The year 2024 will be eventful on immigration policy and includes a presidential election in November and new policies on H-1B visas. Below are the immigration issues to watch.
Changes To The H-1B Lottery
In the proposed H-1B visa rule published on October 23, 2023, U.S. Citizenship and Immigration Services announced plans to change the H-1B selection process, likely in time for the upcoming H-1B lottery in March 2024.
Under current policy, USCIS uses a lottery when companies file more H-1B applications (or registrations) than the annual limit of 85,000 (65,000 plus a 20,000 exemption for advanced degree holders from U.S. universities). In the proposed rule, USCIS said registrations for FY 2024 increased largely due to multiple registrations submitted for the same individuals.
Employers hiring high-skilled foreign nationals must overcome the low annual H-1B limit, which equals only 0.05% of the U.S. labor force. USCIS would have rejected over 75% of H-1B registrations for FY 2024, even if beneficiaries with multiple registrations were excluded from the lottery. H-1B registrations with only one employer increased by 66% between FY 2022 and FY 2024.
Employers have expressed support for the USCIS proposed solution to the multiple registrations issue—selecting H-1B registrations by unique beneficiaries. This was suggested in a May 1, 2023, Forbes article.
“Under the proposed update to the random selection process, registrants would continue to submit registrations on behalf of beneficiaries and beneficiaries would continue to be able to have more than one registration submitted on their behalf,” according to USCIS. “Selection would be based on each unique beneficiary identified in the registration pool, rather than each registration. Each unique beneficiary would be entered in the selection process once, regardless of how many registrations were submitted on their behalf.”
USCIS plans to use passport information to identify beneficiaries, and individuals would select among the employers that submitted H-1B registrations on their behalf.
Will USCIS Keep Restrictive Measures In The Proposed H-1B Rule?
Employers welcomed some measures in the proposed rule, such as “cap-gap” employment protection for international students, but oppose the new ways the government would restrict who qualifies for an H-1B petition. In comments to the rule, the National Foundation for American Policy highlighted two notable restrictions.
First, the rule uses the phrase “directly related specific specialty” to narrow the positions considered specialty occupations. The rule states that to qualify as a specialty occupation the position must require “A U.S. baccalaureate or higher degree in a directly related specific specialty or its equivalent” for entering the occupation. Critics have derided the Biden administration for copying the language from a Trump administration restrictive interim final rule published, which courts later blocked. Attorneys and companies warned in 2020 that the language of the interim final rule would stop many talented foreign-born professionals from working in America. (See here for additional analysis.) The Immigration and Nationality Act (INA) does not say a degree must be in a “directly related” specific specialty.
More than half (51%) of U.S.-born individuals and 18% of temporary visa holders working in computer occupations have a degree other than computer science or electrical engineering, according to an NFAP analysis of the 2021 National Survey of College Graduates. Nearly half (48%) of chemists and 15% of temporary visa holders have a degree other than chemistry.
“It is a common mistake to think there is an exact correspondence between field of degree and occupation in the technical labor force,” said labor economist and NFAP Senior Fellow Mark Regets. “In reality, employers often hire workers who have gained the necessary skills through other coursework and experience. It is unclear how closely USCIS intends to require an exact match between occupational and degree titles, but even assuming they use very broad categories, many current workers with temporary work visas might not meet the new criteria.”
Second, another provision in the rule copied from the Trump administration argues business administration is a “general degree” and would not be sufficient to qualify someone for a specialty occupation “without further specialization.” The language could disqualify individuals with master’s in business and discourage foreign nationals from attending MBA programs in the United States.
The proposed regulation cites the physical sciences as a qualifying body of specialized knowledge. However, one to ten years after their degrees, only 43% of individuals with a master’s degree in physical sciences work in a physical science occupation. That is much lower than the percentage of individuals with master’s degrees in business who work in management and management-related occupations, yet the proposed rule singles out business administration as a “general degree.”
The data show business administration is a specialized field of study. Within one to ten years of earning a master’s degree in business, 79% of foreign-born and 70% of U.S.-born work in management and management-related occupations in the United States. (Source: NFAP analysis of the National Science Foundation’s 2021 National Survey of College Graduates.) Within one to ten years of earning a master’s degree in business, 94% of individuals say their work in a management and management-related occupation is related to their degree.
The restrictions in the proposed rule appear incompatible with attracting AI talent and President Biden’s AI executive order issued on October 30, 2023.
The rule’s restrictions cited above and measures aimed at companies sending H-1B employees to work at customer locations will lead to one or more lawsuits, according to attorneys.
USCIS Fee Increases: How High Will They Go?
On January 4, 2023, USCIS published a proposed rule to raise fees substantially. Among the most controversial elements are a potential Asylum Program Fee of $600 to be paid by employers who file either Form I-129 (Petition for a Nonimmigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker).
USCIS/DHS also proposed to increase the H-1B Electronic Registration Fee for each beneficiary for H-1B petitions from $10, established in 2019, to $215, a 2,050% increase. “DHS understands that an increase from $10 to $215 may appear to be exorbitant at first glance,” according to language justifying the increase in the proposed rule. This would cost employers collectively approximately an additional $100 million annually if registration levels were similar to previous years, according to an NFAP analysis.
Employers would pay 70% more for beneficiaries on H-1B petitions, 201% more for employees on L-1 petitions and 129% more for individuals on O-1 petitions. For adjustment of status, advance parole and a work permit with biometric services fees will increase by 130% (from $1,225 to $2,820).
The final rule is expected to be published in April 2024 or later. If so, higher fees on H-1B registrations would not apply to the H-1B selection process in 2024.
Domestic Visa Renewal Pilot Program Starts
On December 21, 2023, the State Department announced details for a much-anticipated pilot program allowing employees to renew H-1B visas in the United States. (See details here.)
Beginning January 29, 2024, individuals can apply at the Department’s dedicated web address. Only 20,000 visa holders will be eligible, limited to applicants whose H-1B visas were issued within specific dates at U.S. consulates in Canada and India are eligible. As previously reported, the pilot will not include the dependents of H-1B professionals. Employers and employees hope the State Department will include dependents and more visa categories when the pilot is expanded.
DOL May Expand Schedule A
The Department of Labor has not expanded the Schedule A list of occupations since 2004 but announced a Request for Information to solicit input on this topic from the public. DOL is “considering revisions to Schedule A of the permanent labor certification process to include occupations in Science, Technology, Engineering and Mathematics and other non-STEM occupations and invites employers and other interested parties to comment . . . before February 20, 2024.”
If DOL lists a foreign national’s occupation on Schedule A, an employer can avoid labor certification and lengthy PERM processing. That has become more vital. “Today, companies face a 6-8 month process to obtain a Prevailing Wage Determination, and then the request for a labor certification can take just as long. A failure to designate an occupation for Schedule A often means a year-long delay and significant operational costs for the government and the private sector,” said Lynden Melmed of BAL.
Other Regulatory Actions
DHS stated in its regulatory agenda it would publish a proposed rule on employment-based immigration in August 2024. “The proposed rule would, if finalized . . . modernize outdated provisions for individuals of extraordinary ability and outstanding professors and researchers; clarify evidentiary requirements for first preference classifications, second preference national interest waiver (NIW) classifications, and physicians of national and international renown,” among other changes.
DHS also may publish a proposed rule on employment authorization that could benefit spouses of visa holders and individuals on visas who lose their jobs. (Target date: October 2024.)
DHS stated a proposed rule that may increase flexibility for adjustment of status applicants could be published in March 2024.
The Department of Labor said it would publish a proposed rule on H-2B visas, with a target date of October 2024. If the rule is similar to DOL’s H-2A proposed rule for agricultural workers, employers will oppose it.
“A CBP rule that would apply the $4,000 or $4,500 9-11 Response (Pub. L. 114-113) fee to all H-1B and L-1 extension petitions filed by employers subject to the law, instead of only to their initial H and L petitions, is now slated for April 2024, postponed from December 2023,” according to Fragomen.
DACA
A September 2023 District court ruling in Texas declared Deferred Action for Childhood Arrivals or DACA unlawful for new participants but allowed it to continue for current recipients. “In the summer of 2022, the Biden Administration announced a new DACA rule with the intent of further protecting DACA from legal challenges,” according to the Immigrant Legal Resource Center. “The Texas judge found that, like the DACA policy, the DACA rule was also unlawful. This decision is not the end of the DACA litigation, and it will be appealed.” ILRC and other legal observers expect the U.S. Supreme Court to decide the fate of DACA.
The Impact Of An End To Chevron Deference
Legal precedents granting deference to federal agency interpretations have made it difficult for attorneys to challenge USCIS decisions. That could change in 2024. Attorney Carl Shusterman notes the Supreme Court will hear oral arguments on Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. Both cases involve Chevron Deference. “While overturning, or limiting, the Chevron Deference Doctrine will have negative consequences in some areas, it would revolutionize the ability of persons to challenge immigration denials by federal agencies (including USCIS, ICE, CBP, EOIR, etc.) based on restrictive interpretations of U.S. immigration laws,” notes Shusterman.
Legal Challenges To Biden Administration Policies
In November 2023, a federal judge granted a preliminary injunction against the Justice Department after the DOJ filed a lawsuit against SpaceX for discriminating against asylees and refugees. The company argued the agency’s process was unconstitutional. If the court ruling stands, it could provide companies with a powerful defense against Department of Justice immigrant-related employment discrimination lawsuits. The DOJ investigated and reached a $25 million legal settlement over employment discrimination with Apple, even though the company said it observed Department of Labor rules when sponsoring immigrants.
There are at least two other significant lawsuits challenging Biden administration immigration policies, notes Ellen Gilmer of Bloomberg Law. Republican attorneys general filed a motion for a preliminary injunction in a lawsuit to stop parole programs for Venezuela, Cuba, Haiti and Nicaragua, arguing they are unlawful. Republican members of Congress have attempted to stop the parole programs, even though research has shown parole to be much more effective at reducing illegal entry than the enforcement policies proposed in Capitol Hill negotiations.
A lawsuit filed by immigrant and refugee rights organizations argues a recent Biden administration asylum rule is unlawful. The organizations may have a strong case since a plain reading of the law appears to contradict the rule’s restrictions against requesting asylum without an appointment at a port of entry. Negotiations over the border and Ukraine aid could moot the lawsuit by changing the statutory language.
On December 19, 2023, the American Civil Liberties filed a lawsuit against a Texas law to empower state and local law enforcement to arrest and detain individuals they suspect are in the United States without legal status. The ACLU and many legal scholars argue that the Texas law exceeds a state’s authority.
Negotiations On The Border And Ukraine Aid
Congress and the White House reaching an immigration deal that frees up aid to Ukraine is possible but challenging. (See here.) Negotiators have reported progress but no deal. House Speaker Mike Johnson (R-LA) could block a deal or not bring a bill up for a vote, for example, by saying it does not go far enough to restrict immigration. Johnson may have intended to insert a poison pill in the form of immigration measures to end further assistance to Ukraine and avoid dissension among Republican House members. The GOP demands represent the first time one political party has conditioned its support for a significant national security initiative on changing U.S. immigration law.
“Another concern has started to emerge for some Republicans: If they sign on to measures meant to fix the border, they will be assuming some political blame if the flow of migrants doesn’t stop or slow significantly,” reported Michelle Hackman and Lindsay Wise of the Wall Street Journal.
The United States is experiencing a refugee crisis, with more than 7.7 million people leaving Venezuela due to government policies. Most individuals and families from countries undergoing political and economic crises in the region flee desperate circumstances and, finding no way to enter lawfully, cross the border and turn themselves in, which is recorded as a Border Patrol encounter. There is little evidence from the past 100 years that the type of immigration enforcement policies GOP negotiators have proposed will reduce illegal entry and end people’s desires for a better life.
