Immigration and Visas – Page 2

May 15, 2023

Immigration Restriction Cuts Nurse Supply

?Americans consistently rate nursing as the most trusted profession, yet health care providers continue to struggle mightily when it comes to recruiting people to fill thousands of open nursing positions.

Now, that struggle promises to get worse. The U.S. State Department has halted access to green cards for foreign workers—a move that cuts off an important pipeline for U.S. health care providers to hire nurses from other countries. A government-issued green card enables citizens of other nations to permanently live and work in the U.S.

The American Association of International Healthcare Recruitment (AAIHR) says the government-imposed freeze means that only those nurses who filed a green card petition before June 2022 can proceed with the green card process. A petition is a precursor to a formal application. Nurses who submitted a petition after June 2022 are now stuck in a holding pattern.

“American hospitals, particularly those serving rural populations, would have collapsed long ago without the contributions of international nurses,” registered nurse Patty Jeffrey, president of AAIHR, said in a news release.

Because of the freeze, nurses who submit green card petitions this summer likely won’t be able to come to the U.S. until at least 2025, according to the AAIHR.

The green card freeze will likely complicate an already dire situation.

A 2022 study from consulting giant McKinsey & Co. predicts the U.S. could experience a shortage of 200,000 to 450,000 nurses by 2025. Much of that projected shortage is being driven by a departure of many nurses from the profession; an estimated 100,000 nurses left the workforce during the pandemic, found the National Council of State Boards of Nursing. Going forward, 30 percent of nurses say they’re likely to leave their career due to the pandemic, according to a survey from health care staffing agency AMN Healthcare, and 18 percent indicate they’re inclined to retire due to the pandemic.

To make matters worse, the number of students enrolled in U.S. nursing programs that award bachelor’s degrees fell 1.4 percent in 2022, ending a 20-year streak of enrollment growth in programs to train registered nurses, according to the American Association of Colleges of Nursing. Enrollment also declined in master’s degree and doctoral programs for nurses.

To help shore up the supply of nurses, many U.S. health care providers have relied on nurses from other countries. Foreign-born nurses make up about 15 percent of the U.S. nursing workforce. They’re able to permanently live and work in the U.S. if they’re approved for an EB-3 visa, an employment-based green card.

Detroit-based Henry Ford Health is recruiting nurses from the Philippines to help fill open positions. The health care system employs about 6,500 registered nurses and has about 400 openings for nurses.

Henry Ford Health expects to bring aboard about 500 to 600 nurses from the Philippines by the end of 2025. However, the State Department’s move could stymie those efforts.

“The State Department freeze on visas for international nurses is not unexpected, but it is painful to Henry Ford Health and organizations across the country who are trying to stabilize their nursing workforce,” said Eric Wallis, senior vice president and chief nursing officer at Henry Ford Health. “We had hoped to begin welcoming groups of international recruits this summer. Right now we’re concerned that the process could be on hold until at least October.”

An estimated one-third of foreign-born nurses in the U.S. are from the Philippines. Why does the U.S. attract so many Filipino nurses? Substantially better pay and benefits. Other drivers include unsafe working conditions and chronic understaffing in their home country, according to the Journal of Public Health.

Andrew Limouris is founder, president and CEO of Medix, an international staffing organization that recruits skilled workers in the health care, science and IT industries. He said the green card freeze will only worsen a nursing shortage prompted by a lack of nursing faculty, along with burnout and retirements.

“From my lens of the world, there are so many pressures on the nursing community, and the ability to bring in foreign nurses to support some of these areas of pressure would only prove advantageous,” Limouris said.

The freeze also could push foreign-born nurses toward opportunities outside the U.S., he said.

“If these nurses are determined and want to make a living, they can and will find another way to do it, and that might mean taking their talents to other countries,” Limouris said.

Amid the green card restrictions, how can health care employers recruit more nurses? Limouris and others offer these suggestions:

Double down on tapping into local talent pools.
Commit to robust benefits.
Provide flexible schedules.
Offer hiring bonuses.
Speed up the time it takes to pay nurses.
Encourage partnerships to beef up the faculty ranks in nursing programs.
Accelerate the time it takes to earn a nursing degree.
Support apprenticeships for nursing assistants.
Recruit more men to the nursing profession. Men represent roughly 10 percent of nurses in the U.S.
Embrace technology that eases the workload of nurses.
Consider using “nurse on demand” apps to ensure adequate staffing.

“Health care employers and recruiters need to lock arms and work together to create job opportunities that are attractive to a diverse population of providers, clinicians and technicians,” Limouris said.

John Egan is a freelance writer based in Austin, Texas.

May 4, 2023

USCIS Receives Record Number of H-1B Registrations

?U.S. Citizenship and Immigration Services (USCIS) announced that it received 758,994 registrations for fiscal year (FY) 2024 H-1B cap-subject visas, setting a record—and raising questions about employer fraud.

The agency selected 110,791 registrations to meet the annual H-1B quota of 85,000, equaling a 14.6 percent chance of selection—a new low. USCIS chooses more than the annual numerical limit to allow for applications that aren’t approved. USCIS has notified the selected employers, who have until June 30 to submit a full H-1B cap petition for adjudication.

A record-breaking number of registrations is not surprising, but the agency’s announcement about significant potential fraud committed by some employers was startling.

Critics of the H-1B lottery program have long suspected that employers have been trying various ways to game the system, from submitting multiple applications for the same person to setting up a structure of contract or consulting-vendor arrangements to file for the same person. But this year, the number of ineligible registrations submitted by multiple employers conspiring together was so high that the problem was publicly addressed.

USCIS said “several dozen small technology companies” colluded to submit registrations for the same 96,000 workers—totaling 408,891 entries—to try to boost their odds of selection in the H-1B lottery. More than half of the total entries are suspect, but the 350,103 eligible entries are still a record, compared with 309,241 last year.

“This data illustrates the need to modernize the U.S. immigration system as stated in SHRM’s 2023 workplace immigration research and policy recommendations. Issuing additional employment-based visas in all categories would ensure that petitioners do not attempt to game the system,” SHRM said.

The numbers show that “even excluding beneficiaries with multiple potential employers, over 75 percent of H-1B registrations would not have resulted in a high-skilled foreign national gaining H-1B status to work in the United States,” said Stuart Anderson, executive director of the National Foundation for American Policy, a public policy research organization based in Arlington, Va. “The attention given to multiple registrations may lead to overlooking the larger issue. The low annual limit on H-1B petitions remains the most serious problem confronting employers attempting to secure foreign-born talent.”.

Immigration attorney Andrew Wilson agreed. “It is becoming more and more difficult to rationally explain our H-1B cap lottery system,” said Wilson, a partner at Lippes Mathias and co-leader of the firm’s immigration practice in Buffalo, N.Y. “How does the volume of registrations justify such a small cap of 85,000 each fiscal year? The numerator stays the same, but the denominator keeps growing and has more than doubled in two years. That math simply does not work anymore for such an important component of our immigration system.”

Wilson said potential solutions include reforming the registration system and raising the H-1B cap.

“Congress acted before,” he noted. “From fiscal years 2001-2003, the cap was increased to 195,000 based on demand. And the demand now is much higher than it was then. The backlog of unselected applicants will continue to grow, and the number of registrations will continue to get larger.”

Anderson said that despite some recent high-profile layoffs, the demand for technology-related positions remains high. “Interest in the visas has stayed strong even despite historic layoffs in the tech sector, in which numerous companies that are heavy users of the H-1B program recently shed tens of thousands of jobs,” he said.

Are Multiple Offers Illegal?

It is unlawful for a single U.S. employer to submit multiple H-1B cap registrations for the same person.

“But there is no technical prohibition on a foreign worker having multiple companies submit a registration on his or her behalf, so long as it is predicated on a legitimate job offer that will be brought to fruition if selected,” said Amanda Goodman, an attorney in the Austin, Texas, office of Ogletree Deakins. “Nevertheless, USCIS views the actions of these companies as circumnavigating the lottery system by design, with the express purpose of inflating numbers.”

Goodman added that USCIS says it is investigating and referring individuals or employers that submitted false attestations to federal law enforcement agencies for potential criminal prosecution.

“USCIS has confirmed its intent to disqualify registrants, including those already selected, if they have engaged in fraud to increase their chances of selection,” she said. “USCIS also confirmed that the agency may deny a petition or revoke an approval if it finds that the registration contained a false attestation.”

In the long term, USCIS is working on an H-1B modernization rule, which in part would reform the H-1B registration system, Goodman said. An increased registration fee—from the current $10 to $215—is likely to be in effect by next year’s lottery.

“It has been contemplated that the current fee does not sufficiently disincentivize duplicate applications,” she said.

Experts agree that the relative ease of electronic pre-filing registration—in place since the FY 2021 season—has made the process much more user-friendly, driving up registrations and decreasing the chances of selection.

Another Chance May Be Coming

The allegations of fraudulent filing may be good news to the many employers unable to meet their employment needs. That’s because a second lottery could be conducted if USCIS finds enough duplicate entries among the selected registrations.

However, it is unlikely that a decision on a second lottery will be announced until after the petition filing period for selected registrants closes in July.

May 2, 2023

FY 2024 H-1B Data Underscores Need for Modernization of the US Immigration System

?On April 28, U.S. Citizenship and Immigration Services (USCIS) issued an update on the FY 2024 H-1B electronic registration process. The electronic registration process was implemented in 2020, beginning with the FY 2021 H-1B cap.

Historically, employers filed their full, and often voluminous, H-1B cap-subject petitions with USCIS during a five-day filing period, after which USCIS would select eligible petitions through a random process. This process resulted in unnecessary paperwork and incurred mailing costs for both petitioners and the agency. By streamlining the H-1B cap selection process with an electronic registration system, USCIS created cost savings and efficiencies for petitioners and the agency.

However, data released from the FY 2024 H-1B period shows the process needs to be modernized as there was a significant increase in the number of registrations submitted compared with prior years. There were more than 780,884 registrations and only 110,791 selections, a 147 percent increase in multiple registrations from last fiscal year.

This has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary, therefore increasing one’s chances of selection. Based on evidence from the FY 2023 and FY 2024 H-1B cap seasons, USCIS has undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating law enforcement referrals for criminal prosecution.

This chart shows registration and selection numbers for fiscal years 2021-2024 (as of April 24).

Cap Fiscal Year	Total Registrations	Eligible Registrations*	Eligible Registrations for Beneficiaries with No Other Eligible Registrations	Eligible Registrations for Beneficiaries with Multiple Eligible Registrations	Selections**
2021	274,237	269,424	241,299	28,125	124,415
2022	308,613	301,447	211,304	90,143	131,924
2023	483,927	474,421	309,241	165,180	127,600
2024	780,884	758,994	350,103	408,891	110,791

*The count of eligible registrations excludes duplicate registrations, those deleted by the prospective employer prior to the close of the registration period, and those with failed payments.

**The number of selections was smaller in FY24 than in prior years primarily due to (a) establishing a higher anticipated petition filing rate by selected registrants based on prior years; and (b) higher projected Department of State approvals of H-1B1 visas, which count against the H-1B cap.

This data illustrates the need to modernize the U.S. immigration system as stated in SHRM 2023 workplace immigration research and policy recommendations. Issuing additional employment-based visas in all categories would ensure that petitioners do not attempt to game the system.

In addition, the H-1B program is not responsive to labor and market demands. Only 110,791 petitioners were selected, leaving thousands unselected and U.S. employers without access to top global talent.

SHRM looks forward to working with policymakers to advance commonsense policy solutions that remove barriers for U.S. companies to access educated, accessible and legally authorized workers. Last week, SHRM Director of Policy and Partnership Research Kerri Nelson was featured on the BAL Immigration Report podcast to discuss SHRM’s research findings.

April 27, 2023

US Employers View Immigration as a Solution to Labor Shortages

?A majority of employers agree that modernizing the U.S. immigration system will boost economic growth, lessen labor shortages and ensure that the U.S. maintains a competitive edge in attracting and retaining global talent, according to recent research from SHRM.

“As the economy emerges from the pandemic, employers see workplace immigration as a solution to workforce challenges, a driver of economic growth and key to keeping the United States globally competitive,” said Emily M. Dickens, SHRM’s chief of staff and head of public affairs. “Congress has an opportunity to modernize the system and contribute to the long-term success of our economy and our entire workforce.”

SHRM is working toward updating the Immigration and Nationality Act, which governs immigration to and citizenship in the United States.

Key findings from the survey—which included HR professionals working at 2,505 organizations of all sizes representing 19 different industries—include:

73 percent of responding employers agreed that increased immigration encourages economic growth and makes America more globally competitive.
78 percent of employers disagreed that increased immigration would make it harder for U.S. workers to find jobs.
54 percent agreed that the U.S. is losing out on top talent because of its immigration system.
57 percent of organizations reported that they would benefit from an increase in legally authorized workers on visas.
46 percent of U.S. organizations said they are experiencing workforce disruptions because of a shortage of available workers. The organizations most likely to report workforce disruptions because of a shortage of workers are in critical industries like health care (59 percent), manufacturing (58 percent) and education (57 percent).

“There are a really high number of job openings in the U.S. and a really low unemployment rate,” said Julia Gelatt, senior policy analyst at the Migration Policy Institute in Washington, D.C. “That suggests that immigration could be a source of continued labor force growth. At the same time, other high immigration countries around the world are competing for top talent—we’re seeing Canada and Germany increasing their quotas and trying to bring in many more migrant workers to boost their workforces in the face of aging populations.”

As an immigration attorney, Addie Hogan, founding partner at Corporate Immigration Partners in San Francisco, is a witness to how difficult working within the immigration system can be.

“Take the H-1B [visa],” she said. “It’s not easy. It’s expensive. The filing fees are high and will increase. You have to hire a lawyer. Employers are not going to go through that hassle if there is not a need. There is clearly a need for the talent.”

Pain Points

SHRM found that while 96 percent of organizations that have hired foreign-born workers describe their experience with these employees as positive, only 52 percent describe their experience with the U.S. immigration system as positive.

The top two “pain points” that organizations face when working within the U.S. employment-based immigration system are processing delays and unpredictability.

Over half of responding employers (55 percent) agreed that it is risky to invest in foreign-born talent because of the uncertainty in the immigration system and said they would be willing to invest time, effort and resources into pursuing foreign-born talent if there was more certainty in the system.

About 25 percent of responding organizations that do not hire foreign-born talent on employment-based visas said they don’t hire those workers because the process is too burdensome.

“We had processing delays before the pandemic, but the delays ballooned during the pandemic,” Gelatt said. “The government is taking in many more applications than what it can process and complete every month. USCIS [United States Citizenship and Immigration Services] has worked on different ways to find efficiencies, but the backlogs are still pretty bad.”

Hogan said that there has been a little more certainty on the temporary worker side “after the Trump years, where it was really unpredictable.”

Even though there are quotas and not everyone will receive a visa, at least petitions are moving through the process, she said.

“The unpredictability is in the green card process,” she added. “Think of a foreign worker who graduated school here, got an H-1B and begins to set up their life here by applying for permanent residency. It may take 50 years to get a green card.”

Hogan noted that just the first step in the green card process—getting a prevailing wage determination from the Department of Labor (DOL)—is taking up to a year, when it used to take weeks.

“And DOL may deny a case for a typo,” she said. “That’s what makes it so frustrating.”

System Improvements

SHRM research found that employers would like to see these top five improvements to improve access to foreign-born talent:

Enable electronic filing throughout the system. “Electronic filing already exists for the green card process, and it works well,” Hogan said. “I don’t know why the government can’t move to full electronic filing faster. That would be helpful.”
Introduce automatic renewals on a continuous basis.
Provide more guidance from government agencies.
Increase the number of employment visas available. “The 140,000 employment-based green cards available each year is far short of the number of immigrant workers being absorbed by the U.S. economy,” Gelatt said. “There are a lot of migrant workers coming in from other channels, such as the family-based route or through asylum.”
Create a “Known Employer” program that streamlines the process for employers that submit multiple applications. “Employers have told me how duplicative the processes are. They have to send the same information to the DOL and USCIS, and if they are high volume, applying year after year and providing that same information to multiple agencies again and again, how it would make sense to have an upfront preclearance process,” Gelatt said.

” ‘Known Employer’ would be great,” Hogan added. “We file petitions for companies and waste time and resources on a request for evidence for a company that is public and has a known revenue of billions of dollars. Let’s have a database of known employers where the USCIS officer can go in there and check that certain companies are vetted for the process.”

April 26, 2023

Viewpoint: Consider the Immigration Effects of M&As

?There are myriad issues created during corporate mergers and acquisitions (M&As), and many affect foreign national staff’s legal presence and ability to work in the United States.

Most employment-based nonimmigrant visas (NIVs)—unlike permanent green cards—limit the foreign national to working only for the company that obtained authorization to employ the person. Four of the most common NIVs are the H-1B, L-1, TN and E-2.

H-1B Visas

H-1B visas are used to employ professional-level foreign nationals in specialty occupations—such as accountants, computer systems analysts, engineers, scientists and teachers—in the United States.

L-1 Intracompany Transfer Visas

The L visa category is used to transfer foreign employees of qualifying organizations to the United States to continue employment with a parent, branch, subsidiary or affiliate of their foreign employer in a managerial, executive or specialized knowledge capacity. An example would be a U.S.-based company’s France branch transferring someone in this capacity to the U.S.

TN Visas

Citizens of Mexico and Canada are eligible to work in specific professional-level occupations in the U.S. under the provisions of the United States-Mexico-Canada Agreement (USMCA). The list of professions specifically qualifying for TN visa status includes biologists, chemists and engineers.

E-2 Visas

E-2 visas are used to employ individuals who have the same nationality as the company employing them in the U.S. in either management or essential skills positions. Think a Japan-based company’s U.S. branch employing Japanese nationals for these jobs.

Workers in these visa categories can be affected differently in the event of a corporate transaction.

In general, if a foreign national is employed through an NIV and the employer changes by way of an M&A or corporate restructuring, the new employer must obtain approval of a petition to the U.S. Citizenship and Immigration Services (USCIS) before the person is authorized to work for that company. If the person’s legal presence is tied to that employment and the employment ends, the person is at risk of falling out of lawful status in the United States.

Retention of H-1B Status Following Corporate Restructuring

Filing a new H-1B petition is generally not required during a corporate restructuring when the acquiring company is a successor-in-interest. However, this does not apply to an asset purchase or other transaction that does not involve a merger, acquisition, consolidation or spin-off.

When an employer undergoes a change in corporate structure, that successor employer must maintain a public inspection file containing the following:

Each affected labor condition application (LCA) number and its date of certification.
A description of the new employing entity’s actual wage system applicable to H?1B workers who become employees of the new employing entity.
The Federal Employer Identification Number of the new employer.
A sworn statement expressly acknowledging the company’s assumption of all obligations and liabilities reflected in each certified and still effective LCA filed by the predecessor entity. This statement must include the company’s agreement to: 1) abide by the Department of Labor’s H-1B regulations applicable to the LCAs, 2) Maintain a copy of the statement in the public access file, and 3) Make the document available to any member of the public or the U.S. Department of Homeland Security upon request.

In the event of a corporate change of employer that does not involve a merger, acquisition, consolidation or spin-off, such as an asset purchase, a new H-1B petition must be filed with the USCIS. However, the new employer can take advantage of H-1B portability, which allows an H-1B worker to immediately commence employment with a new employer as soon as the new employer files an H-1B petition on that person’s behalf.

L-1 Visa Issues

The L-1 visa program is based on the corporate relationships between the employee’s foreign employer and the company that wants to employ the worker in the United States, making portability available only for those transferring to another member of the same corporate family. The worker would also still have to satisfy the other requirements for L-1 status—that is, previous employment abroad as a manager, executive or in a specialized knowledge position, and similar proposed employment with the new employer. If that relationship no longer exists, the employee will not be eligible for L-1 status.

E-2 Visa Issues

Since eligibility for E-2 status is based on the nationality of the U.S. employer and the employee, a corporate transaction would have to result in the surviving company keeping the same nationality as the worker.

If, using the example above, the Japan-based company’s U.S. branch was no longer Japanese-owned, its E-2 employees would no longer be eligible for that status and would become unable to work for the successor company.

TN Visas

TN workers who experience a change in employer brought on by a change in ownership would require a new application submitted to the USCIS or to the U.S. Customs and Border Protection at a port of entry.

I-9 Issues

In the context of a corporate reorganization or sale, the new employing successor entity may rely on the I-9 Employment Eligibility Verification forms completed by the predecessor. A successor employer is: 1) the same employer at another location, and 2) an employer that continues to employ some or all of a previous employer’s workforce in cases involving a corporate reorganization, merger, or sale of stock or assets.

Because the new employer is liable for any erroneous, incomplete or missing I-9s, many will audit the I-9s in order to ensure there is a current and accurately completed I-9 for each employee.

Conclusion

Those who don’t consider the effects of mergers and acquisitions on the immigration status of foreign national employees do so at the peril of their companies. Ignoring these issues can often lead to an inability to continue to employ these workers and, in some cases, the inability of the workers and their families to remain in the United States. Those engaged in these transactions are best served by reviewing these areas as part of their due diligence.

James Aldrich is an attorney with Dykema in Bloomfield Hills, Mich., where he heads the firm’s immigration team.

April 12, 2023

Court Upholds Work Permits for Spouses of H-1B Visa Holders

?Eligible spouses of H-1B workers will continue to be allowed to apply for employment authorization in the United States after a federal district court upheld a 2015 Department of Homeland Security (DHS) rule.

U.S. District Judge for the District of Columbia Tanya Chutkan held in favor of the rule in a March 23 decision, citing the executive branch’s “longstanding and open responsibility for authorizing employment” for visa holders.

Save Jobs USA, a group representing Southern California Edison IT professionals, had challenged the rule under the argument that the DHS was not legally permitted to issue it.

Accompanying spouses and dependent children of H-1B visa holders are granted H-4 visas, which allow them to reside in the U.S. H-4 visa holders who are spouses were not able to obtain work authorization until 2015, when the Obama administration issued a rule allowing them to apply for employment authorization documents (EADs) if their H-1B spouse was transitioning to legal permanent status.

“With this decision, the court has removed any uncertainty that was associated with the H-4 EAD process,” said Anantha Paruthipattu, founder and principal attorney at Paruthipattu Law Firm, based in Herndon, Va. “The decision is welcome, as it confirms the government’s authority to authorize employment to H-4 spouses.”

In an amicus brief submitted to the court, SHRM stated its support for H-4 work authorization. “This [rule] is vital as it allows for more than 90,000 H-4 visa holders, 99 percent of whom are educated women, to continue contributing their skills, education and talent to our economy and communities,” SHRM said. “The decision came at an opportune time at the close of another Women’s History Month and as the U.S. continues to face a historically tight labor market and competition for top talent. At a time when U.S. businesses are struggling to find vital talent, the U.S. workplace immigration system should not continue to add arbitrary barriers to gaining access to the legally authorized pool of foreign-born workers that U.S. employers need and desire.”

About 40 other companies and organizations added their names to the amicus brief, including Amazon, Apple, the Business Roundtable, Google, Intel, Microsoft and the U.S. Chamber of Commerce.

Case History

In 2015, Save Jobs USA filed a lawsuit challenging the H-4 EAD rule, arguing that Congress never granted the DHS the statutory power to authorize employment.

Chutkan said that contention “runs headlong into the text of the Immigration Nationality Act, decades of executive-branch practice, and both explicit and implicit congressional ratification of that practice.”

The district court initially dismissed the suit, ruling that Save Jobs USA lacked standing to challenge the H-4 rule. However, the suit was revived in 2019 when a federal appeals court reversed the district court’s decision and allowed Save Jobs USA to continue the suit. The litigation was then put on hold until the Biden administration took office, and the parties filed motions for summary judgment that have been pending since 2021.

While the litigation was pending, the affected visa holders have been able to work.

“DHS continued to issue work permits for these workers while the litigation continued,” Paruthipattu said. “By ruling in favor of the H-4 EAD workers, the court essentially removed a cloud hanging over this issue and removed any uncertainty in the matter.”

Paul Hughes, an attorney in the Washington, D.C., office of McDermott Will and Emery, and the author of the amicus brief, said, “The court’s correct analysis follows decades of consistent practice and recognition that the executive [branch] may determine categories of visa holders eligible for employment.”

In response to the plaintiff’s contention that the DHS failed to consider the “negative effect” that the H-4 rule could have on U.S. workers, the court held that “Defendant noted that the H-4 Rule would not result in ‘new’ additions to the labor market because it simply accelerates the timeframe by which [H-4 spouses] can enter the labor market.”

In addition, “Defendant calculated that even if every eligible H-4 spouse took advantage of the rule in the first year, it would amount to less than 0.12 percent of the U.S. workforce. By contrast, Defendant noted that commenters predicting negative impacts on American jobs did not provide any empirical support for that prediction. In light of that data, Defendant concluded that the H-4 rule’s benefits outweighed its ‘minimal’ economic costs.”

John Miano, the attorney representing Save Jobs USA, said the plaintiff would likely appeal.

Meeting a Need

Paruthipattu said that not allowing H-4 visa holders to contribute to the economy when they have demonstrated their willingness to remain permanently in the U.S. would be a lost opportunity. “There is an extraordinarily long delay in the green card process for over-subscribed countries like India,” he said. “These applicants will not be eligible to obtain green card work authorization anytime soon. Though the principal workers may work under the H-1B visa, their dependent spouses—many of whom are qualified professionals with backgrounds in key sectors of need, including health care, IT, teaching and nursing—had previously been left without work permits. The H-4 EAD work rule fills that gap.”

March 16, 2023

SHRM Asks USCIS to Find Efficiencies, Not Raise Fees

?The federal agency in charge of administering the nation’s immigration system should explore more efficient ways to improve services and save costs instead of raising filing fees so drastically, the Society for Human Resource Management (SHRM) said.

SHRM submitted public comment on a recent U.S. Citizenship and Immigration Services (USCIS) proposal to significantly increase filing fees for multiple employment-based immigration petitions and applications.

USCIS heavily relies on user fees instead of congressional funding, and the agency’s latest proposal would represent a weighted average increase in fees of 40 percent. The increased fees would allow USCIS to hire nearly 8,000 new employees to more quickly process new applications and address growing backlogs, as well as fund upgraded information technology resources, the agency said.

“SHRM is supportive of a fee schedule that enables USCIS to adjudicate requested benefits consistently, completed within a reasonable time frame, and in accordance with the law,” said Emily Dickens, SHRM chief of staff and head of public affairs. “However, we are concerned with the proposed fee schedule’s substantial increase in fees for several benefits, particularly for employment-based benefits. SHRM is concerned the proposed increases are not proportionate to the cost of processing these cases.”

USCIS is proposing different fees for different visa classifications. The current base fee of $460 covers all temporary-worker visa petitions using Form I-129—used by employers to petition for guest workers under H-1B, H-2A, H-2B, L-1, O-1 and TN visa classifications. The new filing fees would be:

H-1B visas—$780.
TN visas—$1,015.
O-1 visas— $1,055.
H-2B visas—up to $1,080.
H-2A visas—up to $1,090.
L-1 visas—$1,385.

In addition to the filing fee increases, USCIS is also proposing a new $600 asylum program fee to be paid by all employers sponsoring temporary workers or workers for permanent residence visas. The fee would apply each time an employer used Form I-129 for an initial petition, change of status or extension of stay.

This additional fee is intended to help fund the administration of the nation’s asylum program, which is giving some employers and employer groups pause.

“The proposed $600 asylum fee is, in the view of many businesses, a gross overreach of authority being exercised by the agency,” said Jon Baselice, vice president of immigration policy at the U.S. Chamber of Commerce. “USCIS has never imposed a surcharge as significant as this upon a distinct population of stakeholders for the sole benefit of another group of stakeholders.”

Alternatives to Higher Fees

Dickens pointed out that instead of the proposed fee increases overall, USCIS could instead look “into ways in which efficiencies, pilot programs and changes in the fee structure could be implemented to improve upon services rendered and save costs.”

She outlined alternatives to the proposed fee increases. “SHRM believes that electronic filing for all visa categories and the introduction of automatic employment renewals on a continuous basis are quick solutions that are supported by the business community,” she said. “USCIS’s efforts to deploy e-filing and electronic adjudications are critical first steps to improving efficiency and customer service to address instances where petitioners experience significant delays in the processing of their forms.”

Dickens recommended USCIS consider establishing a permanent “Known/Trusted Employer” program for employment-based visas that eliminates the need for repeated re-adjudication of common multiple petitions from the same company.

“This program would reduce backlogs and mitigate adjudication issues while allowing for sufficient screening to ensure safety and compliance with U.S. laws,” she said.

SHRM has supported a Known or Trusted Employer program for immigration processing for years. USCIS ran a pilot program from 2016-2020.

Dickens also suggested modifying the fee structure at the agency. “USCIS has not applied the responsibility of financing the immigration system among all visa categories equitably,” she said.

“The massive increases without proper cost justification have employment-based immigrant and nonimmigrant visas subsidizing other visa categories and the asylum system. Beyond the inequitable assumption of financial burden, applying a one-size-fits-all cost model to all businesses regardless of size will result in small and medium-size businesses having to forfeit utilizing global talent in their recruitment strategies.”

She said USCIS could consider adopting a tiered approach based on organizational size or a volume discount for employers that file large amounts of applications.

Adverse Impacts

Baselice said the feedback received from members about the proposed fee increases “was overwhelmingly negative.”

He explained that large employers that rely upon a mix of H-1B, L-1 and various employment-based green card workers said the additional costs for their firms would be in the millions of dollars, requiring them to reconsider their workforce planning. Smaller employers, as well as agricultural and seasonal employers of H-2A and H-2B workers may not be able to use the programs at all.

“Smaller firms across a host of industries conveyed that these fee increases will be incredibly harmful to their companies,” he said. “Many of these firms predict that these increased fees will prevent their business from growing, and in the most extreme cases, would have prevented their company from entering the market.”

Baselice agreed that USCIS should improve processing efficiency, including ensuring that adjudicators have received necessary training on agency policies to reduce unnecessary requests for evidence and denials; expanding the availability of online, electronic processing; and addressing premium processing.

USCIS also is seeking to extend the premium processing period from 15 calendar days to 15 business days.

“Businesses strongly oppose this programmatic change, as the reason companies choose to pay extra for premium processing is the significantly shorter time that the company will wait for the immigration benefit request to be adjudicated,” Baselice said. “The premium processing option is relied upon by all sorts of companies who have specific workforce needs that must be met in a timely fashion. Whether it is an H-1B or an L-1 that is needed for a specific project, a group of H-2A workers that need to harvest an unexpected bumper crop, or forestry workers that are needed to prevent the risk of a large forest fire, these services are designed to help companies meet their critical workforce needs quickly. The Chamber implores USCIS to not abandon its calendar-day approach to premium processing.”

March 8, 2023

Comment Period on Immigration Fee Proposal Extended

?Employers intending to comment on the proposal to raise filing fees for many employment-based immigration petitions and applications have a few more days to do so. The original comment period on the proposed rule from U.S. Citizenship and Immigration Services (USCIS) was scheduled to run until March 6 but has been extended until March 13.

The agency proposed the increased fees on Jan. 4, in part to help fund soaring asylum claims at the U.S.-Mexico border.

“It has been reported that USCIS has received negative commentary about the employment visa increases and has decided to extend the comment period for another week,” said Michael Neifach, an attorney in the Washington, D.C., regional office of Jackson Lewis. According to USCIS, the comment period is being extended due to technical issues, he said.

USCIS last adjusted its fees in December 2016. The agency relies on user fees instead of congressional funding and stated that the new fees would allow it to “recover its operating costs, reestablish and maintain timely case processing, and prevent the accumulation of future case backlogs.”

Form Filing Increases

USCIS is proposing different fees for different visa classifications. The current base fee of $460 covers all temporary-worker visa petitions under Form I-129—used by employers to petition for guest workers under H-1B, H-2A, H-2B, L-1, O-1 and TN visa classifications. The new filing fees would be:

H-1B visas—$780

H-2A visas—up to $1,090

H-2B visas—up to $1,080

L-1 visas—$1,385

O-1 visas— $1,055

TN visas—$1,015

“Under the proposed rule, employers hiring high-skilled foreign nationals will pay 70 percent more for beneficiaries on H-1B petitions, 201 percent more for employees on L-1 petitions and 129 percent more for individuals on O-1 petitions,” said Stuart Anderson, executive director of the National Foundation for American Policy, a public-policy research organization based in Arlington, Va.

“Fees for beneficiaries for H-2A petitions for agricultural workers will rise by 137 percent and for H-2B petitions for seasonal, nonagricultural workers by 135 percent,” he said.

Employers filing Form I-140 for employment-based green cards will see only a 2 percent filing fee increase from $700 to $715.

Another significant increase in fees would impact those seeking to adjust their status from temporary to permanent. Filing Forms I-485 (adjustment of status), I-131 (for advance parole) and I-765 for a work permit (unless done electronically), with biometric services, would increase by 130 percent.

Currently, individuals pay a filing fee of $1,225, which covers the adjustment application as well as applications for employment authorization and travel documents and any future renewals for those documents while the adjustment case is pending. USCIS is proposing separate fees for the three forms, adding up to $2,820, not including each subsequent employment authorization and advance parole application, until the adjustment of status is adjudicated.

“This new fee review and proposed rule is definitely an unwelcome proposal for employers, as the USCIS filing fees for many petitions will become more expensive,” said Andrew Wilson, a partner at Lippes Mathias Wexler Friedman and co-leader of the firm’s immigration practice in Buffalo, N.Y. “This could affect budget planning for immigration matters going forward. In addition to higher filing fees, it is an unwelcome proposal because I think it makes things unnecessarily confusing.”

Comments on the proposed rule may be submitted here.

March 1, 2023

White House Takes Action Against Migrant Child Labor

?The Biden administration is launching a task force to more thoroughly vet U.S. sponsors of migrant children and increase efforts to investigate and prosecute cases of child exploitation in worksites across the U.S., over concerns that minors are being forced to work hazardous jobs, according to a White House announcement.

We’ve rounded up articles from SHRM Online and other outlets to provide more context on the news.

Under Pressure to Work

Migrant children, who have been coming into the United States without their parents in record numbers, make up a shadow work force which extends across industries in every state, flouting child labor laws that have been in place for nearly a century, according to a New York Times investigation.

(The New York Times)

Violations on the Rise

The U.S. Department of Labor said it had recorded a 70 percent increase in the number of children illegally employed by companies over the past five years. The increase in unlawful child labor cases has come as the number of migrant minors entering U.S. border custody without their parents has reached record levels.

(CBS News)

Wisconsin Company Fined for Child Labor Violations

A sanitation company in Wisconsin was recently charge with violating child labor laws by employing at least 102 minors in dangerous conditions at 13 meat-processing facilities in eight states, according to a U.S. DOL investigation’

(SHRM Online)

Understand Child Labor Laws

The Fair Labor Standards Act imposes federal restrictions on the employment of children and teens under the age of 18. Employers considering hiring minors must understand the federal and state laws as they relate to the employment of minors.

(SHRM Online)

February 28, 2023

USCIS Officials Say Agency Is Recovering from Pandemic Lows

?U.S. Citizenship and Immigration Services (USCIS) is rebounding from hardships experienced during the COVID-19 pandemic, agency officials told the SHRM Employment Law & Compliance Conference 2023 in Washington, D.C., on Feb. 27.

“The challenges over the last several years have been enormous,” said Elissa McGovern, chief of policy for the Office of the Citizenship and Immigration Services Ombudsman. “We have dealt with pandemic measures, increasing remote work, supply chain issues and inflation. U.S. immigration requires complex navigation that you must be on top of to be successful.”

Doug Rand, senior advisor in the Office of the Director at USCIS, outlined the agency’s recent achievements.

Those include getting agency staffing back to an acceptable level. “There was a major workforce attrition during the last administration that was exacerbated by the pandemic,” he said. “The director set very ambitious hiring goals and the Congress helped with appropriations to hire faster. We are very close to meeting our hiring goals and now have more capacity than we did to do our mission.”

Rand added that USCIS is back on “a very solid fiscal footing.” The fee-funded agency nearly ran out of money as the shutdown of in-person operations in March 2020 due to the COVID-19 pandemic kicked off a destructive spiral. “We have turned that around in the last two years,” he said.

A Win for USCIS

One of the things the agency is most proud of is using all the available employment-based green card visas in fiscal 2022. Congress sets annual limits for the number of family-based green cards (226,000 available annually) and employment-based green cards (140,000 available annually) that can be issued. When family-based visas go unused, they automatically are transferred to the work-based category. But without the agency prioritizing these unused visas, they have sometimes gone to waste in past years. The situation was especially dire coming out of the pandemic.

In fiscal 2021, the number of employment-based visas was increased by more than 120,000, but due to processing delays, USCIS didn’t finish issuing the visas, and more than 66,000 employment-based visas went unused. “It was less than satisfactory,” Rand said.

In fiscal 2022, there were an additional 140,000 employment-based visas due to unused family-based numbers being carried over. This time, Rand asserted, USCIS used every single one.

“We can’t do anything about statutory backlogs,” Rand said, referring to the caps on green cards. “What we can do is make sure that every single green card that is allocated gets utilized. We were bound and determined to utilize every single one this past fiscal year. And we did. It was immensely important to the agency and to the administration.”

Government estimates show that the number of unused visas for fiscal 2023 will be higher than was typical before the pandemic, though lower than in the last two years.

McGovern said that when USCIS focuses on priority areas, there are trade-offs being made. Processing times for some categories increased, for example, she said.

Backlogs Have Been a Bane

Both speakers agreed that severe backlogs continue to plague the agency. Rand said that there are over 8 million pending applications at USCIS, and over 5 million of those are pending beyond their deadlines. By comparison, the backlog was around 2.7 million in July 2019.

“That number was picking up over several administrations, but the system broke in 2020 because of the pandemic and fiscal pressures,” he said. “The agency started hemorrhaging workers. We have been hiring and have begun to turn that backlog around.”

He said that USCIS has expanded premium processing to more case types, has committed to meeting certain deadlines and is using video technology for interviews to cut down on processing times.

The lack of a digital filing option and the continued reliance on paper-based processes have been major contributors to the agency’s immigration case backlog, experts agree.

McGovern recognized the long-gestating digitization efforts at USCIS. “It has taken a long time, but they’re getting it done,” she said. “And while many applications are still paper-based, they have made significant efforts to move to digital. Rest assured that that is coming.”