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The government is open—for now. The Supreme Court declines to hear a case challenging Optional Practical Training. And employers turn an eye toward the upcoming H-1B cap season.
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.
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Lawmakers introduce a Name, Image and Likeness bill with new provisions for F-1 student athletes. The U.S. curtails consular services in Niger. And a closer look at USCIS’ second H-1B lottery.
U.S. Citizenship and Immigration Services completes a second H-1B registration lottery. The U.S. limits Hungarian citizens’ access to the visa waiver program. And a look at J-1 visa opportunities for STEM researchers and specialists — and how they could help keep the U.S. competitive in the global economy.
The Department of Homeland Security publishes a much-anticipated Form I-9 rule. USCIS announces it will conduct a second H-1B registration lottery. And a closer look at two recent Supreme Court cases and their impact on DACA litigation.
We sat down with BAL’s legal experts to discuss this year’s H-1B season.
Question: What are some of the challenges with the H-1B visa program you are seeing so far this year?
Answer: The cap season was drastically bad for most employers who had registered cases. We didn’t realize that the national average was so low, although we knew that our internal average was falling right into those percentages. But to have less than 20% of registrations selected was unprecedented.
Q: What are the implications for employers?
A: The H-1B cap and the lottery process itself has become unreliable because of these low selection numbers compared to registrations. It is forcing employers to plan so much more ahead, and then if they get good candidates who only have one or two chances at the lottery, they are reconsidering whether they should even hire those candidates, which is really a shame. In our economy, and for our U.S. businesses that are trying to attract foreign talent, they are hitting a lot of dead ends.
Many of our clients are doing contingency planning for their valuable foreign talent who have submitted up to three times and still haven’t been selected in the H-1B lottery. This involves developing training programs for these individuals or finding roles for them in overseas offices. But some are starting to reconsider continuing to recruit from certain foreign programs, such as foreign engineering programs, for example. Particularly, U.S. employers that don’t have international offices and can’t send someone to work in an overseas office, they are considering the E-Verify program so that they can participate in STEM Optional Practical Training (OPT). And they are also starting the permanent residence process early so the individual will have a green card-based work option by the time their OPT expires.
Q: What do you recommend employers do?
A: Start planning as early as you can. Unless Congress makes some change, the chances are this cycle of very low selection percentages will continue. It seems to get much lower every year.
Q: What other options do employers have?
A: For employers willing to hire students, there is OPT, which is for temporary employment directly related to a student’s major area of study who is here on an F-1 visa. F-1 visas allow students to work part time while school is in session and full time when school is not in session. Students can stay in the U.S. for one year, and up to three years if they are eligible for an extension.
Another similar option is Curricular Practical Training (CPT), also for F-1 visa students, which allows students to come to the U.S. for training and to work in paid internship positions. CPT allows for full-time or part-time work.
The main difference between OPT and CPT is OPT can be completed before or after a student graduates. CPT must be completed before graduation.
J-1 visas are for students specifically in the U.S. for educational or cultural exchange programs. Students in J-1 status are allowed to work only part time, not more than 20 hours per week, during an academic year and full time only during summer and official university breaks.
H-3 nonimmigrant visas allow foreign nationals to come to the U.S. as trainees in any field that is not available in their home country and stay for up to two years.
Q: What are the options for employers who are not hiring students?
A: Employers can consider hiring foreign nationals from countries the U.S. has immigration or trade-related treaties with, such as Canada and Mexico (eligible for TN visas), Australia (eligible for E-3 visas), and Chile and Singapore (eligible for H-1B1 visas).
Q: Are you seeing any of the alternatives become more common? Are employers turning toward L-1s for intracompany transferees or O-1s for those with extraordinary abilities, for example?
A: An emerging trend among larger companies is to establish a contingency plan specifically for their foreign population.
What we have seen in the last five years among larger clients that have international offices is some activity in developing rotation programs and using the H-3 trainee visa category for that, especially in the manufacturing and engineering industries. Employers tend to have already established training programs that often are at least three to six months of rigorous training before employees really get into their manufacturing or engineering role. So H-3 has been popular, although it is highly regulated and scrutinized by USCIS.
Others have started contingency planning for L-1s, developing an international rotation program so they can eventually send a talented person they want to retain in the U.S. to work in a foreign location for a couple of years and then bring them back to the U.S.
Both the L-1 and the H-3 visas require that the U.S. employer have an affiliated office overseas to either transfer employees to or send them to after their training rotation.
This alert has been provided by the BAL U.S. Practice Group.
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BAL Senior Associate Matt Dillinger spoke about H-1B visas on Friday, March 31, at the Spring Conference of the Texas Chapter of the American Immigration Lawyers Association (AILA). We sat down with Matt to discuss his work on H-1Bs and more.
We will discuss best practices for prepping for the 2024 cap season, new occupational codes used for H-1Bs, and how to handle employees in licensed professions. We will also discuss scenarios that require special considerations and creative legal arguments to successfully gain work authorization approvals.
There is a provision that allows people to extend their H-1B beyond the six-year maximum period if they have an approved immigrant petition but no green card is available. This is especially common for Indian and Chinese nationals for whom priority dates are significantly backlogged. But after the significant advancement of priority dates in 2020, many H-1B employees were no longer clearly eligible for these extensions, as they may have moved employers and thus not been able to file a green card application despite having been current for more than one year. Employees in this situation require a unique approach in order to continue to extend their status.
Many employers believe that when they file a change of employer petition for an employee, they must wait for approval by USCIS. But technically that employee can start working for a new employer as soon as the petition is received by USCIS. In the past, both employers and employees have shied away from doing that because Request for Evidence and denial rates were much higher. However, we are now seeing fewer RFEs and denials, so employers are becoming more comfortable allowing employees to start work before receiving final approvals. The same goes for employees.
Even experienced I-9 people might not know that there are special rules that make it possible to hire on receipt. Also, technically, employers don’t even need the formal USCIS receipt notice. You can submit I-9 paperwork based on the change of employer petition filing, proof of payment and proof of delivery.
I like things to be as clear and concise as possible. My approach is to provide a clear assessment of any risk I see, while also providing practical solutions or strategies, and minimizing the complexity of the situation, so the client feels confident moving forward.
I have always enjoyed learning languages and studying other cultures, so the international aspect of immigration law appealed to me. I find immigration law to be extremely rewarding. I feel good at the end of each day because I get to help my clients, help their employees and employees’ families and, in doing so, I believe I am making the United States a better place.
Matthew Dillinger is a Senior Associate in the Austin office of BAL. His practice focuses on developing and implementing creative strategies to meet the needs of his clients. He has worked with clients from a wide range of industries, including telecommunications, information technology, fintech consulting, higher education and healthcare, Matt believes strongly in pro bono work and has represented pro bono clients in DACA, U visa and asylum cases. In addition, he has served on the Leadership Board of the National Immigrant Justice Center.