Episode 66: Immigration Bracketology with BAL’s Sports & Immigration Team

It’s March 21, and this is your BAL Immigration Report.

• A lawsuit aims to stop U.S. Citizenship and Immigration Services fee hikes.
• State Department data shows a continued increase in green card issuance.
• With March Madness about to tip off, the BAL sports and entertainment team creates a tournament bracket of their own.

“March Madness is all about the Cinderella story, the thing that you never think would be possible.”

—Gabriel Castro, Senior Associate

U.S. news

DHS sued over fee hikes

Groups representing employers and visa applicants sued the Department of Homeland Security Tuesday, aiming to prevent dramatic increases to immigration filing fees from taking effect. DHS published a final rule on Jan. 31 that substantially increased most U.S. Citizenship and Immigration Services filing fees. It is the first USCIS fee increase since 2016.

The case’s plaintiffs allege that the government did not follow proper steps in drafting the fee rule. They asked a federal court in Colorado to halt implementation of the fees while litigation plays out. At this time, the fee increases are still scheduled to take effect April 1.

FY2023 immigrant visa rate rises

Immigrant visa issuance continued to climb in fiscal year 2023, surpassing pre-pandemic totals. That’s according to the State Department’s Report of the Visa Office 2023. The State Department issued a total of nearly 563,000 immigrant visas last fiscal year, up more than 14% from 2022’s total.

Visa issuance plummeted during the COVID-19 pandemic but has rebounded in each of the last two fiscal years. The State Department previously announced it had issued a near-record 10.4 million nonimmigrant visas in fiscal year 2023.

U.S. news roundup

• H-1B cap registration closes tomorrow, March 22.
• The Department of Labor posted updated H-2A and H-2B processing times.
• DHS announced a pilot program to use AI to train immigration officers, saying it would “help enhance officer’s understanding and retention of crucial information, increase the accuracy of their decisions and limit the need for retraining.”

Spotlight

Conversation with Gabriel Castro, BAL senior associate, and Tiffany Derentz, senior counsel: immigration bracketology.

BAL Immigration Report: March Madness is here. The first round of the men’s NCAA basketball tournament tips off today, and the women’s tournament starts tomorrow. The No. 1 seeds in the men’s brackets are UConn, North Carolina, Houston and Purdue. On the women’s side, it’s South Carolina, Texas, Iowa and USC.

Here at BAL, we decided to get in on the action by asking our sports and entertainment practice to survey the field of immigration law and come up with four No. 1 seeds of their own. Specifically, we asked Senior Associate Gabriel Castro, an alumnus of the University of Alabama, and Senior Counsel Tiffany Derentz, a University of Texas graduate, to identify the top four changes that could be made to improve the immigration process in the United States. Here’s their conversation.

Castro: It is March Madness season, and you know what that means, Tiffany — it means it’s time to make your bracket. Here at BAL, we are a little bit nerdier than the normal sports fans in that we’re going to make a bracket of the top four things that we would like to see change in immigration policy. Tiffany, you’re obviously a big expert on all of this. What something that you want to see change among immigration?

Derentz: So this is a tough one because what we really need is immigration reform, but I think there are a lot of things that could be done and even some things in the pipeline. One thing that’s been a little bit under the radar but would have a really big impact on immigration processing is digital visa issuance. This is something the State Department’s been piloting, but on a very small scale, so I don’t think a lot of people actually really know about.

Castro: What would that even mean, a digital visa?

Derentz: Digital visa would mean that you don’t have the visa in your passport anymore. It would be a digital travel document. And one thing that is kind of cool about that is that it has a lot of downstream effects, that it cuts down on processing times because it eliminates the need to actually print and place that visa in people’s passports. Applicants don’t have to keep their passport at the embassy or consulate. CBP wouldn’t even be asking for it at the point of entry.
It really eliminates a lot of processing steps that happen on the back end that wouldn’t be needed anymore. And there’s also things like fraud — there’s a defense against fraud, and also you eliminate the possibility of your visa getting damaged or perhaps lost or stolen if it’s not physically in your passport.

Castro: Okay, yeah, that’s really nice. I’ve had multiple clients come to me with lost passports, lost visas, and it’s a mess trying to get them back into the country. So that’s a really good one. Something that’s on my radar that I’d really love to see is the adjustment of status process that right now, unless you’re on H or L status, you cannot travel until your advanced parole is approved while your case is pending. I’ve always found this rule so arbitrary and never really understood why are they enforcing that about the adjustment of status. And I think changing that policy to allow all applicants adjustment of status as long as they have a visa to return, as long as they have other ways to enter the United States, I don’t see the harm in allowing them to travel while the case is pending, especially for employment-based categories. So I think my choice would be travel while your AOS is pending.

Derentz: That’s a really good one because that has a lot of impact. It prevents some people from traveling for up to a couple of years while that’s processing and oftentimes leads to additional applications on USCIS’ side to try to get that advanced parole or the other travel documents so that they can travel abroad.

Castro: So we have digital visas, we have travel while your adjustment is pending. Tiffany, what else what else do you think makes our top four?

Derentz: So I think I would stick on the State Department theme on my side, and I would say another thing would be administrative processing. This is something that is just a really big challenge — one, for applicants to understand, but it has a lot of impacts on people when it takes a long time. Last year, the Visa Office did make improvements to the process for nonimmigrant temporary travelers. Overall, we’ve seen some of that improvement, but we haven’t seen this come out on the immigrant visa side, and we’re still seeing a lot of applicants get stuck in the process, often for months and months at a time.

Castro: Yeah, that’s truly important. Administrative processing is just an incredibly frustrating part of the visa process. That’s a wonderful idea for a change. The last thing I was thinking on my top four — or in our top four — is sort of arbitrary extension, automatic extension limit, whether it’s either an EAD or extension of status, where it’s, like, 240 days after the case is filed, your case can be extended until your extension is approved, but why limit it if it’s pending for so long and USCIS is not moving on these applications? That’s on USCIS. The applicant shouldn’t be punished because USCIS can’t approve the case within a certain limit. I don’t think it makes sense. Why not just have it continue to depend on, continue having that person in working status until the case is approved?

Derentz: That’s another good one, and I feel like we can probably have this conversation all day long. But if we limit it to our top four, I think those are pretty good ones.

Castro: I think so too. But this is the NCAA tournament, or the BAL tournament, let’s say, so we have to have a No. 1 seed. What out of these four, what’s your No. 1 change you want to see?

Derentz: For me, it would be digital visas just because this would, if it is rolled out more broadly, it could be every single visa that is issued from the date that the program’s rolled out. And there’s just so much that the Department of State would be able to do with technology to really improve the overall experience for visa holders.

Castro: You know, I at first, I was going to say my adjustment of status plan. I’m still very passionate about that. But I think you’ve got you convinced me with it’ll prevent lost visas from counting against people. People would still have that visa. They don’t have to have it in their passport. I think not having to pick it up and drop off your passport at the consulate really saves a lot of headache. I think this would solve a lot of problems. So that’s our unanimous No. 1 seed for the BAL immigration policy change tournament. It’s digital visas. Let’s hope we can see that in the future.

Now, of course, we picked four things that we actually see as realistic possibilities of policy changes in the future or things that wouldn’t take that much. But NCAA tournament, March Madness, is all about the Cinderella story, the thing that you never think would be possible. What is your dark horse immigration policy change that you’d like to see too?

Derentz: I went back and forth on this in my head, but I think my dark horse would be a policy change that allows for all employment-based visas to be issued to the employees and that dependents are not counted against the cap. That’s something that many have argued is an area where the government has cheated legal immigrants, but it’s been in place for decades. And what it means is that far less workers can be issued these visas because their spouses and dependent children are counting against that cap. So you have maybe half or even less that are actually going to the workers. And the U.S. is a place that needs those workers. So I think that that would be my dark horse, something that, is it likely to change after all these decades? I don’t know, but it would be a really big improvement for employment-based visas.

Castro: I’d love that. I think you’d start seeing so many more visas open and getting approved every year. I think that would be a great, great change. I have my own dark horse. I really like the idea, and I think it’s something that is not seen as much on the hill, is that you could use immigration policy as a tool for solving other problems in the in the country. This was part of Biden’s campaign platform, and I remember reading it in a book by Matthew Yglesias a few years ago, but the idea is basically to provide H-1B cap exemptions that municipalities could sign up for.

So if you were someplace in the Midwest where you’re seeing your population decline and you’re wanting to bring in new business and you want to bring in tech companies that, right now, when those employees aren’t selected in the cap lottery, they end up in working in Canada. Instead, why don’t we — instead of near-shoring — bring them to an American city that could really use that help? Why don’t we encourage the big tech conglomerates in Silicon Valley to start opening offices in Cleveland and Detroit, in these places where we could bring in new businesses? I don’t think this is the only area where you could use cap exemptions to create policy improvements in the U.S., but it’s great way and great start to start using H-1B to our advantage.

Derentz: That’s a really interesting idea. I really like that a lot.

Castro: Again, my dark horse, I don’t think we’re going to be seeing that anytime soon. I think it would have to come in the form of part of a larger comprehensive immigration reform. But it’s wishful thinking, and I’m glad we’re doing this exercise, I’m glad we’re getting it out there. Hopefully, the audience at home is enjoying this and learning something as well. Thank you, Tiffany. I’m really excited for March Madness. Roll Tide! You have something to say, Tiffany?

Derentz: Hook ’em!

Castro: Thank you, guys. Back to the podcast.

Global news

U.K. enacts immigration changes

In the United Kingdom, the government published a Statement of Changes in Immigration Rules, putting in motion a previously announced plan to restrict employment-based immigration.

Among other changes, the U.K. will increase minimum salary requirements for skilled workers, eliminate and replace the current Shortage Occupation List and bar visa holders in certain healthcare jobs from bringing family to the U.K. The plan was announced in December as part of an effort to reduce net migration and prioritize the domestic workforce.

EU drafts visa-free travel suspension regulation

European Union member state ambassadors agreed on a draft regulation allowing the EU to suspend visa-free travel for countries whose citizens are exempt from Schengen area visa obligations.

The measure would add new grounds for the EU to suspend its visa-free regime. These grounds can apply to countries whose visa rules don’t align with the EU’s, those offering investor citizenship schemes, when there are hybrid threats and deficiencies in document security legislation or procedures, or if relations with the country deteriorates, especially in regard to human rights and basic freedoms.

The regulation aims to strengthen the EU’s powers when visa-free travel is being misused or works against the EU’s interests.

Global news roundup

• Taiwan announced changes to its alien residence card application process.
• New Zealand introduced a new Ukraine Resident Visa.
• China and Brazil signed an agreement to provide nationals of each other’s countries with 10-year visas.

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