Undocumented students are waiting for University of California (UC) leadership to issue a plan that would remove hiring restrictions for all UC students, regardless of immigration status.

The proposed plan, titled Opportunity For All (O4All), is supported by language in the 1986 Immigration Reform and Control Act (IRCA) that the prohibition of employment of undocumented workers does not apply to states. As such, O4All advocates believe that IRCA’s employment restrictions do not apply to the state university system. For students who have been denied scholarships or fellowships requiring on-campus employment, teaching assistant positions and other on-campus employment due to their immigration status, the UC plan could allow them to participate in such opportunities.

Legal scholars have noted that U.S. Supreme Court precedent supports UC’s argument that Congress has no power to regulate state governments in some areas, such as employment, unless there is clear language in the statute. IRCA has previously been interpreted to preclude states from employing undocumented workers, but UC’s O4All may challenge this interpretation. The O4All proposal has gained support from Deferred Action for Childhood Arrivals (DACA) recipient students. The DACA program continues to be challenged in the courts.

In the meantime, New York Governor Kathy Hochul proposed issuing state work permits to asylum seekers. Asylum seekers could then be hired by the state, which could then subcontract such employees to other employers. Governor Hochul indicated that the proposal was intended to help alleviate New York’s migrant and workforce crises. Ultimately, however, Governor Hochul said she was constrained by federal law from enacting the plan because she could not “indemnify or protect the employers from any kind of federal prosecution for violating immigration laws.”

Under the asylum system, many asylum seekers must wait for 150 days before they are eligible to apply for work authorization through the federal immigration system. Given U.S. Citizenship and Immigration Services (USCIS) long processing times, applicants often wait for over a year before they obtain work authorization documentation.

Proposals similar to UC’s and Governor Hochul’s proposals have been criticized by some immigrants, who have noted that such plans would provide work authorization to some immigrants faster than others, who have been waiting for work authorization much longer – due to long USCIS processing times or regulatory restrictions.

Jackson Lewis attorneys will continue to monitor the status of the O4All program and provide updates as they become available.

Congress has approved an additional 64,716 H-2B visas for fiscal year 2024, supplementing the 66,000 available annually. As in prior years, restrictions will apply. A temporary final rule has been published in the Federal Register setting out the procedures involved.

H-2B visas for temporary, seasonal nonagricultural workers are used primarily for jobs in tourism and hospitality, landscaping and construction, and food processing. Once the annually available 66,000 visas run out, employers are forced to continue operations without sufficient number of workers. The initial allocation of H-2B visas for FY 2024 ran out on October 11, 2023, just days after USCIS began accepting applications.

The supplemental visas are available to employers who can provide evidence they are suffering or will suffer irreparable harm if they are unable to supplement their permanent staff with temporary H-2B workers. The additional visas are going to be distributed in several allocations throughout the year.   

The plan is to have four allocations:

  • First half of FY 2024 (October 1 – March 31): 20,716 for returning workers with start dates on or before March 31, 2024 (regardless of nationality)
  • Early second half of FY 2024 (April 1 – May 14): 19,000 for returning workers with start dates from April 1, 2024, to May 14, 2024 (regardless of nationality)
  • Late second half of FY 2024: 5,000 for returning workers with start dates from May 15, 2024, to September 30, 2024 (regardless of nationality)
  • For the entirety of FY 2024: 20,000 visas reserved for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, and Haiti without regard to whether they are returning workers

When adjudicating cases for the additional visas, the Departments of Homeland Security and Labor have indicated they will also consider the impact on U.S. workers and make every effort to protect the H-2B workers from exploitation through rulemaking.

Individuals from 89 countries are eligible to apply for H-2B visas. This year, Bolivia was added to the list.

Jackson Lewis attorneys are available to assist in navigating the H-2B process, which involves not only capturing one of the limited number of visas available, but also following complex rules regarding filing dates, labor market tests, visa applications, and proving irreparable harm.

The Transportation Security Administration (TSA) is gearing up for what it expects will be its busiest holiday travel season ever while a potential government shutdown may be days away. Although TSA employees and federal air traffic controllers will be required to work without pay during a shutdown, there could be more “out sick” calls than usual – as there were during the 2019 shutdown. This will lead to longer screening times, flight delays, and cancellations for travelers.

The TSA has some tips for holiday travelers:

  1. Pack Smart. Avoid putting prohibited items in carry-ons. “If you can spill it, spray it, spread it, pump it or pour it, then it is liquid and must be packed in a checked bag.” In other words, gravy, cranberry sauce, wine, and the like cannot go in carry-ons, but cakes and other baked goods can.
  2. Bring Acceptable Photo ID. Check your wallet before you leave your house. There are various photo IDs that are acceptable, but travelers typically bring driver’s licenses or passports.
  3. Arrival. Arrive at least two hours prior to your scheduled flight.
  4. Traveling With Firearms. If you are traveling with firearms, those items must be packed in a hard-sided, locked case in a checked bag and declared at the ticket counter when checking in. The maximum penalty for bringing a firearm to a TSA checkpoint is nearly $15,000. Moreover, bringing a firearm to a TSA checkpoint will result in delays and the loss of TSA PreCheck eligibility for up to five years.
  5. New Screening Technologies. Stay aware of new checkpoint screening technologies – watch the signs. Screening technologies vary from airport to airport. In some airports, you may not have to remove 3-1-1 liquids or laptops from your bags, but you will have to put everything into a bin for screening.
  6. TSA PreCheck. Use it if you can. The online application takes just a few minutes. You will need to schedule an appointment at an enrollment center, and you will receive your membership in three to five days. If you want it, there still may be time before your holiday travel. It costs $78.00 for a five-year membership.
  7. Passenger Support. Call ahead for TSA passenger support if you or your family members need special assistance. Call the TSA Cares helpline toll-free at 855-787-2227.
  8. Questions? If you have questions, text TSA at #275-872 (“AskTSA”) or, on X (formerly known as Twitter) or Facebook, use @AskTSA. An automated virtual assistant is available 24/7, and staff is available from 8:00 a.m. to 11:00 p.m. ET on weekdays and 9:00 a.m. to 8:00 p.m. ET on weekends and holidays.
  9. Awareness. Remain aware of your surroundings and report suspicious activity. “If you see something, say something.”
  10. Courtesy. Be courteous and show gratitude to the frontline workers who are trying to deal with the holiday volume. In other words, be patient during high volume days and times. Pack your patience!

Enjoy the holidays!

On October 30, 2023, President Joe Biden issued an Executive Order regarding the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” The Executive Order (EO) directs departments and agencies throughout the government, including the Department of Homeland Security (DHS) and the Department of State (DOS), to develop plans and policies to establish new standards for artificial intelligence (AI) use.

To this end, the EO calls for DOS and DHS to identify new pathways, and build upon existing programs, to attract and retain the best foreign nationals with AI (and other emerging technologies) knowledge, skills, and education.

This includes:

  • Streamlining visa processes for noncitizens who seek to enter the United States to work on, study, or research AI, including making more visa appointments available for those individuals;
  • Adding highly skilled talent in AI, including J-1 research scholars and F-1 students in STEM fields, to the list of those who will be able to take advantage of the upcoming program to allow visa renewal inside the United States;
  • Consider changes to the DOS’s J-1 Exchange Visitor Program so that those with AI skills can participate in these programs without becoming subject to the two-year home residence requirement which necessarily interrupts their ability to work in the United States;
  • Make appropriations available for programs to identify and attract top AI talent to U.S. universities, research institutions, and the private sector, including overseas educational components to inform top STEM talent of all U.S. visas options available to them;
  • Publish in all relevant languages informational resources, including a comprehensive guide on options for AI experts to work in the United States;
  • Initiate policy changes necessary to modernize immigration pathways for AI experts, including nonimmigrant and immigrant visas for those with outstanding or exceptional ability (i.e., O-1A nonimmigrant visas), EB-1 and some EB-2 immigrant visa petitions, and also target AI experts who are founders of start-ups to use the International Entrepreneur Rule to work in the United States;
  • Continue the H-1B modernization rulemaking process to make sure it supports the ability of those with AI skills to enter the United States and adjust status to permanent residence;
  • Solicit input on how to identify AI occupations for inclusion on the Schedule A list of occupations that have a fast track to permanent residence (“green cards”) because there are insufficient numbers of qualified U.S. workers available in the field.

DHS and DOS are already working on streamlining visa processes by eliminating backlogs, piloting stateside visa processing, and making it easier for those in STEM fields to enter and remain in the United States. With the EO, those in STEM fields, particularly those involved in AI, will be solicited by the United States and may have some additional advantages in terms of immigration opportunities.

Issuance of a Request for Information for possible additions to the Schedule A list is expected within 45 days, with other reports and plans to be issued over the year.

Jackson Lewis attorneys will be closely monitoring implementation of the EO and are available to answer questions you may have about possible new immigration options for AI workers.

USCIS has issued new policy guidance on L-1 intracompany transfer petitions addressing sole proprietorships and Blanket L petitions.

There are two highlights:

  • USCIS has clarified that sole proprietorships cannot file L petitions on behalf of the owner, i.e., the sole proprietor. USCIS distinguishes sole proprietorships from self-incorporated entities such as a corporations or limited liability companies with a single owner. The distinction is that the corporation or limited liability company – even if there is only a single owner – is nevertheless a distinct entity that can file a petition on behalf of the owner. Of course, the sole proprietor may still file an L petition on behalf of one of its employees. This “change” simply codifies the existing policy.
  • Blanket L petitions allow multinational companies that meet certain requirements to transfer employees from overseas to their U.S. offices without the need to file an individual L-1 petition for each employee. A company applying for a first-time Blanket L petition will receive an initial three-year approval. Following the initial three-year approval, a company must apply to extend the Blanket L petition. Once approved, the extension will be valid indefinitely. USCIS has clarified that if a company fails to timely file for an extension of a Blanket L petition, the company does not have to wait three years before asking for an indefinite extension. The three-year wait applies if the extension is denied.

The Department of Homeland Security’s proposed modernization of H-1B requirements would seem to allow entrepreneurs who are company owners to file H petitions in certain circumstances. Those who own a controlling interest could be eligible for an H-1B visa if the owner spends at least 50 percent of their time performing specialty occupation duties, as opposed to ownership or incidental duties. Of course, the H-1B cap limitations may mean that an H-1B visa is not a practical option.

Jackson Lewis attorneys are available to help with visa strategies for sole proprietors and entrepreneurs, including the International Entrepreneur Rule.

USCIS has issued new policy guidance explaining how it determines whether a beneficiary has met the two-year home residence requirement applicable to nonimmigrant exchange visitors in J status.

Individuals in J status come to the United States to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training. At the conclusion of their J-1 status, they generally must spent an aggregate of two years in their home country before being eligible to apply for other immigration benefits in the United States.

Under the new policy, which went into effect immediately:

  • USCIS will use a preponderance of the evidence standard to determine whether the requirement is met.
  • The country of where the requirement must be met will be determined based upon the country listed in the DS-2019, Certification of Eligibility for Exchange Visitor Status.
  • In calculating the two-year requirement, USCIS considers any partial day spent in the required country as a full day.
  • If the beneficiary cannot return to the relevant country due to civil unrest, travel bans, or other similar issues, the USCIS will consider whether the two-year home residence requirement can be waived on a case-by-case basis.
  • Foreign medical graduates (FMGs) who work for three years practicing medicine in a healthcare facility in a designated underserved area can obtain a waiver of the two-year requirement. The new policy guidance clarifies the three exceptions to meeting the waiver criteria:
    • An FMG may practice medicine for three years with the U.S. Department of Veterans Affairs (VA), even if the VA facility is not in a designated shortage area.
    • An FMG may practice clinical medicine for three years employed by an interested federal agency rather than practicing in a designated shortage area.
    • An FMG may practice specialty medicine for three years, as requested by an interested state or federal agency, which demonstrates there is a shortage of the specialty available to patients in the area who will be served by the FMG.

Jackson Lewis attorneys are available to assist all those subject to the two-year requirement, including FMGs, with the process of strategizing for and applying for waivers.

On October 17, 2023, the Department of State (DOS) took the first steps to implement stateside processing of nonimmigrant visas. The DOS notified the federal Office of Information and Regulatory Affairs that it will introduce a pilot stateside processing program on a limited basis in the first quarter of 2024. Those able to utilize stateside processing will not be required to travel to a consulate, providing significant savings of time and cost.

The term “stateside processing” refers to the renewal of nonimmigrant visas for foreign persons present in the United States. Currently, only U.S. consulates located outside the United States can issue visas.

Prior to 2004, the DOS had routinely accepted applications in the United States to renew visas for certain nonimmigrants. When the legal requirement to capture biometrics (i.e., fingerprints and digital photo) from applicants prior to issuing a visa was introduced in 2004, the DOS was left with no practical method to complete stateside processing and the procedure was suspended.

Three factors may have contributed to the reintroduction of stateside processing for the renewal of visas. First, digital technology allows the DOS to capture, store, and transmit biometrics, obviating the need for a nonimmigrant visa applicant to appear in person at a consular post abroad if biometrics already have been provided. This technology already is employed for the visa interview waiver procedures widely in use at U.S. consulates for those seeking to renew certain nonimmigrant visas and those who previously have traveled to the United States as a visitor after registering with the Electronic System for Travel Authorization (ESTA). The second factor is the backlog of visa applications accumulated during the suspension of routine visa processing at U.S. consulates during the early days of the COVID-19 pandemic. Although many consulates have returned to pre-pandemic processing times, others still struggle with backlogs. Finally, the DOS should enjoy significant savings from locating consular officers adjudicating visa applications stateside by avoiding expenses associated with relocation costs and security risks inherent in overseas assignments.

Earlier this year, the DOS signaled its intention to implement stateside processing for the H-1B, H-4, L-1, and L-2 nonimmigrant visa categories by the fourth quarter of 2023. That plan was postponed and scaled back.

Full details of the pilot program await publication of a proposed rule in the Federal Register. It is believed the program also will be limited to H-1B applicants from countries that are not required to pay a separate “reciprocity” fee prior to issuance of the visa. Further limitations similar to those applicable to participants in the Visa Waiver Program may be included. It is expected that, after ensuring the operability of the stateside processing program, the DOS will expand the program to include additional nonimmigrant visa categories.

Look for updates here as the stateside processing of nonimmigrant visa applications is introduced and expanded or contact your Jackson Lewis attorney.

The Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) have announced they will be collaborating and sharing information to improve their enforcement efforts.

Based upon a Memorandum of Understanding (MOU), the agencies are “forming this partnership to encourage greater coordination between them through information sharing, joint investigations, training and outreach.” This means that some typical DOL audits and investigations regarding immigration matters could lead to investigations by the EEOC under, for example, the Equal Pay Act, Title VII of the Civil Rights Act, and Title I of the American With Disabilities Act. It also signals that the agencies are gearing up for more enforcement activity.

The DOL enforces and audits employers regarding their compliance with Temporary Seasonal Visas (H-2A and H-2B visas), H-1B visas, PERM labor certification cases, and prevailing wage determinations, among others. These DOL audits have traditionally sought to confirm that:

  • Employers with H-1B employees are paying the prevailing wage or the actual wage, whichever is higher;
  • Labor Condition Application attestations are being followed;
  • Foreign workers are being offered the same working conditions as U.S. workers and being paid in accordance with immigration filings;
  • Foreign workers are not being required to pay the ACWIA Training Fee; and
  • Public Access Files are being maintained properly.

In conducting these audits, the DOL is required to review the employer’s payroll and private records. Under this new MOU, if the DOL finds evidence of suspected discrimination in pay or terms and conditions of employment, the DOL can pass that information to the EEOC more easily than before.

It is more important than ever for employers to self-audit their pay practices to ensure they are in compliance with all immigration and pay equity regulations. Many states, including New York, have passed robust pay equity laws in the past few years that grant employees the right to equal pay for substantially similar work. Additionally, nationality and citizenship status are protected characteristics in many states and under federal law.

Jackson Lewis’ immigration and employment attorneys are available to assist you in ensuring compliance with immigration regulations and EEOC regulations.

A change in calculating the availability of immigrant numbers means some foreign national ministers who are in the United States on temporary R-1 religious worker visas and waiting in lines for green cards will have to wait even longer, it seems. Some may even have to leave their congregations.

Ministers entering the United States solely to work in the ministry for a bona fide non-profit religious organization fall into a specific green card category: employment-based fourth preference. The fourth preference category includes religious workers and minors in Special Immigrant Juvenile Status (SIJS).

For those who are already in the United States in temporary R status, applying for a green card is a two-step process:

  • Filing a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the Department of Homeland Security (DHS); and
  • Filing a Form I-485 Adjustment of Status application when the individual’s priority date (established by filing the Form I-360) is “current.”

Until March 2023, the priority date in this category was February 1, 2022. In April 2023, DHS discovered it had been miscalculating the fourth preference category. DHS had separated individuals from El Salvador, Guatemala, and Honduras in their own fourth preference line because it had determined that those countries were using more than 7% of the immigrant visas in that category (which included the high-demand SIJS). As it turns out, those countries were not using more than 7% of all the available visas and therefore should have been included in the All Chargeability Areas Except Those Separately Listed, a.k.a., the Rest of the World (ROW) category. When the DHS moved the many individuals from the three North Central American countries who were in their own separate category into the ROW category, the “line” for others in the fourth preference ROW category retrogressed.

In March 2023, the priority date for individuals in the ROW fourth preference category was February 1, 2022. After the shift, that priority date retrogressed four years to September 1, 2018. As of November 1, 2023, the priority date will be January 1, 2019.

Individuals in temporary R status cannot stay in the United States for more than five years; thus, individuals who were close to becoming permanent residents may not be able to stay in the United States long enough to adjust status. One possible strategy for individuals in this situation is to leave the country, stay out for at least a year, and then try to return in R status. The problem with this option is that R status does not allow for dual intent. Therefore, individuals who have taken the first step in the green card process, filing a Form I-360, may not be able to obtain an R visa at a consulate abroad because they have evidenced their desire to become permanent residents. Individuals who were able to file both a Form I-360 and their Form I-485 (Application to Register Permanent Residence or Adjust Status) should be able to remain in the United States as pending adjustment applicants and should be able to continue working on the basis of the employment authorization documents they received through their I-485 applications even though they will have to wait to become permanent residents.

For those who have not filed adjustments and do not have enough time left, other visa options may be available. They would need to meet those eligibility requirements, which differ from the R visa category and potentially still face issues regarding intent if the particular visa category does not allow for dual intent. Jackson Lewis attorneys are available to discuss possible strategies.

USCIS has published a proposed rule that, once implemented, would significantly reform and modernize the H-1B Program. The Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers Rule has been released for Notice and Comment by the Department of Homeland Security (DHS).

The stated purpose is to streamline the H-1B process, provide greater benefits and flexibility for petitioners and beneficiaries, and improve the integrity of the Cap H-1B program. The comment period will run until December 22, 2023. At the end of the comment period, DHS will review all comments and publish the final rule.

The rule seeks to reform the following aspects of the H-1B Program:

  1. The H-1B Cap;
  2. Definitions in the H-1B Program; and
  3. H-1B and Other I-129 Filings.

1. Changes to the H-1B Cap/Lottery

DHS reports that in fiscal year (FY) 2021, there were 700 beneficiaries with at least five online Cap H-1B registrations and there was one beneficiary with 18. Two years later, in FY 2023, the numbers were significantly higher: 9,155 beneficiaries with at least five registrations and one beneficiary had over 83 registrations. Due to concerns about fraud and abuse in the H-1B lottery registration, DHS is proposing the following changes to address the issue of multiple cap registrations:

  • Registrations will be selected by unique beneficiaries, NOT by unique registrations. Beneficiaries may have registrations submitted by more than one petitioner for bona fide job openings but, regardless of the number of registrations, the beneficiary will be entered into the lottery only once. After being selected, each petitioner who submitted a registration for that beneficiary will be notified. This likely will give beneficiaries more ability to negotiate with employers about which job to accept. According to the proposed rule, this would not prevent the filing of legitimate concurrent H-1B petitions.
  • Related entities will be prohibited from submitting multiple registrations for the same beneficiary.
  • The rule would codify DHS’ ability to deny or revoke petitions where there was a false attestation regarding the bona fide job opening and clarify that the DHS can request contracts or other evidence to prove a position is not speculative.
  • DHS will require that all beneficiary registrants have a valid passport to make it easier for the agency to identify duplicate registrations. Beneficiaries with dual citizenship must use only one for registrations.
  • Petitioners must have a legal presence and be amenable to service of process in the United
    States.
  • DHS specifically noted that the changes to the Cap H-1B lottery might need to be postponed if the agency does not have enough time to implement the necessary changes.

To deal with delays in Cap adjudications and gaps in work authorization, DHS would:

  • Extend Cap Gap for qualified students in F status until April 1 of the FY or until the start date of approved H-1B petition, whichever is earlier; and
  • Permit Cap H start dates after October 1 if the case is not filed more than six months before the proposed start date of the petition.

2. Clarification of H-1B Definitions

Here, DHS is attempting to clarify definitions and consolidate all its guidance in one place. The rule would:

  • Revise the definition of “specialty occupation” to clarify that, if a position “normally” requires a certain degree, it does not mean the occupation “always” requires that degree.
  • Clarify that jobs may require a range of degrees if all the required degrees are directly related to the position and skills.
  • Expand the definition of “nonprofit research organization” and “government research organization” for H-1B Cap Exemption purposes by explaining that research must be a “fundamental activity” of the organization and not necessarily its “primary mission.” DHS would also revise the beneficiary’s requirements. They need only provide “essential work” even if the duties of the position do not directly further the organizations “essential purpose.”
  • Help entrepreneurs by allowing company owners in some circumstances may be eligible for H-1Bs.
  • Consolidate all the guidance on whether a move or a short-term placement requires an amended filing.
  • Clarify that “quantitative degrees” generally will not support an H-1B petition unless there is some specialization. For example, DHS notes that a general business degree alone would not support an H-1B petition for a marketing position, and a general engineering degree would not support a petition for a software developer position. In addition, requiring degrees as a proxy for a generic set of skills would not support an H-1B unless the petitioner can show an established past practice.

3. Changes That Affect H-1B and Other I-129 Filings

The rule would:

  • Clarify that if there is no material change, USCIS should defer to prior approvals.
  • Expressly require inclusion of maintenance of status documentation for all extensions and amendments.
  • Allow the amendment of validity periods where the validity period expires before petition  adjudication.
  • Codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation.

If you have any questions about the proposed new rule, please reach out to your Jackson Lewis attorney. Updates will be provided as the rule goes through the regulatory process.