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It’s May 4, and this is your BAL Immigration Report.
“One option to address the concerns that USCIS has raised would be to allow only one registration per beneficiary.”
—Steve Plastrik, BAL Senior Associate
The Biden administration announced that it would end COVID-19 vaccination requirements for inbound international travelers. Beginning May 12, the United States will no longer require nonimmigrant foreign nationals to be vaccinated against COVID-19 to enter the country by land, sea or air. Until that date, these travelers must continue to show proof that they are fully vaccinated unless they are eligible for an exemption. The termination of the vaccination requirement coincides with the end of the national COVID public health emergency.
A union representing more than 11,500 film and television writers went on strike this week. Gabriel Castro, an attorney in BAL’s Los Angeles office who leads the firm’s Sports and Entertainment practice, joined us to discuss the impact on O-1 visa holders and applicants.
“This is one of the rare times where I’ve looked into the immigration regulations and looked up how something is in the law and been pleasantly surprised. Taking part in the strike will not affect the maintenance of status for your O-1 visa, and this is very important because in these regulations, they didn’t want to disincentivize foreign workers from joining in with the strike with the rest of the Writers Guild or any union covered by this regulation.”
The regulations in question were crafted to prevent companies from hiring workers from abroad to replace workers on strike. This means that once the Department of Labor certifies the strike, O-1 applicants could see delays.
“USCIS is not supposed to approve new O-1 visas, particularly that adversely affect the wages and working conditions of U.S. workers during this time. We’re also going to see — and it would make sense — the Writers Guild are not going to be approving consultation letters for new O-1 visas that are that are being submitted at this time. Those are required under the O-1 visa, and that makes sense. There’s not going to be work for them to approve in the near term. For those foreign workers that are going to need extensions, they’re going to need new O-1s and they will be affected by this.”
Castro added that, under State Department rules, film and television writers who have an approved O-1 visa but have not yet entered the country will not be able to do so once the strike is certified. The strike’s duration is uncertain at this time.
A conversation with Steve Plastrik: the enormous number of H-1B cap registrations and what U.S. Citizenship and Immigration Services is saying about it.
BAL Immigration Report: Last week, the agency released data confirming that it was another record-breaking cap year. We asked Steve Plastrik, a senior associate on BAL’s Government Strategies team, how significant the increase was.
Plastrik: It was pretty massive. This year, there were over 780,000 registrations that were submitted, which is a 61% increase compared to last year. Another way to look at this is that any one registration had a 14.6% percent chance of being selected this year, and that’s only about half of what the selection rate was last year.
BAL: Plastrik outlined some of the primary reasons for the increase.
Plastrik: It really boils down to a few things. Overall, there’s just huge demand for the limited number of H-1B cap visas that are available each year, which is limited to 85,000. But this year, USCIS released some new data points covering the last four years, and that gives us some new insights into what has driven the increase.
First, there’s been a lot of growth in beneficiaries, meaning foreign nationals seeking H-1B status who are entered into the lottery by more than one potential employer. Based on USCIS’ data, almost 54% of eligible registrations this year were for beneficiaries who had registrations submitted for them by multiple employers. Last year that number was only 35% — so we’ve really seen a huge growth in beneficiaries with multiple entries.
Second, the overall number of beneficiaries being entered into the lottery also increased. Over 350,000 beneficiaries were entered by single employer, which is around 40,000 more than last year. So it’s a little complicated, but the new data points from USCIS give us a new and interesting view behind the scenes.
BAL: In its announcement last week, USCIS said that some may have tried to gain an unfair advantage in the lottery.
Plastrik: According to reporting in the Wall Street Journal, around 96,000 beneficiaries counted for over 400,000 of those registrations. So we’re seeing a lot of beneficiaries with multiple entries this year. In its announcement, USCIS acknowledged it has serious concerns that some potential employers and beneficiaries may have tried to gain an unfair advantage, but said it’s committed to deterring and preventing abuse of the H-1B cap lottery system. In particular, it pointed to the attestation that USCIS requires for every registration, and that states that the potential employer and beneficiary aren’t unfairly gaming the system. But at the same time, USCIS also flagged that it has already undertaken extensive fraud investigations, denied and revoked H-1B petitions accordingly and is in the process of initiating law enforcement referrals for criminal prosecution.
BAL: We asked Plastrik whether USCIS data indicates there will be a second lottery this year.
Plastrik: That’s certainly something that we’re wondering about ourselves, but we likely won’t know until sometime in July if USCIS decides to run another lottery round. Looking at the numbers that USCIS released on Friday, it seems possible. The overall number of registrations that were selected was lower than last year, when there was only one lottery round.
At the same time, the proportion of beneficiaries who were entered into the lottery this year by multiple employers also grew. So in other words, know that USCIS selected fewer registrations than last year, but that more of those registrations are tied to beneficiaries who entered into the lottery through multiple potential employers. It’s too soon to know, but if I had to guess, I would say it’s likely.
BAL: USCIS continues to work on a proposed rule to “modernize” the H-1B program. It remains to be seen when this proposal will be published — and what exactly will be in it.
Plastrik: It’s really too soon to know what will be in the proposed H-1B modernization rule. But there are certainly ideas already floating around out there. One option to address the concerns that USCIS has raised would be to allow only one registration per beneficiary. This would mean that each registrant would have the same chances of being selected in the lottery, regardless of the number of potential employers willing to sponsor them if they were selected in the lottery. USCIS hasn’t proposed the regulation yet, but it is on their agenda for October 2023. Whether that timeline will slip and whether the final rule will be in place by next year’s cap season, it’s really too soon to tell.
The Chinese government recently eased its COVID-19 testing requirements for all air travelers. Individuals arriving by plane can now show proof of a negative antigen test taken within 48 hours before departure. Previously, air travelers had to provide proof of a negative PCR test taken before their departure. These travelers are still required to complete a health declaration form upon arrival in China.
The South African government announced plans to introduce work visa reforms. The proposed changes includes streamlining visa applications, introducing a Trusted Employer Scheme, and establishing a points-based system offering more flexible pathways for skilled applicants. Officials intend to introduce new visa categories for remote workers and startup entrepreneurs. They also plan to expand the e-Visa system to cover more categories and an additional 20 countries. Authorities have not yet announced when these changes will go into effect.
In Qatar, authorities recently expanded the Hayya card platform to accept business and tourism visa applications. Foreign nationals can now apply for visas for unpaid business activities, tourism and medical treatment on the Hayya portal. The portal is available to Gulf Cooperation Council residents and those traveling with them, individuals eligible for Electronic Travel Authorization and visa-required foreign nationals. Hayya cardholders can continue visiting Qatar until Jan. 24, 2024, if they meet certain requirements.
Follow us on X, and sign up for daily immigration updates. We’ll be back next week with more news from the world of corporate immigration.
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