Immigration Archives - Page 4 of 44 - The National Law Forum

USCIS Releases H-1B Lottery Information: Registration Process Begins March 6

U.S. Citizenship and Immigration Services (USCIS) released guidance on the Fiscal Year (FY) 2025 H-1B lottery process. The registration system will be open from noon Eastern, March 6, 2024 until noon Eastern, March 22, 2024. The application fee will remain $10 for each case entered into the system.

This year, USCIS will implement a new “Beneficiary Centric Selection” process that will help to ensure all beneficiaries have an equal chance of selection, regardless of the number of times each beneficiary is registered. Please see “Winning Futures? The H-1B ‘Lottery’ Will Open Soon. USCIS Predicts Success” for more details.

Why is H-1B filing season important?

This is the only time of year (with minor exceptions indicated below) USCIS accepts H-1B specialty worker petitions for the next fiscal year, which begins Oct. 1, 2024. For a petition to qualify in the H-1B category, the job offered must be a specialty occupation in which a bachelor’s degree (or its equivalent) is normally the minimum requirement, and the foreign national employee must hold a bachelor’s degree (or its equivalent) in the specialty defined by the position. In some cases, a bachelor’s-level threshold may be met through a combination of the employee’s education and work experience.

There is an overwhelming demand for the annual allotment of 85,000 new H-1Bs. The number of H-1B approvals requested by employers has reached the annual H-1B cap every year for more than 10 years. Last year, USCIS received 780,884 registrations within the electronic lottery system for 85,000 H-1B slots. If you have an employee that needs a “new” H-1B visa, it is imperative that you take action during the H-1B filing season or you will have to wait a full year for another opportunity.

Electronic registration process in 2024

USCIS will use same the electronic registration system from years past to implement the new beneficiary centric selection process. Employers seeking to file H-1B cap-subject petitions must complete an electronic registration for every case the employer wishes to enter into the H-1B lottery. This year, the employer must enter a valid passport or travel number for each registrant. If selected, the passport or travel number used in the H-1B petition filing must be the same number used at the time of registration. This new approach, focusing on the individual registrant, should increase selection odds.

After the registration period closes, USCIS will conduct a random selection lottery from the registrations. The date of the lottery selection has not been announced but will likely occur on or about April 1, 2024. Employers whose cases are selected will then have at least 90 days to complete and file H-1B petitions with USCIS.

Dinsmore attorneys are available to assist employers in navigating the new application process, including completion of the electronic registration and subsequent preparation and filing of selected petitions. USCIS continues to develop its electronic registration system and is expected to release additional details as the registration period approaches.

Are there certain employees we should consider registering?

Yes, four situations come to mind:

Students who hold F-1 visa status and who are working for your organization under a grant of Curricular Practical Training, Optional Practical Training or STEM Optional Practical Training work permission;
Certain L-1 Intracompany Transferees or TN (USMCA/NAFTA) workers who work for your organization;
Candidates who are not yet working for your organization but whom you have an interest in employing in the near future; and
Dependent spouses who hold H-4 status and who have been authorized to work with an Employment Authorization Document (EAD).

Why F-1 students?

Some F-1 students may qualify for an Optional Practical Training (OPT) work permission that is limited to one year following completion of their degree. Other F-1 students may be eligible for an additional 24 months of STEM OPT work permission. Either way, OPT is time-limited. Furthermore, some additional students may hold Curricular Practical Training (CPT). CPT authorizes employment off campus while the student is still taking classes. These students may be pursuing their first degree in the U.S., or they may have returned to school for an additional degree following exhaustion of their first round of OPT if they were not selected in the H-1B cap lottery. Bottom line: If you have a student working for you on OPT or CPT, it is worth evaluating if they need an H-1B cap registration.

Why L-1 intracompany transferees?

The L-1 intracompany transferee visa category applies to foreign nationals who have been employed abroad in executive, managerial or specialized knowledge capacities for at least one year with a commonly owned foreign company, and who are in the United States working for the same or a related U.S. employer.

L-1 executives or managers (L-1A) may remain in the United States for a maximum of seven years. Specialized knowledge (L-1B) employees may remain for a maximum of five years. There is no possibility of an extension once the seven-or five-year limit has been reached and the time table to complete the permanent residence process continues to climb, especially for Indian foreign nationals.

Why H-4 spouses with employment authorization documents?

H-4 spouses are eligible to apply for an H-4 Employment Authorization Document (EAD) if their spouses in H-1B status have an approved I-140 petition. The H-4 EAD allows the spouse to obtain work authorization and engage in employment in the United States. H-4 spouses working with EADs may wish to have their H-4 statuses changed to H-1B for greater long-term employment security.

Why TN employees?

While TN workers under the U.S. Mexico-Canada Agreement (formerly known as NAFTA) are not limited in employment duration like their L-1 counterparts, pursuing permanent residence while holding TN status can be problematic. Employers may want to change their TN employees to the H-1B category to facilitate permanent residence (green card) sponsorship.

Are there any exemptions from the annual H-1B cap?

Persons already counted under the H-1B cap and who need an extension of stay are not subject to the annual limitation. Similarly, persons who already hold H-1B status and are transferring to a new employer are exempt from the cap. The annual limitation applies only to persons not yet counted against the annual cap. Also, certain types of educational or nonprofit organizations that file H-1B petitions are exempt from the H-1B numerical limitation.

Form I-9 Software: Avoiding Unlawful Discrimination When Selecting and Using I-9 and E-Verify Software Systems

A recent employer fact sheet from the U.S. Department of Justice (DOJ) and U.S. Department of Homeland Security (DHS) provides guidance for avoiding unlawful discrimination and other violations when using private software products to complete Forms I-9 and E-Verify cases.

Quick Hits

Employers are responsible for selecting and using software products that avoid unlawful discrimination and comply with Form I-9 and E-Verify requirements.
Employers must not use software products that violate Form I-9 and E-Verify requirements or involve system limitations that unlawfully discriminate among workers.
DOJ and DHS advise employers to train staff on Form I-9 and E-Verify requirements, and to provide access to published government guidance on Form I-9 and E-Verify requirements.

Employer Compliance With Form I-9 Software Products

The fact sheet reminds employers to use the current Form I-9 and properly complete the Form I-9 for each new hire after November 6, 1986, with any acceptable employee documents. Form I-9 systems must comply with requirements for electronic signatures and document storage including the ability to provide Form I-9 summary files containing all information fields on electronically stored Forms I-9. The fact sheet confirms required software capabilities and employer practices to properly complete the Form I-9 and avoid unlawful discrimination.

Employers must ensure that any software:

allows employees to leave form fields blank, if they’re not required fields (such as Social Security numbers, if not required on E-Verify cases);
allows workers with only one name to record “Unknown” in the first name field and to enter their names in the last name field on the Form I-9;
uniquely identifies “each person accessing, correcting, or changing a Form I-9”;
permits Form I-9 corrections in Section 1 and does not complete Section 1 corrections for workers, unless completing preparer/translator certifications in Supplement A;
retains all employee information and documents presented for form completion; and
permits Form I-9 corrections in Section 2 and allows completion of Supplement B reverifications with any acceptable employee documents.

Employer Compliance With E-Verify Software Products

The fact sheet reminds employers to comply with E-Verify program requirements when using software interfaces for E-Verify case completion. The fact sheet confirms required software capabilities and employer practices for completing E-Verify cases. Employers must still:

provide employees with current versions of Further Action Notices and Referral Date Confirmation letters in resolving Tentative Nonconfirmations (mismatches) in the E-Verify system;
provide English and non-English Further Action Notices and Referral Date Confirmation letters to employees with limited English proficiency;
display E-Verify notices confirming employer use of E-Verify;
“promptly notify employees in private” of E-Verify mismatches and provide Further Action Notices. If an employee who has been notified of a mismatch takes action to resolve the mismatch, provide the Referral Date Confirmation letter with case-specific information;
delay E-Verify case creation, when required. For example, when workers are awaiting Social Security numbers or have presented acceptable receipts for Form I-9 completion, employers must be able to delay E-Verify case creation; and
allow employees to resolve E-Verify mismatches prior to taking any adverse action, including suspensions or withholding pay.

Prohibited Employer Activity When Using Form I-9 Software

The fact sheet notes that an employer that uses private software products for Form I-9 or E-Verify compliance is prohibited from:

completing the Form I-9 on an employee’s behalf unless the employer is helping an employee complete Section 1 as a preparer or translator;
prepopulating employee information from other sources, providing auto-correct on employee inputs, or using predictive language for form completion;
requiring more or less information from employees for Form I-9 completion or preventing workers from using preparers/translators for form completion;
improperly correcting the Form I-9, improperly creating E-Verify cases, or failing to report corrections in the Form I-9 audit trail;
requesting more or different documentation than needed for Form I-9 completion, or failing to complete reverification in Supplement B of the Form I-9; and
imposing “unnecessary obstacles” in starting work or receiving pay, “such as by requiring a Social Security number to onboard or by not paying an employee who can complete the Form I-9 and is waiting for a Social Security number.” (Emphasis in the original.)

Staff Training and Technical Support

The fact sheet warns employers against using software products that do not provide technical support to workers, and it notes that employers are required to provide training to staff on Form I-9 and E-Verify compliance. Resources for staff members using software products for Form I-9 and E-Verify case completion include I-9 Central, the Handbook for Employers M-274, the M-775, E-Verify User Manual, and DOJ publications.

March Visa Bulletin: Priority Date Cutoffs Move Back with Switch to Final Action Dates

The U.S. State Department released the March Visa Bulletin Friday, showing little movement in the employment-based Final Action Dates and Dates for Filing charts. U.S. Citizenship and Immigration Services announced that in March it will use Final Action Dates to determine filing eligibility.

Because Dates for Filing are generally more progressive, the switch to Final Action Dates means that priority date cutoffs will move back next month—and fewer applicants will be eligible to file for employment-based green cards.

When comparing February’s Dates for Filing chart to March’s Final Action Date chart, the movement of cutoffs for being eligible to file for employment-based green cards is as follows:

EB-1

China EB-1 will move back 5½ months to July 15, 2022.
India EB-1 will move back three months to Oct. 10, 2020.
All other countries under EB-1 will remain current.

EB-2

China EB-2 will move back five months to Jan. 1, 2020.
India EB-2 will move back 2½ months to March 1, 2012.
All other countries under EB-2 will move back nearly three months to Nov. 22, 2022.

EB-3

China EB-3 will move back 10 months to Sept. 1, 2020.
India EB-3 will move back one month to July 1, 2012.
Philippines EB-3 will move back almost four months to Sept. 8, 2022.
All other countries under EB-3 will move back almost five months to Sept. 8, 2022.

Final Action Dates for Employment-Based Preference Cases:

Preference	All Other Countries	China	India	Mexico	Philippines
EB-1	Current	July 15, 2022	Oct. 1, 2020	Current	Current
EB-2	Nov. 22, 2022	Jan. 1, 2020	March 1, 2012	Nov. 22, 2022	Nov. 22, 2022
EB-3	Sept. 8, 2022	Sept. 1, 2020	July 1, 2012	Sept. 8, 2022	Sept. 8, 2022

Additional Information: The March Visa Bulletin and the switch to Final Action Dates come after employment-based priority date cutoffs advanced key categories in January and saw no movement in February. This is the first time this fiscal year that USCIS has used the Final Action Dates to determine filing eligibility for employment-based applicants. USCIS will continue using the Dates for Filing chart to determine family-based filing eligibility next month.

U.S. Immigration Strategies to Attract, Retain, and Develop Talent

Amid the evolving global economy throughout the past year, employers may be reassessing their approach to talent acquisition and retention. Companies are navigating uncertainty by recalibrating mobility programs, aiming to not only attract but also retain talent to fulfill a skills gap in the U.S. workforce. Central to leveraging foreign talent is the power of immigration branding and messaging. A strategic emphasis on employee longevity proactively curtails workforce attrition and preempts potential labor shortages in the future.

Attracting talent

Understanding and leveraging avenues offered by U.S. immigration laws can be pivotal in securing the right skills and meeting business demands to drive success. Employers commonly leverage F-1 student OPT/STEM OPT training and the H-1B and L-1 work visa programs to source foreign workers in the talent ecosystem.

Foreign students with work authorization pursuant to OPT/STEM OPT are prime candidates for expanding a company’s talent pool with long-term development potential. Employers may attract foreign students through internships while the student completes their academic program, post-graduation employment pursuant to OPT/STEM OPT, and subsequent work visa and green card sponsorship. For most foreign students, switching from a student visa to a work permit is often challenging due to the restrictions and limited availability of H-1B visas. However, companies with an overseas presence may be able to set up strategically located hubs abroad to recruit and employ foreign nationals who were not able to obtain an H-1B visa, and then transfer them back to the United States with L-1 intracompany transfer visas following their employment abroad over at least one year. A company’s corporate immigration policy outlining support of various immigration pathways, and benchmarked against the policy of industry peers, is a competitive tool to meet foreign workers’ needs and attract high-potential talent.

Retaining talent

In response to the need for talent retention, employers are strategically tapping into their existing talent pool to bolster operational efficiency. With post-COVID-19 employees seeking greater fulfillment, employers may want to consider proactively refining their retention efforts to include top-tier foreign talent.

Companies are increasingly turning to their internal talent reservoirs to bridge skill gaps and curtail additional hiring costs. Retaining current talent is becoming pivotal for success, mobility, and business continuity. To address the evolving landscape of talent retention and the demand from foreign talent for immigration support, employers may consider several key strategies.

Various immigration pathways offer avenues for continued employment, providing stability to existing talent. For example, some companies leverage sponsorship for work visa programs and employment-based green cards to retain skilled foreign workers. Payment of legal fees and the provision of immigration counsel are initial steps in this effort, and other offerings including immigration seminars for employees and family members, an internal immigration portal with FAQs and self-service features that provide status reports, and access to documents and opportunities for interaction with the immigration team are also important. Employers leverage streamlined extension processes for work authorization to ensure continuity for employees and the business without disruptions. Embracing technological advancements in immigration processes may streamline procedures, reduce processing times, and minimize errors. Further, a robust green card sponsorship program signals a long-term commitment to retain valuable talent and grants employees a sense of security and stability in their professional journey within the company. Clearly defined benchmarks when the company initiates green card sponsorship are not only a recruitment and retention tool but also ensure that foreign workers do not lose immigration status or work authorization.

Adaptability and foresight also benefit companies navigating corporate immigration policy frameworks. Companies can implement consistent yet flexible approaches to immigration sponsorship that cater to both business needs and the foreign worker’s circumstances. For example, timing adjustments in initiating green card sponsorship may prevent work authorization gaps. Evaluating risks versus benefits might lead to early green card sponsorship for students to safeguard their status and work authorization if they are not selected in the H-1B lottery. Exploring alternative sponsorship options, such as supporting family-based or self-sponsored petitions, could be viable alternatives for a company to retain critical talent and may streamline the process and save time. Finally, recognizing and addressing the needs of dependents, such as spouses and children, within the immigration sponsorship process may be determinative to retain valuable talent.

Developing talent

Companies recognize the importance of not just attracting and retaining foreign talent but also developing their skills and potential. With strategic planning, immigration strategies can help advance the capabilities of international talent within a corporate setting.

Demand for H-1B visas has increased while the number of available visas has remained static. In response, employers are assisting international talent to develop their credentials to become eligible for an O-1 visa as an alternative. The O-1 visa for individuals with extraordinary abilities allows companies to support foreign workers in advancing their careers by recognizing their exceptional talent and contributions. Although the standard to qualify is high, for many foreign workers there are specific steps they can take to proactively bolster their resume toward becoming “O-1 visa ready.”

Sponsorship of certain visa categories, such as EB-1A for individuals with extraordinary ability or a National Interest Waiver to bypass the requirement to test the labor market, may encourage innovation and leadership among an employer’s foreign workers. Elevating a green card process to a higher preference category generally accelerates the process and the prospect of a higher preference category may lead foreign nationals to excel in their fields, drive innovation, and propel critical progress for the company.

Multinational employers are increasingly implementing international rotational programs and cross-border exchanges to foster skill development and broaden experiences. This approach not only addresses internal labor shortages but also mitigates the need for expensive talent searches and replacements. These programs offer benefits akin to longer-term assignments, facilitating knowledge transfer and nurturing company culture at a reduced cost. Such exposure can empower foreign workers with diverse market insights, enriching their skill sets and fostering a global perspective. Moreover, it allows businesses to harness internal expertise to bolster critical initiatives. However, the rise in popularity of these short-term rotation and remote work programs may invite heightened compliance measures, including increased audits and inspections. Hence, employers should anticipate a trend towards more rigorous immigration requirements aligning with labor, tax, and social security laws.

Domestic Visa Processing – Application Slots Now Available

On January 29, 2024, the Department of State’s stateside visa pilot renewal program began accepting DS-160s for qualifying individuals seeking to renew their existing H-1B visas while they are in the United States. As discussed in our previous blog post about this new program, the program allows individuals in the United States who are renewing an H-1B visa issued by US consular sections in Canada between 1/1/2020 and 4/1/2023 or one issued by US consular sections in India from 1/2/2021 and 9/30/2023 to do so online through the Department’s CEAC website rather than having to travel outside the US to obtain the visa.

Under the pilot program, each week for five weeks the Department will release 4000 application slots—2000 for applicants whose most recent H-1B visa were issued in Canada, and 2000 for those whose most recent H-1B visas were issued in India. If all designated slots are filled before the next week’s allotment becomes available, the Department will lock the portal until the next group is released. Applications can be submitted online at https://travel.state.gov/content/travel/en/us-visas/employment/domestic-renewal.html, where you can also find program FAQs published by the Department of State.

The first group of application slots was released on Monday, January 29. Later groups will be released on February 5, February 12, February 19, and February 26. The program will end when all available slots are filled or on April 1, 2024, whichever happens first.

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January 2024 Update: US Department of State Announces Pilot Program for Stateside H-1B Visa Renewals

On January 18, 2024, the Department of State published an online tool that H-1B visa applicants can use to determine if they are eligible for the stateside visa renewal pilot program. Over time, it is likely that the Department of State will expand eligibility. We expect the online tool for the program described below to be updated as the program expands.

Domestic Visa Renewal Eligibility Assessment

In December 2023, the US Department of State announced a pilot program for stateside renewal of certain visas. For the first time in nearly two decades, a limited number of H-1B nonimmigrants will be able to renew their visas from within the United States.

All nonimmigrant visas are currently issued by US Embassy and Consular officials outside of the United States. Beginning on January 29, 2024, the State Department will begin allowing certain nonimmigrants to renew their expired and expiring visas inside the United States. Applicants meeting the requirements of the program may submit an online application between January 29 and April 1, 2024. This is welcome news as visa processing at Consulates and Embassies abroad has become increasingly unpredictable and fraught with delays.

This is a pilot program that will be available on a very limited basis initially. However, the State Department has indicated a desire to expand the program after the pilot allows for the resolution of any operational issues.

This pilot program will allow for limited renewal of nonimmigrant visas in the United States. Eligibility will be limited to applicants who(se):

are renewing H-1B visas (H-4 and other visa classifications are not part of the pilot program);
prior H-1B visa being renewed was issued by either:
Mission Canada (i.e., US Consular posts located in Canada) with an issuance date from January 1, 2020 through April 1, 2023 OR
Mission India (i.e., US Consular posts located in India) with an issuance date of February 1, 2021 through September 30, 2021;
are nationals of countries which are not subject to reciprocity fees for H-1B visas;
are eligible for a waiver of the usual in-person interview requirement;
have submitted ten fingerprints in connection with a previous visa application;
prior H-1B visa does not contain a “clearance received” notation;
does not have an ineligibility basis that requires a waiver prior to visa issuance;
10.has an approved and valid H-1B petition;
11.was most recently admitted to the US in H-1B status;
12.is currently maintaining H-1B status in the US;
13.period of authorized H-1B admission has not expired; and
14.intends to reenter the US in H-1B status after temporary travel abroad.

Beginning January 29, 2024, eligible applicants may submit an application online through the State Department website. The State Department will allow approximately 4,000 applications each week, with 2,000 for applicants whose prior H-1B visas were issued by Mission Canada, and another 2,000 for applicants whose prior H-1B visas were issued by Mission India. Once the application limit has been reached, the application portal will be locked until the next allotment of application slots are released based on the schedule. On each Monday in February, the website will reopen for new submissions. The application period for the program will end the earlier of when all available application slots have been filled, or on April 1, 2024.

Applicants will be asked to complete an online application including:

a self-assessment of eligibility for the pilot program;
a Form DS-160 online visa application;
payment of the $205 non-refundable Machine-Readable Visa (MRV) fee; and
required documents, including:
- a properly completed, electronically filed Form DS-160;
- one photograph meeting Department of State specifications;
- original passport, valid for at least 6 months beyond the visa application date;
- original or copy of current Form I-797 Notice of Action (H-1B approval notice);
- original or copy of the applicant’s Form I-94 (available online here); and
- fee payment confirmation.

Processing time is expected to be approximately 6 to 8 weeks, with visaed passports returned to applicants via US postal service or courier. All documents must be submitted by April 15, 2024. The State Department aims to complete processing of all applications under this pilot program by the program’s conclusion date of May 1, 2024.

Prior to 2004, the State Department ran a similar program, allowing for H, L, O, I, E, and P visas to be renewed by mail through a State Department office in Washington, DC. Visa revalidation in the US was terminated in July 2004 due to the State Department’s inability to collect biometric data in the US as required by post-9/11 security enhancements.

The return of this program, and the ability of participants to secure a needed visa before departing the United States, will help alleviate the uncertainty associated with foreign travel for those who must secure new visas while abroad in order to return to the United States.

February 2024 Visa Bulletin: Advancement of Priority Dates for Employer-Based Petitions Remains Minimal

U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State have not indicated significant advancement in the priority dates for employer-based immigrant petitions, continuing the fiscal year (FY) 2024 trend of long wait times for immigrant visas.

Quick Hits

USCIS and the State Department reported minimal movement in the EB-2 and EB-3 categories for Mexico, the Philippines, and all other chargeability areas except India and China.
USCIS authorized use of the Dates for Filing chart.
Continued limitations on immigrant visas particularly impact chargeability areas of India and China where employers and individuals had hoped to take advantage of shorter wait times in the EB-1 category.

The February 2024 Visa Bulletin

USCIS will continue to use the Dates for Filing chart in the February 2024 Visa Bulletin in determining eligibility for I-485, Application to Register Permanent Residence or Adjust Status, filings. The Dates for Filing chart reflects priority dates anticipated to become current during the fiscal year, whereas the Final Action Dates chart reflects priority dates considered current and available for the specific month. This means that while an applicant may file the I-485 based on the Dates for Filing chart, the application will not be adjudicated at least until the applicant’s priority date becomes current on the Final Action Dates chart.

In summary, there is no advancement in final action dates for China and India in all employment-based categories except that the Other Workers category for India has advanced by one month. For all other chargeabilities, Mexico, and the Philippines, the EB-1 category remains current, the EB-2 category advances by fifteen days, the EB-3 category advances by one month, and the EB-4 Certain Religious Workers category remain the same.

The Final Action Dates chart is shown below.

Source: U.S. Department of State, February 2024 Visa Bulletin

USCIS has confirmed its continued use of the Dates for Filing chart for adjustment of status filing purposes. However, the dates for filing remain the same as in the January 2024 Visa Bulletin in all categories for all countries.

The Dates for Filing chart for employment-based categories follows below.

Source: U.S. Department of State, February 2024 Visa Bulletin

Impacts of Immigrant Visa Backlogs, Slow Movement, and Retrogression: EB-1 Considerations

In the January 2024 Visa Bulletin, we saw some forward movement in certain employment-based categories, particularly in the EB-1 category. This movement aligned with the hope that all EB categories, including the EB-1 category, would advance significantly or at least steadily. USCIS and the State Department had also indicated holding this hope in the August 2023 Visa Bulletin. However, the Visa Bulletins for October 2023, November 2023, December 2023, and January 2024 showed slow movement, with the Visa Bulletin for February 2024 indicating little to no movement at all.

The lack of advancement in priority dates particularly impacts those chargeable to India and China. While those chargeable to India and China have historically experienced long green card wait times in the common categories of EB-2 and EB-3, many employers and individuals choose to pursue the EB-1 category in hopes to secure the green card in a much shorter time. The benefits to an employer if a sponsored employee receives a green card earlier is that there is a reduction in immigration costs and a reduction in time that an employer would be beholden to immigration regulations. The employer can also rest assured that their talent can be retained beyond the limits of a nonimmigrant visa status.

However, despite the retrogression of the EB-1 categories for China and India, there still stands a benefit that visa availability wait times for the EB-1 category remains much faster than any other category. Employers considering pursuing the EB-1 process for their employees may want to note that the EB-1 holds an extremely high standard. The EB-1 is generally reserved for highly talented individuals who have risen to the top of their field or individuals who will work in a managerial capacity in addition to meeting other narrow criteria.

Another Government Shutdown Looms: What It Means For Employers With Foreign National Employees

Only two days before the deadline in November 2023, the U.S. Senate passed a temporary budget to fund federal agencies through Jan. 19, 2024, marking the first time since 2012 that Congress entered a holiday season without the threat of a December shutdown. Now, following the start of a new year, lawmakers have less than two weeks to advance a recent spending agreement and reach a more permanent solution.

The November 2023 vote marked the second time Congress extended the budget for fiscal year 2023, which expired in September, to avert a government shutdown.

IMPACT ON IMMIGRATION

For employers, immigration funding and legislation are top of mind whenever a shutdown looms. Each time the government is on the verge of a shutdown, employers must identify cases that are affected and attempt to locate an avenue to mitigate the impact of the potential shutdown. This increases costs and reduces efficiency, among other complex consequences.

During the 2019 government shutdown, the U.S. Department of Justice suspended 60,000 hearings for non-detained migrants, causing significant delays in the immigration system. Rescheduling an appearance on the immigration docket can often take years, leaving migrants and their families to wait in uncertainty in the interim.

On the employment-based side of immigration, a mad dash ensues each time a government shutdown becomes imminent because applications made to the Department of Labor that are critical steps in both nonimmigrant and immigrant visa categories come to a halt. With already lengthy processing times, foreign national beneficiaries and their employers cannot afford to wait 90 days, as we saw in 2019, for government processing to resume.

Employers and their legal teams would be wise to shift their focus during these times to pushing forward the submission of as many Labor Condition Applications (LCAs), permanent labor certification applications (PERM), and prevailing wage determination requests as possible. A missed window of opportunity can result in years-long delays, or worse, the loss of work authorization, for critical foreign national talent in the U.S.

HOW TO PREPARE

With deadline déjà vu, now is the time for employers to prepare. Employers should consider the following three actions:

1) Submit Labor Condition Applications for all foreign nationals with a nonimmigrant visa (NIV) status expiring within the next six months, should the relevant nonimmigrant visa category require an application, such as for H-1B, H-1B1, and E-3 visa classifications

2) Submit Prevailing Wage Requests for all initiated PERM processes

3) File any PERM applications of individuals for whom the requisite recruitment steps and waiting periods have been completed

United States | Roundup: Immigration Policies Update in Final Weeks of 2023

Federal agencies announced several important changes to immigration programs in the last two weeks of 2023, including the details of a new domestic visa renewal program, the extension of interview waiver authorities and premium processing fee hikes. For those who missed any of the announcements, here’s a roundup of key developments:

Domestic visa renewal: The State Department will allow a limited number of H-1B holders to renew their visas in the United States under a new pilot program, the details of which were published Dec. 21, 2023. The pilot will begin Jan. 29 and will be open to 20,000 H-1B visa holders whose previous visas were approved in certain time frames by U.S. visa processing posts in Canada and India. Read BAL’s full news alert here.
Interview waiver authorities: On Dec. 21, 2023, the State Department announced that it would extend interview waiver authorities for certain nonimmigrant visa applicants. Under the updated policy, which took effect Jan. 1, consular officers will have the authority to waive interviews for (1) first-time H-2 visa applicants and (2) other nonimmigrant visa applicants who were previously issued a nonimmigrant visa in any classification (other than a B visa) and are applying within 48 months of their most recent nonimmigrant visa’s expiration date. Applicants renewing a nonimmigrant visa in the same classification within 48 months of the prior visa’s expiration date continue to be eligible for an interview waiver as well. Read BAL’s full news alert here.
Premium processing fees: U.S. Citizenship and Immigration Services will increase premium processing fees on Feb. 26. Under a regulation published Dec. 28, 2023, premium processing fees will increase by about 12% to account for inflation. Read BAL’s full news alert here.
Schedule A input: On Dec. 20, 2023, the Department of Labor asked for public input on whether to revise its list of Schedule A job classifications that do not require permanent labor certification. Read BAL’s news alert here.
F and M student nonimmigrant classifications: USCIS issued policy guidance Dec. 20, 2023, regarding the F and M student nonimmigrant classifications, including the agency’s role in adjudicating applications for employment authorization, change of status, extension of stay and reinstatement of status for these students and their dependents in the United States. Find USCIS’ updated policy guidance here. Read BAL’s news alert here.

Additional Information: The Biden administration’s top regulatory priorities on employment-based immigration in 2024 include H-1B and H-2 modernization, fee hikes and changes to the green card process, according to the Department of Homeland Security’s regulatory agenda published in December.

State-Side H-1B Visa Renewal to Begin Jan. 29, 2024

The Department of State (“DOS”)’s pilot program for domestic H-1B visa renewals will begin on January 29, 2024, and run through April 1, 2024. As H-1B visa applicants accepted into the pilot program will no longer need to incur the time and expense of applying to renew their visas through a U.S. Consulate abroad, this is a much anticipated and welcomed advancement. This is the first time since 2004 that the DOS is revisiting stateside visa renewal, as the domestic visa renewal process was discontinued, forcing applicants to apply for visa renewals abroad.

The new pilot program is limited to individuals who have previously submitted fingerprints in connection with a prior visa application, and who are eligible for a waiver of the in-person visa interview. Applicants who want to participate in the pilot program will be subject to the eligibility requirements, timeline for implementation, and procedural requirements outlined below.

Eligibility requirements:

The applicant must be seeking to renew an H-1B visa. The DOS will not process applications for other visa classifications including H-4 visas for spouses and dependent children.
The applicant’s prior H-1B visa must have been issued either by a U.S. Consulate in Canada between January 1, 2020, and April 1, 2023, or by a U.S. Consulate in India, between February 1, 2021, and September 3, 2021.
The applicant must not be subject to a non-immigrant visa issuance fee (i.e., a reciprocity fee).
The applicant must be eligible for a waiver of the in-person interview.
The applicant must have been previously ten-fingerprinted by the DOS in connection with a prior visa application.
Any prior visa issued to the applicant must not have a “clearance received” annotation.
The applicant must not be subject to any grounds for a visa ineligibility that would require a waiver prior to visa issuance.
The applicant must have an approved and unexpired H-1B petition from U.S. Citizenship and Immigration Services (“USCIS”).
The applicant must have been recently admitted to the United States in H-1B status with an admission period that has not expired at the time of application, and be currently maintaining H-1B status in the United States; and
The applicant must intend to re-enter the United States in H-1B status after any temporary travel outside the United States.

Timeline for Implementation:

The pilot program will accept applications from January 29, 2024, through April 1, 2024, subject to the following timelines:

Approximately 2,000 slots for applicants whose H-1B visas were issued by a U.S. Consulate in Canada, and approximately 2,000 slots for those whose H-1B visas were issued by a U.S. Consulate in India, will be released on a weekly basis.
Visa slots will be released on January 29, 2024, February 5, 2024, February 12, 2024, February 19, 2024, and February 26, 2024.
Once all slots are filled in a given week, the DOS will not accept additional applications until the next release date.

Applicants who apply, but are determined to be ineligible, will have their applications returned unadjudicated, but will not be refunded the visa application fee.

Application Procedures and Processing Times:

Applicants must follow the procedures below to apply under the pilot program:

Online application required. Instructions will include directions on where to mail a passport and supporting documents.
Estimated processing times of six to eight weeks. Expedite requests will not be considered.

It is important to note that an H-1B visa issued domestically under this program does NOT provide lawful H-1B status and employment authorization in the United States or an extension of H-1B status. An H-1B visa issued under this program only serves as a “ticket” to apply for admission to the United States in H-1B status the next time the applicant travels internationally and does not govern the H-1B visa holder’s authorized period of stay and employment in the United States.

While the DOS’ pilot program is preliminary and limited in time, the program does present an encouraging step toward more efficient visa issuance and may help tackle the lengthy processing times experienced by many visa applicants at U.S. Consulates worldwide. However, the eligibility requirements for this program are very specific, limited to only H-1B visa applicants who meet a long-list of requirements.

Category: Immigration

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