The U.S. Senate passed by Unanimous Consent an amended version of H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019 that was passed by the U.S. House of Representatives in 2019.

The Senate-passed bill eliminates per-country quotas for all employment-based immigrant visa and adds additional requirements for H-1B visas. See the bill here.

This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), and EB-3 (skilled and other workers) for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country. EB-5 is not included in the transition as it was in the earlier House version.

The Senate bill includes H-1B compliance provisions and limitations on Chinese immigrants affiliated with the Chinese government. We understand that House leaders have concerns with some of these new Senate-passed provisions and will amend the bill and send it back to the Senate for passage. Should the bill pass both Chambers, it will be sent to the president for his signature before it will go into effect.

With global travel disruptions reaching six months, lawful permanent residents (LPRs) and conditional permanent residents (CPRs) who are abroad and cannot currently travel back to the United States due to the Coronavirus Disease 2019 (COVID-19) pandemic are experiencing extended absences from the United States. Absences from the United States between six months to one year by a permanent resident may result in questioning at the time of reentry to the United States by the inspecting officer. Absences from the United States of more than one year can be more problematic. Those LPRs or CPRs who cannot, for whatever reason, return to the United States within the required timeframe may need to secure a “returning resident visa” from a U.S. consulate or embassy abroad.

LPRs or CPRs who have remained outside the United States for longer than one year, or beyond the validity period of a two-year re-entry permit, may require a returning resident visa to re-enter the United States and resume permanent residence. The returning resident visa is intended for LPRs or CPRs who departed the United States with the intention of returning to the United States, and only prolonged their stay outside the country due to circumstances beyond their control. For an LPR or CPR, qualifying reasons for remaining outside the United States for longer than one year or beyond the validity period of a two-year re-entry permit could include, but are not limited to, severe illness, pregnancy, third-party withholding of passport or travel documents, or government restrictions on outbound international travel such as those that may have been caused by the COVID-19 pandemic. Returning resident visa applicants must be able to justify their excessive absence from the United States due to circumstances “beyond their control” while presenting sufficient support for their continuous desire to promptly resume residence in the United States due to strong and continuous financial, employment, family, and social ties to the country.

LPRs or CPRs abroad with the possibility of remaining outside the United States for longer than one year, or beyond the validity period of a two-year re-entry permit, should be cognizant of the requirement of maintaining and being able to document continuous financial, employment, family and social ties to the United States. Such documents could include copies of U.S. income tax returns, property ownership documentation, employment documentation, and evidence of family and social ties, among other relevant documentation. This documentation will potentially establish that the original intent of the trip was temporary in nature. Due to the infrequent availability of appointment dates as U.S. consulates and embassies worldwide gradually resume routine services following initial closures due to COVID-19, returning resident visa applicants are encouraged to plan their applications sooner rather than later to avoid prolonging their stays abroad even further throughout the application process, which is substantively similar to that of other immigrant visa applications and also requires a medical examination.

*Special thanks to Chris Costa for his valuable assistance with this GT blog post.

Today, the U.S. House of Representatives approved H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019, that eliminates per-country quotas for all employment-based immigrant visa petitions by a wide, bipartisan vote of 365-65.

The bill includes language helpful to the EB-5 program relating to a transition period for implementation, as explained –

Fairness for High-Skilled Immigrants Act of 2019

This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.

A companion bill, S. 386 (Sen. Lee, R-UT) was being discussed for Senate floor consideration last month.  The bill drew H-1B compliance provisions that slowed momentum and interested Senators continue negotiations.

Please contact your GT attorney for specific questions.  We will update this matter as information becomes available.

For more on Employment Visas, click here. 

The heavily anticipated new Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States,” banning nationals from six countries from entering the United States, was signed by President Donald Trump on March 6, 2017 with an effective date 10 days following on March 16, 2017. This new EO revokes and replaces the previous EO 13769 signed on Jan. 27, 2017. The replacement EO provides additional clarification that stemmed from judicial review. For a summary of EO 13769, and a history of events that transpired, please visit.

Highlights of changes in the new EO include:

  • The six countries under the travel ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen.  Iraq has been lifted from the travel ban.
  • Clarification has been given that lawful permanent residents are not subject to the travel ban, and dual nationals may use another passport (that is not from one of the six countries) to enter the United States.
  • Waivers may be granted to individuals applying for a visa who are subject to the travel ban if: 1) denying entry during this period would cause undue hardship, 2) the entry would not pose a threat to national security, and 3) it would be in the national interest of the United States. Examples were provided of situations where a waiver would be appropriate.
  • Entry under the U.S. Refugee Admission Program will be halted for 120 days from March 16, 2017. Notably, the blanket halt on Syrian refugees has been removed.
  • The Visa Interview Waiver Program is suspended until further guidance from the Department of State.
  • Those who are in the United States will not have their visas revoked.

The new EO provides an explanation for some components of EO 13769 that are now rescinded, amended, or clarified in this Order. A section-by-section analysis is below:

Section 2:  Suspension of Visa Issuance- Iraq Removed

The text of this EO calls for the suspension of issuance of visas to nationals of Iran, Libya, Somalia, Sudan, Syria, or Yemen, except in case-by-case waivers, for 90 days from the effective date of the EO (March 16, 2017), while an ongoing assessment of the countries for terrorist threats is conducted. Notably, Iraq has been removed as one of the original countries subject to the travel ban. The reason cited is that the United States has been closely working with the Iraqi government and because of the military presence in Iraq, and Iraq’s commitment to fight ISIS, removing this country from the travel ban is justified.

In addition, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, will conduct a worldwide review to identify additional information, if necessary, from any country to ensure that the individual applying for a visa benefit is not a security threat. Within 20 days of March 16, 2017, a required report will be submitted to the President on the results of the worldwide review. Copies of this report will also be given to the Secretary of State, the Attorney General, and the Director of National Intelligence.

Once the report has been submitted to all parties, the Secretary of State shall request the foreign governments to provide the information needed within 50 days of notification. After the 50 day period has expired, the Secretary of Homeland Security, with the Secretary of State and the Attorney General, will submit to the President a list of countries where certain categories of foreign nationals should be prohibited from visa issuance because they have not provided the information. Additional countries may also be submitted for consideration to be added to the list of countries where restrictions or limitations are deemed necessary to protect the United States. In the same way, countries may be recommended for removal from the list as well.

Four reports, each submitted within 30 days of the effective date of the Order (March 16, 2017) to President Trump, are required to document the progress.

Section 3:  Scope and Implementation of Suspension

Application:  The suspension of entry into the United States will only apply to foreign nationals from Iran, Libya, Somalia, Sudan, Syria, or Yemen who are outside of the United States as of March 16, 2017; did not have a valid visa as of 5 p.m. EST on Jan. 27, 2017; and do not have a valid visa on March 16, 2017.

Exceptions: The suspension of entry will not apply to the following individuals even if the person is a national of Iran, Libya, Somalia, Sudan, Syria, or Yemen:

  • A lawful permanent resident of the United States;
  • A foreign national who is admitted to or paroled into the United States on or after March 16, 2017;
  • Any foreign national who has a travel document other than a visa stamp that is valid on March 16, 2017, or any date afterwards that would permit travel into the United States;
  • A dual national of one of the six countries (Iran, Libya, Somalia, Sudan, Syria, or Yemen) but traveling on a passport not from one of the six countries;
  • Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa, or G-1, G-2, G-3, or G-4 visa;
  • Any foreign national who has been granted asylum; a refugee who has been admitted to the United States; or any person who has been granted withholding of removal, advance parole, or protection under CAT (Convention Against Torture).

Waivers:  A consular officer or a Customs and Border Protection (CBP) officer may, in their discretion, decide on a case-by-case basis, if the person has demonstrated that:

1) denying entry during this period would cause undue hardship;

2) denying entry during this period would not pose a threat to national security; and

3) it would be in the national interest to issue a visa to, or grant entry to, one whose entry would otherwise be suspended.

If a consular officer issues a waiver to grant a visa, then that waiver will apply to the entry on the visa as well. Individuals in the following situations may qualify for a waiver:

  • The foreign national was previously admitted to the United States for a continuous period of work, study, or other long-term activity, and who was outside the United States on March 16, 2017, and is now seeking reentry to the United States to resume that activity. The foreign national will also need to show that denial of entry during the suspension period will hinder the activity.
  • The foreign national has significant contacts in the United States, but was outside the United States on March 16, 2017, for employment, studies, or other lawful activity.
  • The foreign national wishes to enter the United States for significant business or professional obligations, and denying the entry would hinder the obligations.
  • The foreign national is seeking to enter the United States to visit or live with a close U.S. citizen family member, LPR, or individual who was admitted in non-immigrant status, and the denial of such entry would cause undue hardship.
  • The foreign national is a young child or adoptee, a person needing urgent medical care, or whose entry is otherwise justified by the special circumstances.
  • The foreign national has been employed by the U.S. government (or is a dependent of such employee) and has provided valuable and faithful service at the time to the U.S. government.
  • The foreign national is traveling for meetings or business with the U.S. government representing an international organization designated under the International Organizations Immunities Act.
  • The foreign national is a Canadian immigrant and who is applying for a visa within Canada.
  • The foreign national is traveling in the capacity of a U.S. government-sponsored exchange visitor.

Section 4:  Additional Inquiries Regarding Iraqi Nationals

A thorough review and, if necessary, consultation with a designee of the Secretary of Defense will be required for applications by any Iraqi national for a visa, admission, or other immigration benefit. The thorough review will include consideration of whether there are ties to ISIS, or any other terrorist organization, and whether the individual will pose as a threat to U.S. national security.

Section 5:  Uniform Screening and Vetting Standards for All Immigration Programs

The text of the EO proposes to implement the following to better identify those who seek to enter the United States to harm the country:

  • Develop a uniform baseline for screening procedures, including in-person interviews;
  • Establish a database for identity documents to ensure duplicates are not used by different applicants;
  • Utilize application forms with amended questions aimed at identifying fraudulent answers and malicious intent; and
  • Identify questions to evaluate whether the applicant has the intent to commit criminal or terrorist acts in the United States.

The Secretary of Homeland Security will be required to submit a report to the President 60 days from March 16, 2017, on the progress of these initiatives for a new screening and vetting program.  A second report will be due 100 days from March 16, 2017; and a third report 200 days from March 16, 2017.

Section 6:  U.S. Refugee Admission Program Suspension for the Fiscal Year 2017

President Trump, through this EO, is temporarily suspending USRAP, effective March 16, 2017, for 120 days. Syrians are included in this temporary suspension and not signaled out for indefinite suspension during this 120 day period. A review will be conducted to determine and change the adjudications procedure. This will not apply to refugees who have been formally scheduled for transit by the Department of State prior to March 16, 2017.  U.S. refugee admission will resume under the USRAP 120 days after March 16, 2017.

In addition, the text of the EO limits the number of refugees per fiscal year to 50,000, until the President determines that additional entries would serve the national interest.

The EO includes a provision that would allow the admission of refugees on a case-by-case basis, if it is in the national interest. The Order also includes a provision to assist state and local jurisdictions with their involvement in the resettlement process.

Other Provisions

The EO includes other provisions related to the entry of foreign nationals into the United States. These include the following:

  • Section 8: Expedited completion of the biometric entry-exit tracking system. Three reports shall be submitted within 100 days; 200 days; and 365 days of March 16, 2017, respectively, and a report shall be submitted every 180 days until the system is completed and operational.
  • Section 9: Visa Interview Security. The visa interview waiver program will be suspended until further notice or guidance from the Department of State. This would require individuals who would otherwise be qualified for a visa interview waiver to appear at the U.S. consulate or embassy in person for an interview. The visa interview program suspension will not be applicable for those applying for a diplomatic or diplomatic-type of visa (NATO, C-2, G-1, G-2, G-3, or G-4; or traveling under the IOIA for business purposes). In addition, the Secretary of State is instructed to expand the Consular Fellows Program where allowable to alleviate consulates and embassies abroad of workload.
  • Section 10: Review and Change of Visa Validity Reciprocity. The Secretary of State is required to review all nonimmigrant visa reciprocity agreements, including all categories, duration of time, and fees. If the foreign country does not treat the U.S. national in a reciprocal manner, the Secretary of State will adjust the conditions to match.
  • Section 11: Reports for Transparency and Data Collection. The Secretary of Homeland Security will publish a report for public viewing, every 180 days from March 16, 2017, a list of foreign nationals who have been charged, convicted, or removed from the United States based on terrorism-related activity; the number of foreign nationals radicalized after entry into the United States; information regarding the number and types of acts of gender-based violence against women; and any other relevant information.  The first report will cover the time period from Sept. 11, 2001, to the report’s due date.
  • Section 12:  Enforcement. This section provides text for the following:
    • The Secretary of State and the Secretary of Homeland Security are instructed to work with the appropriate domestic and international partners to ensure compliance and implementation of the contents of this EO.
    • Opportunities will still be given to those individuals to claim a fear of persecution or torture to make their applications for asylum.
    • There will be no revocation of an immigrant or nonimmigrant visa that was issued prior to March 16, 2017.
    • Those whose immigrant or nonimmigrant visas had been revoked due to EO 13769 will be able to apply for a new travel document and seek entry.
    • The EO will not apply to any person who was granted asylum, who is a refugee admitted to the United States, or to a person granted withholding of removal or protection under CAT. A person will still be able to seek asylum, withholding of removal, or protection under CAT.

As this Order is expansive, Greenberg Traurig will continue to monitor the conditions and changes. In addition, we expect additional EOs related to immigration in the coming days and weeks. To receive updates, please subscribe to our blog.

Beginning Feb. 16, 2016, USCIS began reissuing receipt notices on Form I-797 to applicants who continue to have pending applications for renewed employment authorization (EAD applications) under certain categories that were originally filed between July 21, 2016 and Jan. 16, 2017. EAD applications that were filed during this window did not fall within the benefits of the finalized rules to modernize and improve employment-based non-immigrant and immigrant visa programs, published by the U.S. Department of Homeland Security, and which took effect on Jan. 17, 2017.

Specifically, USCIS began reissuing EAD receipt notices for the below categories because some of the receipt notices issued by USCIS between July 21, 2016 and Jan. 16, 2017 did not indicate the EAD category.  These EAD categories are:

  • (a)(3) Refugee
  • (a)(5) Asylee
  • (a)(7) N-8 or N-9
  • (a)(8) Citizen of Micronesia, Marshall Islands, or Palau
  • (a)(10) Withholding of deportation or removal granted
  • (c)(8) Asylum application pending
  • (c)(9) Pending adjustment of status under section 245 of the Immigration and Nationality Act
  • (c)(10) Suspension of deportation applicants (filed before April 1, 1997), cancellation of removal applicants, and special rule cancellation of removal applicants under NACARA
  • (c)(16) Creation of record (Adjustment based on continuous residence since January 1, 1972)
  • (c)(20) Section 210 Legalization (pending Form I-700)
  • (c)(22) Section 245A Legalization (pending Form I-687)
  • (c)(24) LIFE Legalization
  • (c)(31) VAWA self-petitioners

As part of the finalized rules that took effect on Jan. 17, 2017, USCIS indicated on the EAD renewal receipt notice the EAD category for renewal applications that were filed after Jan. 16, 2017. Under the finalized rules, applicants could present the EAD renewal receipt notice to their employer as a valid List A document for Form I-9, Employment Eligibility Verification, to show that they had continued work authorization for 180 days while USCIS reviewed their EAD renewal applications. By reissuing the receipt notices to EAD renewal applicants who filed applications between July 21, 2016 and Jan. 16, 2017 under the above-listed categories, these EAD renewal applicants can present the reissued receipt notice to their employer for Form I-9 and take advantage of the finalized rules providing 180-day extensions in employment authorization.

Absent from the above-listed EAD categories are dependents of popular employment-based nonimmigrant visas, such as the H-4, L-2, and E-3D, as well as EAD applicants who have Deferred Action for Childhood Arrivals (DACA), or Temporary Protected Status (TPS), which give applicants authorization to remain in the United States.

Applicants who file for an EAD renewal based on TPS already receive a 6-month extension through the Federal Register notice that extended their respective country’s TPS designation. For the other EAD renewal applicants, they must present the actual EAD to their employer to verify their continued employment authorization. The specific categories are noted below:

  • (a)(17) Spouse of an E nonimmigrant
  • (a)(18) Spouse of an L nonimmigrant
  • (c)(26) Spouse of an H-1B nonimmigrant
  • (c)(33) Consideration of Deferred Action for Childhood Arrivals

For more information please contact your Greenberg Traurig attorney.

As immigration reform moved toward approval by the Senate Judiciary Committee on May 21, 2013, another stand-alone bill (H.R. 2131) has been introduced by Rep. Darrell Issa (R-Calif.) in the House.  Mr. Issa is the chairman of the House Oversight Committee but, more importantly to the immigration reform debate, he sits on the House Judiciary Committee.  Mr. Issa’s “Skills Visa Act” includes, among other things, provisions that will impact the EB-5 program, and also proposes two other programs that would give entrepreneurs alternatives for pursuing permanent residence.

The EB-5 Changes Include:

  • Permanent Reauthorization: The bill would make the program permanent. It is currently set to sunset in 2015 absent Congressional reauthorization.
  • Minimum investment: The minimum investment amounts would be increased to reflect the change in the value of the dollar from the program’s creation in 1990 to the present day and would be prospectively indexed for future inflation. This could increase the base amounts of investment by almost $300,000 initially.
  • Job Creation: USCIS currently requires that the job creation requirement be met two years after the grant of a conditional green card when an investor seeks the removal of the conditional status of their permanent residence or “at a reasonable time thereafter.”  The bill states that the required jobs must actually exist at the time that the conditional status is removed and allows USCIS to extend the conditional status for an extra year in order to give an investor additional time to create the required jobs.
  • Targeted Employment Areas: In an effort to prevent the “gerrymandering” of low-unemployment areas into targeted employment areas, the bill provides that 1) the relevant “targeted employment area” must fit entirely within a geographical unit that the U.S. Department of Labor has determined has an unemployment rate of at least 150 percent of the national rate; 2) the U.S. Secretary of Labor shall set forth a uniform methodology for determining whether an area qualifies as having unemployment of at least 150 percent of the national rate; and 3) USCIS will not be bound by the decision of any other entity that a particular area has experienced high unemployment. This provision could hamper TEA designations.
  • Fraud Deterrence: In order to deter fraud, the bill bars persons from involvement in regional centers who 1) have committed crimes that are considered aggravated felonies under the Immigration and Nationality Act (INA); 2) would be inadmissible pursuant to the security and terrorism-related grounds of inadmissibility (if they were aliens seeking admission); or 3) have been convicted of criminal securities fraud or have been found to have engaged in civil securities fraud. Additionally, the section clarifies and expands the U.S. Department of Homeland Security’s (DHS) authority to perform criminal record and background checks on regional center managers, owners, administrators, promoters, and others who have significant responsibility in the regional center. DHS may terminate regional centers from participation in the investor visa program if prohibited persons are involved in the centers or if the centers provide false information in the context of background checks.
  • Securities Compliance: The bill requires regional centers to certify compliance with Federal securities laws. USCIS could terminate regional centers for failure to make the necessary certifications or for securities law violations.

Changes to Permanent Residence Options:

As noted above, the bill creates two new permanent residence options for foreign entrepreneurs.

  • The first program is for venture capital-backed entrepreneurs who attract investment of at least $500,000 from a qualified venture-capital operating company or at least $100,000 from a qualified angel investor.   The entrepreneur would be given conditional permanent residence for up to three years to create jobs for at least five U.S. workers and two years to raise an additional $1,000,000 in capital or generate not less than $1,000,000 in revenue.
  • The second program is for foreign entrepreneurs who have been operating businesses in the U.S. under the E-2 treaty investor non-immigrant visa program.   This program would make permanent residence available to E-2 treaty investors who have maintained their status for a minimum of 10 years and have created jobs for at least five U.S. workers for a minimum of 10 years.

Every fiscal year (October 1st – September 30th), approximately 140,000 employment based immigrant visas are made available to qualified applicants.  These employment based visas once approved serve as the basis for an individual’s green card application once approved.  Spouses and minor children under 21 years of age may accompany or follow-to-join employment based immigrants.

Employment based immigrant visas are divided into five preference categories. The EB-5 category is allotted 7.1% of the yearly worldwide limit of employment based immigrant visas. This translates to approximately 10,000 immigrant visas per year in the EB-5 category.  The 10,000 figure includes derivative visas for the spouses and minor children of investors.  The regional center pilot program allocates 3,000 green cards each year for individuals who invest in USCIS designated regional centers.  In stakeholder meetings, USCIS has confirmed that the 3,000 is not a limit, just the amount reserved specifically for regional center based petitions.  Likewise, of the 10,000 immigrant visas available for investors, 3,000 are set aside for EB-5 cases located in targeted employment areas.

Within each employment based immigrant visa preference category, each country can only use 7% of the annual total of immigrant visas each year.  When the demand in a particular preference category exceeds the available supply, a backlog can develop. China and India far exceed the maximum annual number of visas allotted to them each year in the EB-2 and EB-3 category and as such have extremely lengthy backlogs.

Though the maximum amount of EB-5 visas has never been used and no country has reached its quota limit, usage has certainly risen.  To compare, in 2006 only 502 visas were used.  In 2011, 3,463 visas were issued.  IIUSA has compiled a resource listing of EB-5 visa statistics available here that demonstrate usage trends over the past five years.   If this rate continues, the cap for the EB-5 visas may be reached in the next couple of years.  It will be interesting to continue to monitor the EB-5 regional center reauthorization efforts to see if an increase in numbers will make its way into the pilot program extension bill.

The global demand for non-immigrant U.S. visas skyrocketed during the COVID-19 health emergency, when travel was halted and U.S. embassies and consulates closed. Even after reopening, U.S. embassies and consulates are still reporting significant delays in many locations including Brazil, India, Mexico, and others. More recently, the U.S. State Department announced that new processing initiatives, including Saturday visa appointments at some consulates in India, and more visa interview waivers, have addressed these delays. While the wait times at many consulates have dropped significantly, the wait time is still long and continues to affect business and leisure travelers. The most severe wait times often impact B-1 business and visitor visas, which the State Department has determined to be “lower priority” than other types of visas such as student or employment visas, such as the H-1B, L-1, and so forth. For example, the current wait time for a B-1/B-2 visa in Mumbai is 707 days; in Chennai, it’s 640 days. The wait period for H, L, O, P, Q visas is 69 days in Mumbai and 224 days in Chennai. Applicants can track general visa wait times on the State Department website.

Immigrant visas, otherwise called “green cards,” were also severely impacted by COVID-19 shutdowns but still remain at an all-time high, which is keeping families apart and businesspeople outside the United States. According to the State Department’s “National Visa Center (NVC) Immigrant Visa Backlog Report,” more than 400,000 cases are pending at the National Visa Center waiting for immigrant visa interviews at a U.S. consulate.

In a recent bipartisan letter to the State Department, U.S. Sens. Amy Klobuchar, Dan Sullivan, Jacky Rosen, John Cornyn, Cory A. Booker, and Jerry Moran stressed how these delays are severely impacting U.S. businesses and universities in the United States. This also has a financial impact on the nation. While the letter acknowledges the administration’s effort to decrease these wait times, it still urges the State Department to continue to take important steps to decrease the wait times even further and also requests that the State Department respond to these concerns by March 10, 2023.

By Laura Reiff and Nataliya Binshteyn

According to the White House, President Obama will unveil his plan for comprehensive immigration reform during a visit to Nevada on Tuesday, January 29. Calling reform “a top priority” of his second term, the president will call for legislation that creates a path to citizenship for the millions of undocumented immigrants currently living in the United States.

According to House Democratic Caucus Chair Xavier Becerra (D-California), President Obama’s recent meeting with senior members of the Congressional Hispanic Caucus (CHC) underscores “the great sense of urgency” around this issue, described as the president’s “top legislative priority.” The CHC’s recently released nine-point plan for comprehensive reform includes a pathway to permanent residency and eventual citizenship for undocumented immigrants, new employment visas for skilled workers, and the creation of an employment verification system for workplace compliance with immigration law. The proposal is expected to serve as blueprint for the president’s plan, which does not appear to contain provisions for a temporary guest worker program.

According to reports, the president’s announcement will not include the bipartisan Senate working group proposals also scheduled for release next week. One of the Congressional leaders spearheading this effort, Senator Marco Rubio (R-Florida), has also proposed a plan that contemplates citizenship for undocumented immigrants currently living in the United States. Senator Rubio’s proposal, which deviates from the Republican party’s long-held position that offering citizenship to undocumented immigrants could amount to amnesty, includes a series of steps for obtaining legal status, such as fines, back taxes, background checks, and a lengthy probationary period. For its part, the White House stated that it sees a “new willingness” to effect bipartisan progress on comprehensive immigration reform and hopes that the “dynamic” of partisan gridlock “has changed.”

  1. USCIS Filing Fee Increase and Premium Processing Expansion – In 2023, USCIS issued a proposed rule to increase the required filing fees for many applications. The proposed increases for employment-based immigration benefits are significant, and if the final rule takes effect, employers will incur increased expenses to file common case types such as H-1B registrations, H-1B/ L-1/ E/ TN petitions, I-140 petitions, and I-485 applications. (The final rule on USCIS’s fee schedule is expected in April 2024).

    Although a specific timeline has not yet been provided, USCIS is expected to announce further expansion of its premium processing service in 2024. USCIS continued expanding premium processing service in 2023 to include Form I-140 EB-1C multinational executive and manager classification and EB-2 National Interest Waiver classification, certain F-1 students seeking optional Practical Training (OPT) andscience, technology, engineering, and mathematics (STEM) OPT extensions, and certain applicants requesting a change of status on Form I-539 to F, M, or J status.
  2. Ongoing Focus on Immigration Compliance – In 2023, significant immigration compliance-related changes took effect. Related to Form I-9, changes included the sunset of the Department of Homeland Security’s temporary COVID-related Form I-9 flexibilities, the new mandatory Form I-9 08/01/2023 edition, and, for qualifying E-Verify employers, an alternative remote I-9 document inspection procedure.

    In an evolving landscape, more and more states mandated enrollment in E-Verify in 2023, which is operated by USCIS and largely remains a voluntary program. Similarly, in 2023, an increasing number of states have passed laws on pay transparency which can impact the U.S. Department of Labor’s PERM labor certification process. Throughout 2024, the changes introduced in 2023 and ongoing interplay between state and federal requirements will create a challenging immigration enforcement environment and will place employers at risk for non-compliance.

    The Department of Homeland Security and Department of Labor are expected to continue their focus on immigration compliance and, similarly, in 2024 the U.S. Department of Justice’s Immigrant and Employee Rights Section (IER) may continue its enforcements, settlements, and lawsuits related to immigration-related discrimination. The post-pandemic workforce has reshaped traditional employment paradigms, making it crucial for businesses to reassess internal immigration and compliance policies, conduct regular audits to make corrections and train designated personnel, maintain required records such as public access files, and define a protocol for an unannounced government audit or site visit. In 2024, employers should remain informed about evolving immigration laws and policy changes to ensure compliance with immigration regulations.
  3. Department of Labor (DOL) Processing and Regulatory Agenda – On June 1, 2023, the Department of Labor (DOL) transitioned to a new online Permanent Labor Certification Program (PERM) application filing system and a new PERM Application Form ETA 9089.

    The DOL indicated it would not begin processing PERM applications filed through the new system until it finalized processing of cases pending in the legacy PERM portal. In 2024, the DOL will begin processing PERMs filed on the new form through the new system, which may result in an increased rate of PERM audits. As a result of the 2024 DOL transition, PERM processing times are not expected to decrease.

    The DOL’s regulatory agenda in 2024 includes a proposed rule to establish a new wage methodology to set prevailing wage rates for the H-1B, H-1B1, E-3, and PERM programs. A final prevailing wage rule had been scheduled to take effect in 2022 but was then vacated in court, and publication of the new proposed rule, first scheduled for late 2023, is now expected in June 2024.
  4. Updates Related to the H-1B Visa Program: Modernization and Domestic Visa Renewals – The Department of Homeland Security (DHS) continues to pursue a proposed rule to modernize the H-1B program. The regulation was published in the Federal Register in late October of 2023 and is followed by a 60-day public comment period. Under the rulemaking process, USCIS then considers public comments and finalizes the rule’s provisions through one or more final rules. The rule will not take effect until it advances through review, which usually takes several months. DHS indicated that it is considering separating out certain provisions, such as proposed changes to the H-1B registration, so some provisions may be finalized sooner in an effort to implement them for the upcoming FY2025 H-1B cap season beginning in the Spring of 2024.

    In early 2023, the U.S. Department of State (DOS) announced its plans to test a program that would permit visa holders to renew their visa stamps from within the United States. On December 21, 2023, the DOS published a Federal Register notice announcing that the stateside visa renewal pilot will begin on January 29, 2024, and end on April 1, 2024.
  5. Proposed 2024 Regulatory Agenda Related to Nonimmigrant Workers and Green Card (Adjustment of Status and Immigrant Visas) Process Changes – The Department of Homeland Security’s 2024 regulatory agenda reflects plans to publish a proposal in the Fall of 2024 to amend its regulations related to certain nonimmigrant workers. Proposed changes include updates to employment authorization rules for dependent spouses, increasing flexibilities for nonimmigrant workers including for those who resign or are terminated from employment, and additional updates related to modernizing Employment Authorization Documents.

    The Department of Homeland Security plans to publish a proposed rule in March 2024 to make changes to the process for adjustment of status to permanent residence. The proposed rule is anticipated to address the transfer of the underlying basis of an application to adjust status, reduce processing times and the potential for visa retrogression, and promote the efficient use of immediately available immigrant visas.

    The U.S. Department of State’s regulatory agenda for 2023 included a final rule that would permit a waiver of the general requirement for immigrant visa applicants to appear before a consular officer to be interviewed and to execute their application in person at a U.S. Consulate abroad. Details of the rule were expected in late 2023.

    GT will continue to monitor the regulatory agenda and related developments and will publish updates on as regulations move through the rulemaking process.

About the Authors:

Courtney B. Noce is Co-Chair of Greenberg Traurig, LLP’s Immigration and Compliance Practice. Noce represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging from permanent residence (PERM, National Interest Waivers, Extraordinary Ability/Outstanding Researcher, Multi-National Managers, among others) to nonimmigrant visa categories (H-1B, H-3, J-1, L-1A/B, O-1, TN).

Kate Kalmykov is Co-Chair of Greenberg Traurig, LLP’s Immigration and Compliance Practice. Kalmykov focuses her practice on business immigration and compliance. She works with employers of all sizes across a variety of industries in understanding and complying with the immigration laws relating to the hiring and retention of foreign talent. Specifically, her practice focuses on supporting clients and advising them on temporary and permanent residency immigration options for multi-national executive, business, scientific, and information technology personnel.

Miriam C. Thompson is an associate of Greenberg Traurig, LLP’s Immigration and Compliance Practice. Thompson focuses her practice on business immigration and immigration-related compliance issues, assisting employers with hiring and retaining foreign nationals in various industries and business sectors, including manufacturing, engineering, technology, medical, logistics, and academia. She has experience advising employers on all aspects of business immigration, including nonimmigrant visa categories (B, E, F-1, H-1B, J-1, L-1 A/B, O-1, TN), managing a multinational workforce, and permanent residence.