Category: Immigration

DHS Publishes List of Countries Eligible for H-2A, H-2B Visa Programs

The Department of Homeland Security has published lists of countries whose nationals will be eligible for the H-2A and H-2B visa programs in the upcoming year.

‌Key Points:

  • The lists are mostly unchanged from last year, with one addition, Bolivia, to both lists.
  • All nationals who were eligible for the H-2A and H-2B visa programs last year will remain eligible this year.
  • Nationals of Mongolia and the Philippines will remain eligible for the H-2B visa program but not the H-2A program. Nationals of Paraguay will remain eligible for the H-2A program but not the H-2B program.
  • Nationals of countries that are not on the lists may be eligible for H-2A or H-2B visas on a case-by-case basis if U.S. Citizenship and Immigration Services makes a determination that issuing a visa would be in the national interest.

Additional Information: The countries whose nationals are eligible for the H-2A and H-2B visa programs are as follows.

Andorra The Kingdom of Eswatini Madagascar Saint Lucia
Argentina Fiji Malta San Marino
Australia Finland Mauritius Serbia
Austria France Mexico Singapore
Barbados Germany Monaco Slovakia
Belgium Greece Mongolia* Slovenia
Bolivia Grenada Montenegro Solomon Islands
Bosnia and Herzegovina Guatemala Mozambique South Africa
Brazil Haiti Nauru South Korea
Brunei Honduras The Netherlands Spain
Bulgaria Hungary New Zealand St. Vincent and the Grenadines
Canada Iceland Nicaragua Sweden
Chile Ireland North Macedonia Switzerland
Colombia Israel Norway Taiwan***
Costa Rica Italy Panama Thailand
Croatia Jamaica Papua New Guinea Timor-Leste
Republic of Cyprus Japan Paraguay** Turkey
Czech Republic Kiribati Peru Tuvalu
Denmark Latvia The Philippines* Ukraine
Dominican Republic Liechtenstein Poland United Kingdom
Ecuador Lithuania Portugal Uruguay
El Salvador Luxembourg Romania Vanuatu
Estonia

*Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.

**Paraguay is eligible to participate in the H-2A program but is not eligible to participate in the H-2B program.

©2023 Berry Appleman & Leiden. All Rights Reserved.
For more news on Visa Program Eligibility, visit the NLR Immigration section.

Additional H-2B Numbers to Be Made Available for Fiscal Year 2024

The U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) have announced that they plan to make an additional 64,716 H-2B visas available for fiscal year (FY) 2024. The announcement should bring relief to industries experiencing an unmet need for seasonal, intermittent, peak load, or one-time occurrence workers.

Quick Hits

  • DHS and the DOL recently announced a plan to make more than 64,000 additional H-2B visas available for FY 2024.
  • Industries, including hospitality and tourism, seafood processing, and landscaping, are experiencing an unmet need for additional workers.

Specifically, the measure is expected to allow for:

  • 20,000 country-specific visas for H-2B workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras; and
  • 44,716 visas for returning workers.

It is anticipated that the visas for returning workers will be split between the first half and second half of the fiscal year—22,358 for each.

The H-2B program, widely utilized in the hospitality and tourism, seafood processing, and landscaping industries, permits employers to hire foreign workers for nonagricultural labor or services on a temporary basis.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

H-1B Proposal Modernizes H-1B Requirements and Oversight, Provides Limited Flexibility for F-1 Student Visa Program

The White House Office of Management and Budget (OMB) has reviewed and approved a Department of Homeland Security (DHS) proposal to bring oversight of the H-1B visa program to the modern era. This proposal also creates flexibility in the F-1 student visa program for students who are the beneficiaries of timely filed H-1B cap-subject petitions.

Based upon the information published by the Department of Homeland Security, the proposed rule will:

  • Revise the regulations relating to the “employer-employee relationship”
  • Provide flexibility for start-up entrepreneurs
  • Implement new requirements and guidelines for site visits, including those conducted in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data
  • Provide limited flexibility on the employment start date listed on the petition
  • Address “cap-gap” concerns
  • Bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system
  • Clarify the requirement that an amended or new petition must be filed where there are material changes, including the streamlining notification requirements related to certain worksite changes

Written public comments must be submitted by Dec. 22, 2023, online at regulations.gov. The proposal, particularly the component aimed at reducing fraud and misuse in the H-1B registration system, is expected to be welcomed by H-1B petitioners and employee beneficiaries who have faced extreme challenges in the lottery in recent years.

Following DHS precedent, the proposed rule is expected to have a delayed effective date should it proceed.

With the fiscal year 2025 H-1B registration season fast approaching, employers and potential H-1B registrants should consider this new proposed rule when solidifying plans for the upcoming registration period.

This article was co-authored by Tieranny Cutler.

© 2023 BARNES & THORNBURG LLP
By Sarah J. Hawk of Barnes & Thornburg LLP
For more news on H-1B Oversight Proposal, visit the NLR Immigration section.

US Halts Visa Services in Israel, Focuses on Assisting US Citizens

The United States has halted immigrant and nonimmigrant visa services in Israel amid ongoing security concerns.

‌‌Key Points:

  • Visa services are unavailable at this time at the U.S Embassy in Jerusalem or the Embassy Branch Office in Tel Aviv. Non-U.S. citizens in need of emergency visa services should request an expedited appointment at a U.S. embassy or consulate other than Jerusalem or Tel Aviv.
  • U.S. citizens in Israel, the West Bank or Gaza who would like assistance should fill out this crisis intake form, which allows the U.S. State Department to respond to requests from evacuees in leaving or obtaining other routine or emergency passport or citizen services or information.
  • Commercial flight availability remains limited out of Ben Gurion Airport, but the U.S. government is facilitating charter flights and other modes of transportation for U.S. citizens. The State Department said these flights will continue until at least Oct. 19.
  • The Israeli government has extended the validity of work visas until Nov. 9, 2023, for all foreign nationals in the country whose Israeli visas will expire within the next month.
  • Up-to-date information is available on the Embassy’s News & Events and Travel Alerts pages.

BAL Analysis: Visa services are not available in Israel at this time. The situation continues to evolve and travel rules and procedures may change with little or no notice. U.S. citizens in Israel are encouraged to monitor State Department websites for updates.

©2023 Berry Appleman & Leiden. All Rights Reserved.

Business Immigration Could Be Impacted if Congress Fails to Fund Government Through FY 2024

On September 30, 2023, President Joe Biden signed into law stopgap funding legislation that temporarily averted a government shutdown. The legislation, which passed the U.S. Congress with bipartisan support and extended funding for the federal government for a period of forty-five days, will keep the government running through November 17, 2023.

Quick Hits

  • A recently enacted stopgap funding measure has allowed the government to continue operations, including immigration services, through November 17, 2023.
  • If Congress cannot reach an agreement to fund the federal government before November 17, 2023, a partial government shutdown may occur.
  • A government shutdown would disrupt federal agencies that are responsible for immigration-related services and benefits. U.S. Citizenship and Immigration Services (USCIS) is a fee-generating agency; during past government shutdowns, USCIS offices generally continued to operate.
  • The U.S. Department of Labor (DOL) is not fee generating, and, consequently, the department’s operations were significantly hindered during previous government shutdowns. As a result, any immigration petition that requires a DOL pre-filing will likely be impacted.

The most significant business immigration impacts of a government shutdown on U.S. employers may include:

  • the DOL taking the Foreign Labor Application Gateway (FLAG) system offline, resulting in a suspension of new labor condition applications (LCAs) that are required for H-1B, H-1B1, and E-3 nonimmigrant petitions;
    • a DOL suspension of PERM labor certifications and prevailing wage determinations (PWD), which would further extend already lengthy PERM and PWD processing times; and
    • possible visa processing delays at U.S. consulates. While the U.S. Department of State is partially funded by visa application fees, it is possible that nonemergency services could be suspended during a prolonged shutdown.

Next Steps

While Congress temporarily averted a government shutdown, the members of the U.S. House of Representatives and the U.S. Senate have not reached an agreement on an appropriations bill to fund the federal government through the entirety of fiscal year (FY) 2024. The risk of a government shutdown remains if Congress is not able to resolve spending and policy disagreements prior to November 17, 2023.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
Article by  Katie W. Desmond of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
For more articles on business immigration, visit the NLR Immigration section.

The Complex Reality of Immigration Detention Centers in the Biden Era

n 2020, President Joseph “Joe” Biden pledged to end for-profit immigration detention, emphasizing the moral imperative that “no business should profit from the suffering of desperate people fleeing violence.” However, as the Biden administration embarked on this mission, it encountered numerous challenges.

As of July 2023, 90 percent of the 30,000 individuals in ICE detention were housed in privately operated facilities. Private corporations have seen their revenues from immigrant detention increase exponentially. As the ACLU has stated, it is evident that the federal government’s immigration detention system leans heavily on private prison corporations. Notable entities in this sector, including the GEO Group, CoreCivic, LaSalle Corrections, and the Management Training Corporation, have amassed billions from ICE detention contracts over the past two decades.

A recent internal review of detention centers brought into focus the intricate issues surrounding immigration detention and how it currently affects communities, detainees, and the interests of private prison companies.

The Promise of Change & Findings

During his campaign, Biden pledged to end the use of private prison companies for immigration detention. In 2021, he declared “no private prisons, period,” when responding to protesters advocating for an end to immigration detention. However, Biden’s statement noticeably omitted ICE detention from this pledge despite issuing an executive order in Jan. 2021 instructing the Department of Justice to gradually terminate its contracts with private prison companies. Consequently, the number of immigrants detained by ICE has continued to rise, leading to increased revenues for private prison companies.

In May 2021, shortly after Biden took office, senior immigration officials launched an internal review of detention centers, aiming to assess which facilities should be scaled back, reformed, or closed. During this period, private prison companies experienced a notable surge in revenue from ICE contracts, prompting concerns among advocates who questioned whether private facilities met the required standards of care for detainees, including concerns about poor medical care, unsanitary conditions, limited access to legal representation, sexual assault, and detainee deaths. The internal review highlighted advancements achieved within detention centers as well as persistent challenges. At the Moshannon Valley Processing Center, noticeable changes included the removal of razor wire from the fences and the absence of deadly weapons among staff. Detainees are now referred to as “residents,” and guards are designated “resident advisers.” However, accounts from inmates reveal instances of unjust solitary confinement and mistreatment by guards, underscoring the ongoing issues within these facilities.

As Biden gears up for potential re-election in 2024, immigration continues to be a controversial topic. While the Biden administration has not yet addressed concerns regarding the closing or improving some of the most heavily criticized detention centers, a White House spokesperson reiterated the administration’s dedication to reducing the use of private detention facilities.

Ongoing immigration detention reform is a journey fraught with challenges, including competing economic interests, political pressures, and the need to work toward the humane treatment of detainees. The Biden administration has made some strides, but the debate surrounding immigration detention remains complex and divisive.

©2023 Norris McLaughlin P.A., All Rights Reserved
Read more immigration news on the National Law Review.

Health Care Immigration: Alleviating the U.S. Nursing Shortage

The nursing shortage has been a persistent problem in the United States for decades, with experts predicting it will only worsen in the coming years. Many factors contribute to the nursing shortage, including an aging population, the retirement of experienced nurses, and an increasing demand for healthcare services. One potential solution to the shortage is immigration law, which can help bring in qualified nurses from other countries to work in the United States.

The nursing shortage is a complex issue that affects the entire healthcare system. Nurses play a crucial role in providing high-quality care to patients, and their absence can have serious consequences for patient outcomes. According to McKinsey, the United States may have a gap of between 200,000 to 450,000 nurses available for direct patient care by 2025. This shortage is not limited to registered nurses; there is also a shortage of licensed practical nurses, nurse practitioners, and other healthcare professionals.

One way to address the nursing shortage is to attract qualified nurses from other countries. The United States has a long history of welcoming immigrants from all over the world, including healthcare professionals.

Employment Immigration Sponsorship to Meet U.S. Nursing Demands

Several immigration options are available for nurses who wish to work in the United States. The most common options are the H-1B visa, the TN visa, and the EB-3 visa:

  • The H-1B visa is a non-immigrant visa that allows employers to temporarily hire foreign workers in specialty occupations. Registered nurses qualify as workers in a specialty occupation, so they are eligible. The H-1B visa is valid for up to three years and can be extended for an additional three years. However, there is a cap on the number of H-1B visas issued each year and the competition for these visas is often high.
  • The TN visa is a non-immigrant visa available to Canadian and Mexican citizens under the North American Free Trade Agreement (NAFTA). Nurses who are citizens of Canada or Mexico and have the necessary qualifications can apply for the TN visa to work in the United States. The visa is valid for up to three years and can be renewed indefinitely.
  • The EB-3 visa is an immigrant visa available to foreign workers in skilled or unskilled positions. Nurses qualify as skilled workers and can apply for the EB-3 visa. The visa requires an employer to sponsor the nurse, who must have a permanent job offer in the United States. The EB-3 visa is subject to a lengthy application process and may take several years to obtain.

In addition to these options, certain state-specific programs allow foreign nurses to work in those states. For example, the Health Professional Shortage Area (HPSA) program allows foreign nurses to work in areas with a shortage of healthcare professionals. The Conrad State 30 program allows foreign nurses to work in certain states for up to three years if they agree to work in underserved areas.

It is important to note that each immigration option has its own set of requirements and limitations. Nurses who are interested in working in the United States and health care providers seeking foreign talent must consult with an experienced immigration attorney to determine the best option for their specific situation.

Overall, immigration law provides options for foreign nurses who wish to work in the United States. As they take advantage of these options, the nursing shortage in the United States can be alleviated, and patients can receive the high-quality care they need and deserve.

Immigration Policy Updates are Critical to Close the Nursing Shortage Gap

While there exist many employment immigration visas that help alleviate the pressure of the ongoing nursing shortage on the health care industry, immigration laws, regulations, and administrative policies can make it difficult for foreign nurses to work in the United States. Strategic updates to these laws, regulations, and administrative policies are critical to permit foreign nurses to enter the nursing labor market.

One change is to streamline the visa process for foreign nurses. Currently, the process of obtaining a visa to work in the United States can be time-consuming and complicated. Many foreign nurses face significant barriers such as language proficiency exams, educational requirements, and visa quotas. By simplifying the visa process and reducing these barriers, the United States could recruit more foreign nurses to work here.

Another change is to provide incentives for foreign nurses to come to the United States. For example, the government could offer financial assistance to help them cover the cost of their relocation and provide support services to help them adjust to their new home. Additionally, employers could offer signing bonuses, tuition reimbursement, and other benefits to attract foreign nurses.

Finally, immigration agencies can develop partnerships with other countries to increase the number of nurses trained abroad. Many countries, particularly developing nations, have large numbers of qualified nurses who are unable to find work in their home countries. By partnering with these countries, the United States could help train more nurses and provide them with opportunities to work in the United States.

The nursing shortage is a serious problem that requires innovative solutions. Immigration law already plays a crucial role in addressing the shortage. This role, however, can grow through streamlining the visa process, providing incentives for foreign nurses to come to the United States, and creating partnerships with other countries.

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more immigration legal news, click here to visit the National Law Review.

©2023 Norris McLaughlin P.A., All Rights Reserved

Tenth Circuit Declares No Remedy for Hemp Farmer Whose Federally Legal Plants Were Seized

In January, the United States Court of Appeals for the Tenth Circuit issued a published opinion in Serna v. Denver Police Department, No. 21-1446 (10th Cir. Jan. 24, 2023), upholding the dismissal of a hemp farmer’s lawsuit against local government officials in Colorado who confiscated his plants.

The farmer – Francisco Serna – brought suit under the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”) which legalized hemp across the country and included limitations on states’ ability to prohibit the transportation of certain hemp plants and products across state lines. However, the three-judge panel concluded that no provision within the law allows for a private right of action by an individual to challenge instances of perceived unlawful governmental interference.

Serna grew hemp in Texas and intended to bring several plants home with him from Colorado. But when he attempted to get the plants – consisting of “plant clones or rooted clippings” – through Denver’s airport, a police officer confiscated them under a departmental policy to seize plants containing any discernible level of THC. Even though Serna had documentation showing that the plants’ THC level was beneath the limit authorized by the 2018 Farm Bill – and therefore compliant under federal law –  the officer took the plants anyway.

Serna’s Legal Proceedings

Serna sued the Denver Police Department and the confiscating officer under Section 10114(b) of the 2018 Farm Bill, which prohibits states from interfering with interstate transport of hemp and products that comply with the law. Serna asserted that because his plants were complaint, the defendants violated the provision. However, a federal magistrate judge granted the defendants’ motion to dismiss, which the district court adopted.[1] Serna then appealed to the Tenth Circuit.

The Tenth Circuit also held that no private right of action existed for Serna to employ. The court’s conclusion rests on the determination that Congress did not intend that hemp farmers, like Serna, should constitute a protected class under the 2018 Farm Bill. Without that status, they cannot sue. The court focused on the plain language of Section 10114(b), reasoning that it “makes no mention of [a] purported class of licensed [hemp] farmers” and merely provides that “no state…shall prohibit the transportation or shipment of hemp” across its borders. Thus, the provision pertains only to “the person regulated rather than the individuals protected,” which is fatal to the private right of action inquiry. The court compared Section 10114(b) with other federal statutes that do create private rights of action, such as Title VI of the 1964 Civil Rights Act, which specifies that “[n]o person…shall…be subjected to discrimination.” 42 U.S.C. § 2000d.

Takeaways

The unfortunate result of this decision is that individuals who comply with the provisions of the 2018 Farm Bill during the course of their business operations cannot seek recourse from improper government meddling. As a result, the law is significantly less protective than anticipated. Rather than suing to protect their interests, entrepreneurs like Serna must instead depend upon other actors – perhaps state attorneys general – to pursue these types of cases. However, those non-stakeholders generally have less incentive to pursue lawsuits, particularly against peer law enforcement agencies, leaving hemp operators with no remedy to enforce their rights under the 2018 Farm Bill.

In a broader sense, the Serna case is a cautionary tale for those who expect federal descheduling of marijuana to resolve the regulatory complexities currently faced throughout the cannabis industry. If hemp operators working with products that are federally legal are unable to utilize the courts to challenge unlawful seizure of their products, then the effectiveness of federal legalization of cannabis may require an express private right of action.

Going forward, Serna has a limited period of time to request that the case be re-heard by the Tenth Circuit en banc (i.e., by the entire eleven-judge court) – otherwise, the three-judge panel’s opinion will remain the operative, binding outcome.

[1] The magistrate judge and the district judge differed on their bases for concluding that Serna could not sue under the 2018 Farm Bill. Specifically, the magistrate judge determined that Section 10114(b) neither created a private right of action nor a private remedy. The district judge, on the other hand, concluded that Congress did authorize a private right of action but no private remedy to enforce it was evident. This additional divergence is another example of how the 2018 Farm Bill is susceptible to conflicting interpretations, which will likely only increase going forward as other courts consider the issue.

Article By Emily M. Leongini, Shahiedah Shabazz, and Morgan R. Pankow of ArentFox Schiff LLP

For more cannabis legal news, click here to visit the National Law Review.

© 2023 ArentFox Schiff LLP

As White House Loses House Majority, what is Next for H-1B Visa Program?

The H-1B is a popular and highly-sought-after visa category for skilled foreign workers seeking to work in the United States. It has been the subject of much debate and controversy over the years, and recent changes in the political landscape have added new uncertainties and challenges to the H-1B visa process. This blog post explores the impact of the Biden administration on changes to the H-1B visa, as well as the role of the new Republican majority in the House of Representatives in shaping the future of the H-1B visa program.

What is the H-1B Visa?

The H-1B is a temporary, nonimmigrant visa category that allows employers to petition on behalf of highly-educated foreign professionals who work in specialty occupations that require at least a bachelor’s degree. These jobs are generally in the fields of science, technology, engineering, and mathematics (“STEM”), enhancing American competitiveness in the global economy. In fact, in an effort to be even more competitive, the Biden administration recently expanded eligible fields of study that qualify under the program, as described in greater detail on this blog.

The H-1B visa allows U.S. employers to fill critically important jobs in the United States with foreign workers.  While many critics of the H-1B argue that it potentially limits job opportunities for U.S. workers, many others suggest that H-1B workers offer critical support to the U.S. economy. In fact, according to the American Immigration Counsel, H-1B recipients provided critical assistance during the COVID-19 pandemic, with many doctors, scientists, and nurses present in the U.S. on the H-1B visa, including individuals who assisted with the development of vaccines.

Biden Administration and its Relationship with Immigration Reform

One of the key priorities of the Biden administration has been to modernize and improve the U.S. immigration system, including the H-1B visa program. To this end, the Biden administration has taken steps to make the H-1B visa process more accessible and efficient for skilled foreign workers, including increasing the number of visas available, increasing transparency and consistency in the lottery process, and streamlining the application process.

According to a recent article by Forbes, Senator Richard Durbin (D-IL) and Senator Alex Padilla (D-CA) are expected to return as Senate Judiciary Committee chair and immigration subcommittee chair, respectively. It is expected that Sen. Chuck Grassley (R-IA) will no longer be ranking member on the Senate Judiciary; Sen. Lindsey Graham (R-SC) likely will hold that position. Just last year, Senator Grassley blocked an exemption from green card limits for certain foreign nationals with PhDs in STEM fields – a move that frustrated employers and universities alike.

Although Democrats hold the majority in the Senate, the House now features a Republican majority, which may complicate immigration reform efforts on Capitol Hill.

Republicans on Capitol Hill Seek to Counter Democratic Efforts on Immigration

The new Republican majority in the House of Representatives may pose a challenge to the Biden administration’s efforts to reform the H-1B visa program. Republicans have traditionally been more critical program and have pushed for reforms that would restrict the number of visas available and make it more difficult for foreign workers to come to the United States.

Sen. Tom Cotton (R-AR) has been a vocal critic of the H-1B program, stating that it is used to hire cheap foreign labor at the expense of American workers. Similarly, Sen. Grassley has expressed concerns about the impact of the program on American workers, claiming that while the visa was intended to help American businesses recruit the best and brightest talent from around the world, it’s too often been used to import cheaper foreign labor and displace American workers.

Given these differing perspectives, the future of the H-1B visa program will likely continue to be a source of political debate and controversy in the United States. However, it is clear that both sides of the political aisle agree that it needs to be reformed in some way, whether to make it more accessible and efficient for skilled foreign workers, or to better protect the interests of American workers.

Currently, the H-1B process in the United States is in a state of flux, with the Biden administration taking steps to modernize and improve the program, while the new Republican majority in the House of Representatives raises concerns about its impact on American workers. Whether the program will ultimately be reformed to better serve the interests of foreign workers, American workers, or both remains to be seen, but clearly this issue will continue to be a major source of political debate and controversy in the United States for the foreseeable future.

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more immigration legal news, click here to visit the National Law Review.

©2023 Norris McLaughlin P.A., All Rights Reserved

Passport Entry Date Stamps to Be Eliminated

U.S. Customs and Border Protection (CBP) plans to eliminate passport entry date stamps in the passports of foreign nationals arriving in the U.S. The new policy measures are already in effect in some ports of entry and CBP will continue to expand the policy at additional ports.

The Form I-94 record of admission will continue to be used as a proof of a foreign national’s travel history and immigration status, which are accessible online. Foreign nationals are strongly encouraged to access and review their I-94 online as soon as they are inspected and admitted. Checking for errors in their I-94 online admission status before they leave the inspection area can help to avoid mistakes that may not be easily fixed after entry.

Since the I-94 governs the foreign national’s immigration status and work authorization for I-9 purposes, employers should also carefully monitor their foreign national employees’ status for Form I-9 employment verification.

© 2023 BARNES & THORNBURG LLP
For more Immigration Law News, click here to visit the National Law Review.