
Additional Information: USCIS received 483,927 registrations this year, a 56.8% increase over the 308,613 from last year. In each of the last two fiscal years, USCIS has conducted more than one lottery; however, the agency selected more registrations in the initial lottery this year and it is not clear that there will be a second lottery for FY 2023.
BAL Analysis: Companies should work with their BAL professional to ensure that their H-1B cap petitions are filed before the June 30 deadline. Employers may also wish to work with their BAL attorney to consider alternatives for registrations that were not selected in March’s lottery. BAL will continue to monitor whether USCIS will invite more registrants to submit H-1B petitions for FY 2023.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2022 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 U.S. Supreme Court dismissed an appeal by a group of states seeking to defend the Trump-era public charge rule, leaving in place a lower court ruling that they could not intervene in the case. U.S. Citizenship and Immigration Services (USCIS) will continue to enforce its pre-Trump public charge rules and pursue rulemaking to formalize longstanding policy.
BAL Analysis: The Supreme Court’s ruling maintains the status quo and means that USCIS will continue not enforcing the 2019 public charge rule. It is important to note that the Court did not weigh in on the legality of the Trump-era rule. In a concurring opinion, Chief Justice John Roberts emphasized that the Court was not ruling on the merits and the decision has no bearing on how the Court will treat any pending or future litigation on this issue. USCIS continues to conduct public charge inadmissibility determinations consistent with its 1999 Interim Field Guidance. BAL will continue to provide updates on developments relating to the public charge ground of inadmissibility.
The Department of Homeland Security (DHS) and the U.S. State Department have announced new exemptions to ensure Afghans who would otherwise be eligible for the benefit or protection they are seeking are not automatically denied.
Adjudicating officers will apply these exemptions on a case-by-case, discretionary basis. The new exemptions may apply to the following individuals:
Additional Information: Individuals will only qualify for the exemptions if they have undergone screening and vetting by the U.S. government and are determined to pose no risk to national security. A list of individuals who may be protected from certain automatic denials is available here.
BAL Analysis: BAL will continue to follow developments specifically affecting Afghan nationals and will provide updates on important immigration updates as information becomes available.
Copyright © 2022 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.
Employers and immigration advocates marked the 10th anniversary of Deferred Action for Childhood Arrivals (DACA) Wednesday by urging political leaders to take action to protect the program.
The Obama administration created DACA on June 15, 2012, shielding hundreds of thousands of “Dreamers” (immigrants who were brought to the U.S. unlawfully as children) from deportation and allowing them to apply for work authorization.
“As employers and business associations committed to a strong U.S. economy, we highly value the contributions of Dreamers in our workforces and communities and reiterate the urgent need to provide them with long-term certainty and stability in the only country they know as ‘home,’” said the National Immigration Forum in a letter to congressional leaders. The letter was signed by leading U.S. employers, business associations and immigration groups, including BAL.
Despite its broad popularity and importance to employers, DACA remains under threat. In July 2021, a federal judge in Texas ruled that the Department of Homeland Security (DHS) did not follow proper procedures when establishing the program. The Justice Department appealed the ruling, and the Fifth Circuit Court of Appeals will hear arguments in the case on July 6.
White House officials, including Vice President Kamala Harris, were scheduled to meet with a group of 20 Dreamers Wednesday to discuss DACA. The Biden administration has pledged to “preserve and fortify” DACA through the regulatory process. In September, DHS published a proposed DACA regulation that drew more than 16,000 comments last fall. DHS is expected to finalize the regulation in the coming months, though litigation challenging a final regulation is likely.
DACA proponents have long said that the only permanent solution for Dreamers is legislation. Business Roundtable CEO Joshua Bolten said in a statement Wednesday that it is “long past time to enact commonsense immigration reforms” including a “permanent legislative solution for DACA recipients, who were brought here as minors and now live in limbo under the temporary DACA program.”
The Coalition for the American Dream said it is “inexcusable” that Congress has not acted to end the “legal limbo” in which DACA recipients find themselves.
“Dreamers are critical members of our workforce, industries, and communities, and they have abided by the laws and regulations of our country where they have lived almost their entire lives,” the Coalition said. “The thousands of Americans businesses represented by the Coalition for the American Dream are proud to employ many of them and we are equally proud to have watched many Dreamers start their own businesses as they contribute greatly to the American economy.”
BAL Analysis: In the 10 years since it was created, DACA has shielded hundreds of thousands of beneficiaries from deportation and allowed them to work lawfully in the U.S. DACA recipients play a key role in the American workforce, and employers have repeatedly stressed the importance of protecting the program and providing long-term relief for Dreamers. BAL continues to monitor developments related to DACA and will provide updates as information becomes available. For more information, please visit BAL’s DACA Resource Center here.
The U.S. State Department recently published a Federal Register notice, removing the requirement that Diversity Visa entrants provide certain passport information.
Background: In February 2022, a federal district court vacated the 2019 regulation that required DV entrants to submit valid passport information on their DV entry forms. The State Department removed the regulation to comply with the court’s ruling. Before the recent court ruling, entrants who submitted inaccurate or incomplete passport information would be automatically disqualified for that year’s DV selection.
BAL Analysis: BAL will continue to monitor changes to DV requirements and DV cases and will provide updates as information becomes available.
Countries around the world continue to lift COVID-19 entry restrictions, and many employers and employees are planning travel abroad this summer. COVID-19 continues to affect travel to the U.S., however, and BAL urges employees to take precautions, consult their BAL professional and weigh key considerations when planning international travel.
Key Considerations:
BAL Analysis: While many countries are lifting COVID-19 travel restrictions, the U.S. continues to enforce a vaccine requirement for inbound nonimmigrant foreign nationals. Visa and passport services continue to be delayed. Employers and employees should continue to consult their BAL professional before planning any international travel.
The State Department announced last week that it would expand its limited immigrant visa processing at the U.S. Embassy in Havana, Cuba.
Background: In March 2022, the State Department announced that it would resume limited immigrant visa processing at the Embassy in Cuba after it had reduced its staff and services because of the unexplained health incidents termed “Havana Syndrome.” In May, the Embassy in Havana began scheduling interviews for applicants in the IR-5 category (parents of U.S. citizens). The Embassy said last week that the expansion of limited services is “part of the broader expansion of the Embassy’s functions to facilitate diplomatic and civil society engagement and to expand the provision of consular services.” More information regarding the expansion of visa processing is available on the Embassy website.
The Centers for Disease Control and Prevention (CDC) has lifted its COVID-19 testing requirement for inbound air travelers.
Background: The White House confirmed reports early Friday that the testing requirement would be lifted. The CDC posted its official announcement later that day.
BAL Analysis: While the COVID-19 testing requirement will soon be terminated, the U.S. continues to enforce vaccine requirements for most nonimmigrant foreign nationals. Other countries continue to enforce COVID-19 entry restrictions of their own and visa services remain delayed at many U.S. consulates abroad. Employers and employees should continue to consult their BAL professional before planning any international travel.
Priority-date cutoffs will advance modestly or remain the same in key employment-based categories next month, according to the Final Action Dates published in State Department’s July Visa Bulletin.
Final Action Dates: Key Movements
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: U.S. Citizenship and Immigration Services (USCIS) confirmed Friday it would use the Final Action Dates chart to determine employment-based filing eligibility in July. The Dates for Filing chart will not apply.
Leading tech companies and immigration organizations are urging the Biden administration to take steps to protect the children of nonimmigrant visa holders who “age out” of their status while their parents wait for green cards to be processed.
In a letter to Homeland Security Secretary Alejandro Mayorkas, the group said said that current policies put more than 200,000 at risk of “falling through the cracks of the immigration system.”
“After spending years in the U.S., (children of nonimmigrant visa holders) risk losing the ability to stay in the U.S. once they turn 21,” the letter said. “This uncertainty harms families and prevents our companies from attracting and retaining critical talent in the U.S.”
The group said:
The Washington Post quoted a statement from a Department of Homeland Security (DHS) spokesperson saying Mayorkas “supports bipartisan legislation that offers a permanent pathway to citizenship for documented Dreamers” and that DHS is working to “maximize the number of employment-based green cards” issued this year.
BAL Analysis: The letter highlights a significant problem that limits immigration pathways for children of high-skilled immigrants and makes the recruitment and retention of high-skilled foreign nationals more difficult for employers. While proposals to offer protection to “documented Dreamers” have gained some bipartisan support, Congress has yet to take action on the issue. BAL will continue to follow the issue and will provide updates as developments occur.