New Year, New Opportunities: Trends and Upcoming Developments in Immigration Law

2023 saw the rollout of a litany of administrative, regulatory, and executive updates and changes that touch virtually all aspects of the U.S. immigration system, with the impact of these changes expected to be felt in full force in 2024. Employers who engage in routine visa sponsorship, skilled immigrants with extensive experience in their respective fields, entrepreneurs, and investors all stand to benefit from many if not all of these changes and are well served by familiarizing themselves with these policy and regulatory changes, updated immigration trends, and the new opportunities they present.

Expansion of Immigration Pathways for Skilled Immigrants, Entrepreneurs and Investors

On October 30, 2023, President Biden issued an executive order directing DHS to “review and initiate any policy changes” it determined “necessary and appropriate to clarify and modernize immigration pathways for experts in AI and other critical emerging technologies, including O-1A and EB-1 noncitizens of extraordinary ability; EB-2 advanced-degree holders and noncitizens of exceptional ability; and startup founders in AI and other critical and emerging technologies using the International Entrepreneur Rule.” The list of critical and emerging technologies (CET) is extensive and includes, among others, Communication and Networking Technologies; Semiconductors and Microelectronics; AI and Machine Learning; Biotechnology; GPS and Navigation Technology; Digital Identity Infrastructure; Clean and Renewable Energy; Quantum Information; Cybersecurity and Privacy; Financial Technologies; Advanced Manufacturing; Advanced Engineering and Computing. CETs may also include any field that provides “enabling capabilities,” such as “accessible, interoperable, and secure data; adequate test and evaluation infrastructure; and a modernized, technically capable workforce.”

Furthermore, according to recent USCIS data, approvals for EB-2 and O-1 visa petitions continue to rise. In light of these directives and current data, individuals with advanced degrees in STEM-related fields, with extensive experience within their specific industry or field (STEM or non-STEM), or entrepreneurs or startup investors seeking to start a business or expand operations in the United States may benefit from alternative immigration pathways that provide greater flexibility and opportunity to obtain lawful permanent residence in the United States. These include:

  1. The Extraordinary Ability Immigrant Visa (EB-1)
  2. The Outstanding Researcher Immigrant Visa (EB-2)
  3. The National Interest Waiver Immigrant Visa (EB-2)
  4. The Extraordinary Ability Nonimmigrant Visa (O-1A/B)
  5. The Treaty Investor Nonimmigrant Visa (E-2)

H-1B Specialty Occupation Visa Updates

H-1B Modernization Rule: DHS published a Notice of Proposed Rulemaking (NPRM) titled “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers” on October 23, 2023. The NPRM’s goal is to “modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.” The NPRM proposes new requirements for initial evidence for H-1B petitions, codifies USCIS’ deference policy to prior visa adjudications, broadens H-1B Cap exemption eligibility, provides automatic Cap-Gap extensions for F-1 visa holders selected during the H-1B Cap registration process, and limits lottery registrations to one entry per beneficiary (unlike the current system, which permits multiple entries by different companies for the same beneficiary). A fundamental proposed change relates to the H-1B degree requirement, with the NPRM requiring a direct relationship between the necessary degree field (s) and the position’s duties. If implemented in its current form, this new rule would require sponsoring employers to more clearly establish the relationship between an employee’s education and their position. The comment period for the NPRM ended on December 23, 2023, and a final rule is currently under federal review.

Rollout of USCIS Organizational Accounts and Online Filing: On January 12, 2024, USCIS announced the launch of online organizational accounts for non-cap H-1B filings and the fiscal year (FY) 2025 H-1B Cap season. USCIS expects to launch the organizational accounts in February, with online filing of Forms I-129 and I-907 (premium processing) following shortly after that. While the cap H-1B registration process is exclusively available online, petitioners can choose whether to submit the H-1B (cap or non-cap) petition online or by a physical filing with USCIS. Employers with USCIS accounts must upgrade the account by logging in and following the on-screen instructions. USCIS is holding a series of public engagement sessions later this month to provide additional information on these changes.

Alternative Visa Sponsorship Options: A reminder that individuals not selected in the H-1B cap lottery may qualify for other visa or work authorization programs. Some alternatives include, cap-exempt employers, L-1: Employers with a U.S. office and a parent, affiliate, or subsidiary office abroad and O-1 for individuals of extraordinary ability as mentioned above.

PERM Green Card Sponsorship

Application Processing Delays Continue: In 2023, Prevailing Wage Determinations (PWD) and PERM processing times continued to increase significantly, most likely due to changes in the labor market – the DOL typically slows down its processing whenever there has been an increase in layoffs. The National Prevailing Wage Center (NPWC) is taking eight (8) months, on average, to process Prevailing Wage Determinations (PWDs), while the DOL is taking 346 days, on average, to process PERM applications, according to recently published figures. The Office of Foreign Labor Certification (OFLC) has indicated that it expects the number of PERM applications and processing times to continue to increase. Employers wishing to sponsor an employee for a PERM-based green card process should be mindful of these processing delays when deciding when to initiate the sponsorship process.

OFLC Updates on ETA 9089 and PWD Adjudications: In July 2023, the DOL implemented a new ETA Form 9089 and migrated to a new filing system. The new PERM deviates from the prior PERM application in both form and substance, including additional questions and elections for worksite locations and minimum requirements, and provides separate addendums for documenting the employee’s education and experience. Under the new system, PWDs are also automatically imported into the PERM application, eliminating the need to enter information already provided in the PWD. While aimed at improving PERM processing, how the new PERM form and filing system will affect PERM adjudications remains to be seen. In November 2023, OFLC responded to reports of increases in PERM summary denials by indicating that it is focused on adjudicating cases as quickly as possible, with appeals to PERM denials adjudicated on a “first in, first reviewed” basis. However, recent PERM adjudications are still for applications submitted under the old filing system, and decisions on PERM applications submitted in the new filing system are expected in the second half of 2024.

Expansion of Job Posting Pay Disclosure Laws: Employers sponsoring employees for PERM-based green cards should ensure that any PERM-recruitment postings for the sponsored position comply with state and local job posting pay disclosure laws in the area of intended employment. California (2018), Colorado (2021), Connecticut (2021), Hawaii (eff. Jan. 2024), Illinois (eff. Jan. 2025), Maryland (2020), Nevada (2021), New York (2023), Rhode Island (2023), and Washington (2019) have all passed some version of job posting pay disclosure laws. This is in addition to local pay disclosure laws in the District of Columbia (eff. June 2024), Jersey City (NJ; 2022), Cincinnati (OH; 2020), Toledo (OH; 2020), New York City (NY; 2022), Ithaca (NY; 2022), Westchester County (NY; 2022), and Albany County (NY; 2023). The number of job posting pay disclosure laws is expected to rise in 2024.

DOL Request for Comment on Schedule A Expansion: On December 15, 2023, in response to President Biden’s Executive Order on Artificial Intelligence, the DOL issued a Request for Information (RFI) seeking public input on how the DOL may establish a reliable, objective, and transparent methodology for revising the list of Schedule A occupations to include STEM and other non-STEM occupations that are experiencing labor shortages. Schedule A occupations are those that the DOL has predetermined lack sufficient U.S. workers who are able, willing, qualified, and available. Currently, Schedule A occupations only include physical therapists, professional nurses, and immigrants of exceptional ability. Employers wishing to hire a person for a Schedule A occupation benefit from an expedited labor certification process are not required to conduct a labor market test or submit a PERM application with the DOL. An expanded list of Schedule A occupations may benefit employers who routinely sponsor employees for PERM-based green cards. The RFI comment period ends on February 20, 2024.

EB-1 and EB-2 NIW As Alternatives to PERM Green Card Sponsorship: In light of President Biden’s Executive Order on Artificial Intelligence (detailed above), employers should consider sponsoring eligible employees for an EB-1 Extraordinary Ability or EB-2 National Interest Waiver (NIW) green card as an alternative to a PERM-based green card. Supporting an employee in either category allows the employer to avoid submitting a prevailing wage request, conducting a labor market test, or submitting a PERM application with the DOL. EB-1 and EB-2 NIW also provide the employee greater flexibility to change jobs or be promoted, move to new worksite locations, or even switch to a different company within the same corporate umbrella. Eligible employees who may be good candidates for an EB-1 are those with extensive career experience, who have made notable contributions to their industry or field, and who sit in a critical role for the company. Eligible employees who may be good candidates for an EB-2 NIW are those who possess either a U.S. Master’s degree (or foreign equivalent) or a U.S. Bachelor’s degree and five or more years of progressively responsible experience in a STEM-related field and who sit in a critical role for the company.

Dual Intent and Expanded Employment Opportunities for International Students

On December 20, 2023, USCIS issued updated policy guidance for F and M student visa holders, consolidating various rules into one comprehensive document to reduce confusion and increase transparency on eligible activities and restrictions for international students employed in the United States. Among other things, the updated guidance clarifies that F and M students can hold dual intent while in the U.S. by being the beneficiary of a PERM or I-140 immigrant visa petition and still be able to demonstrate an intent to return home when their visa status expires. The updated guidance also emphasizes that F-1 students seeking STEM OPT extensions can be employed by startup companies, so long as the company complies with applicable STEM OPT sponsor requirements, including that they complete and adhere to a STEM training plan, be enrolled and remain in good standing with E-Verify, and compensate STEM OPT employees the same as similarly situated U.S. employees.

E-Verify and I-9 Developments and Enforcement Trends

New Form I-9 and Remote Verification Procedure: On July 21, 2023, the Department of Homeland Security (DHS) announced both the publication of a new Form I-9 and the authorization of an optional, alternative procedure to the in-person, physical examination of documents presented by individuals seeking to establish identity and employment authorization to complete Form I-9. The new Form I-9, among other things, reduces Sections 1 and 2 to a single sheet, moves Section 1 Prepaper/Translator to a separate Supplement A, moves Section 3 Reverification and Rehire to a standalone Supplement B, improves guidance to the List of Acceptable Documents, and adds a checkbox for E-Verify employers who remotely examine Form I-9 documents. Meanwhile, the alternative procedure is available only to employers who are participants in good standing with E-Verify. Employers not enrolled in E-Verify must abide by the physical document inspection requirement in completing Form I-9 for their employees. As a reminder, effective November 1, 2023, companies must also use the 08/01/2023 version of Form I-9. See our earlier Duane Morris Alert for more information on the new Form I-9, alternative verification procedure, and related requirements.

Non-E-Verify Remote Verification Procedure Pilot Program: On August 3, 2023, DHS announced a sixty-day notice and comment period regarding the potential rollout of a remote verification pilot program for employers not enrolled in E-Verify. The Non-E-Verify procedure resembles the E-Verify remote verification procedure but may be limited to employers with 500 employees or less. Employers may also be restricted to using the process to verify documents for fully remote employees or conducting an initial remote verification followed by a later physical inspection of Form I-9 employment eligibility documents. DHS has yet to announce further updates on this program.

E-Verify NextGen Rollout Coming Soon: On July 29, 2023, DHS announced a notice and comment period to solicit feedback on “E-Verify NextGen.” The NextGen system aims to further integrate Form I-9 with the E-Verify electronic employment eligibility confirmation process to create a more secure and less burdensome employment eligibility verification process for employees and employers. Notable features of the new system include allowing employees to create their secured account, resolve E-Verify tentative non-confirmations in advance and directly with DHS, and receive electronic verification responses that can be used and updated with subsequent employers. The new system aims to increase data privacy and accuracy of personally identifiable information for employees and limit the employer’s involvement in the mismatch resolution process to improve the speed and accuracy of the employment verification process. According to DHS, E-Verify NextGen will roll out incrementally throughout 2024.

Department of State

Domestic Visa Renewal Pilot Program: Beginning January 29, 2024, until April 1, 2024, a small number of H-1B visa holders will be able to apply for domestic renewal of their H-1B visas. Rather than visiting a U.S. consular post abroad to get a new visa stamp, eligible participants can mail their passports to a State Department office in the United States. The program is limited to foreign nationals who meet specific requirements, including that their H-1B visas were 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 30, 2021. 20,000 H-1B visa applications will be available, with 4,000 application slots released weekly. The application period will close when all application slots are filled or on April 1, 2024, whichever comes first. Applicants must file Form DS-160 online and begin the process on the State Department domestic renewal website. After assessing this initial pilot program, the State Department is expected to expand it.

Visa Interview Waiver Program Extension and Expansion: The Department of State’s regulations generally require that all visa applicants be interviewed personally but give consular officers discretion to waive that personal appearance if specific criteria have been met. As a temporary measure to address backlogs in visa appointments, the State Department had previously instructed consular officers to waive the visa interview requirement for specific visa categories, and it now has extended its visa interview waiver program indefinitely. The program has also expanded to allow interview waivers for first-time H-2 visa applicants and other nonimmigrant visa applicants who (1) were previously issued a nonimmigrant visa (other than a B visa) and (2) are applying within 48 months of their most recent nonimmigrant visa’s expiration date. Applicants must also meet the following criteria: apply in their country of nationality or residence, have never been refused a visa unless it has been overcome or waived, and have no apparent or potential ineligibility. Individual consular posts may have additional criteria.

Visa Fee Increase Reminder: On June 17, 2023, nonimmigrant visa application processing fee increases went into effect. The fee increases were as follows:

  • Business, Student, and Exchange Visitor Visa (B/F/M/J) application fees increased from $160 to $185
  • Petition-Based Nonimmigrant Visa (H/L/O/P/Q/R) application fees rose from $190 to $205
  • Treaty Trader, Investor, and Specialty Worker Visa (E-1/2/3) application fees increased from $205 to $315.

Other Notable Immigration Policy Updates

Proving Ability to Pay When Porting a Green Card Application to a New Employer: USCIS recently issued a policy guidance on how USCIS analyzes an employer’s ability to pay the proffered wage for immigrant petitions in EB-1, EB-2, and EB-3 immigrant visa classifications in instances when the sponsored worker is changing employer under AC21 portability. In these circumstances, USCIS only reviews facts from the priority date until the filing of Form I-140. This means that the new employer must only provide evidence of its ability to pay the offered salary up to the date that the underlying I-140 was filed by the initial employer, not through the date on which the employee submits a request with USCIS to transfer the job offer to the new employer. As a reminder, USCIS reviews the “totality of the circumstances” when deciding on the petitioner’s ability to pay the proffered wage.

Premium Processing Fee Increase and Proposed Filing Fee Increases: Premium Processing fees related to employment-based visa and green card petitions will increase on February 26, 2024. For most nonimmigrant employment-based visas (H-1B, O-1, L-1, and others) and immigrant employment-based petitions, the fee will increase from $2,500 to $2,805. USCIS is also likely to raise the filing fees for all employment-based visas and add a $600 Asylum fee to help cover the costs of the service’s humanitarian applications.

For More Information:

If you have any questions about any information discussed above, please get in touch with M. Alejandra Vargas, Kristopher W. Peters, Isabella Castellón Lebrón, Ted J. Chiappari, or any of the attorneys in our Immigration Practice Group.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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