At BIL, we strive to be your company’s partner in growth and innovation, on a global scale. We continue our commitment to demystifying the complex immigration laws of the United States and Canada to provide efficient and effective immigration and global mobility support. Please find this month’s business immigration news below.
U.S. BUSINESS IMMIGRATION UPDATES
ICYMI: Office of Foreign Labor Certification Confirms Timeline for New PERM Submission Portal
On May 11, 2023, the Office of Foreign Labor Certification (“OFLC”) within the U.S. Department of Labor announced that it had “…postponed the date for filers to begin submitting the new, revised applications for permanent labor employment (“PERM”) … in the Foreign Labor Application Gateway (“FLAG”) from May 16, 2023, to June 1, 2023.” The OFLC previously announced the switch to FLAG in an attempt to modernize the PERM Labor Certification filing process. Effective June 1, 2023, the OFLC will only accept the updated version of FORM ETA-9089 through FLAG.
An update to the PERM Labor Certification filing process has been much needed for many years, and we anticipate the switch to FLAG will help facilitate more efficient processing. We are cautiously awaiting and monitoring updates from the DOL.
Draconian Anti-immigrant Legislation Will Negatively Impact Florida’s Communities and Businesses
On May 10, 2023, Florida Governor Ron DeSantis signed SB 1718. The new law will take effect on July 1, 2023, and is expected to have significant impacts on the state’s communities and businesses. The law includes requirements that certain hospitals collect patient immigration status data information on admission or registration forms, specifies that certain driver licenses and permits issued by other states exclusively to unauthorized immigrants are not valid in the state, requires private employers with 25 or more employees to confirm workers’ immigration status through the E-Verify system, and amends the penalties for noncompliance with the employment verification law to allow for the revocation of business licenses and the imposition of fines.
The law has left immigrants and community leaders with their lives and livelihoods in jeopardy. It is expected that the farming, construction, and hospitality industries will be most impacted by the law, which could devastate immigrant communities. Brown Immigration Law anticipates that legal challenges to the constitutionality of these new measures will be filed, and we urge those affected in Florida to consider seeking appropriate counsel.
ICYMI: USCIS Announces FY2024 H-1B Registration Numbers
On April 28, 2023, USCIS announced the data for this year’s H-1B registration process. In total, USCIS reported 780,884 registrations, a 61% increase from last year’s 483,927. USCIS selected only 14.6% of eligible H-1B registrations for FY 2024. In comparison to 26.9% for FY 2023, 43.8% for FY 2022, 46.1% for FY 2021, the chances of getting selected has gone down to a third of what it was just four years ago. This poor outcome is likely a direct result of rising number of H-1B registrations, and the smaller number of selections made thus far this year.
Additionally, USCIS also announced a significant increase in the number of registrations submitted on behalf of beneficiaries with multiple registrations. For FY 2024, there were 408,891 eligible registrations for beneficiaries with multiple eligible registrations. This was more than double the number for FY 2023 and an even steeper increase from 28,125 for FY 2021. Due to the rise in number of registrations for beneficiaries with multiple eligible registrations, USCIS has since undertaken extensive fraud investigations to combat potential fraud.
Some of our clients have reported receiving letters from USCIS, noting the results of the data, but also confirming that the Agency is taking steps to combat fraud, and including the statement: “Based on evidence from the FY 2023 and FY 2024 H-1B cap seasons, USCIS has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating law enforcement referrals for criminal prosecution.”
Based on the recent reporting, we are hopeful there will be a July selection. If you have any questions about the H-1B Cap for FY 2024 or receive a letter from USCIS, please contact your Brown Immigration Law attorney.
DOL Issues Clarification on Question H.10-B “Acceptable Alternate Occupation Title” on the Form ETA-9089
On April 14th, 2023, the Office of Foreign Labor Certification posted an announcement regarding recent permanent labor certification applications that were denied because question H.10-B (Acceptable Alternate Occupation Title) was not explicitly answered. Such applications were denied because H.10-B included statements such as “see H.14 – Special Skills.” which did not identify acceptable alternate occupations. As a result of this, OFLC has recently been denying such applications as being incomplete. OFLC has evaluated these denials and determined the agency has not been consistent when it comes to denying applications based on this reason, though the denials were appropriate. OFLC has stopped issuing denials regarding this particular issue for pending applications and will not deny for this reason any application submitted on or before May 30th, 2023. Additionally, OFLC will overturn previous denials which were based solely on this basis. Employers whose applications were denied solely for this reason and have not yet requested consideration are encouraged not to submit a request, as OFLC will identify applications which were denied on this basis.
BALCA Issues Decision Addressing Question H.10-B “Acceptable Alternate Occupation Title” on the Form ETA-9089
On April 24th, 2023, BALCA issued a decision in which it reversed a PERM denial in which question H.10-B was completed with “See H.14.” The Certifying Officer (CO) denied certification, stating that Employer “failed to provide the title for the acceptable alternate occupation, the [A]pplication [wa]s incomplete,” in violation of 20 C.F.R. § 656.17(a). Employer argued that section H.14 did provide a complete answer and that while it did not explicitly state a specific title it “clearly provid[ed] the parameters for the alternate occupation…” and that any alternate occupation meeting the Section H.14 requirements would be acceptable. Based on these and other similar arguments, Employer requested review and the matter was forwarded to BALCA for administrative review.
BALCA found that failing to include the job title of an acceptable alternative occupation was immaterial to the CO’s review of the substance of the Form 9089, as Employer precisely detailed the skills needed to satisfy the requirement that “experience in an alternate occupation” was acceptable. Additionally, the CO did not provide a rationale explaining why a precise description of skills sets for an alternate occupation was unacceptable but simply providing “an occupation and/or Job Title (i.e. Systems Engineer IV or Technology Lead, etc)” was acceptable. Because of the above, BALCA found that an employer’s failure to identify an acceptable job title in Section H.10-B does not render an application, by itself, incomplete. Here, the provided description of skills associated with an acceptable alternate occupation did not impact the CO’s ability to adjudicate the application and there were no other deficiencies with it. As such, the denial was ordered to be vacated and the matter was remanded for certification.
CBP Proposes Adding a Third Gender Marker to Trusted Traveler Program Applications
On April 28th, 2023, the Department of Homeland Security, U.S. Customs and Border Protection published an information collection notice in the Federal Register to obtain comments from the public and affected agencies. One of CBP’s proposed changes is to update Trusted Traveler Programs to align with the Department of State’s passport options. Specifically, it would be to modify the Trusted Traveler Program application by adding a third gender marker (“X”) for applicants identifying as non-binary, intersex, and/or gender non-conforming. This marker would be categorized as “Unspecified or Another Gender Identity”, in the document sections of the electronic Trusted Traveler Programs application. Comments or suggestions regarding the items contained in the notice are encouraged and must be submitted no later than May 30th, 2023. They can be submitted here.
Suspension of Visa Services in Sudan
Due to the military conflict between parties in Sudan and the security risks that it poses, the U.S. Department of State (DoS) has decided to close its operation in Khartoum, the capital city of Sudan. All immigrant and diversity visa interviews are canceled until further notice. Nonimmigrant visa applicants may apply in any county in which they are physically present and where there are appointments available. Contact information for U.S. Embassies is available at usembassy.gov.
White House Announces the End to COVID Vaccine Requirement for International Air Travelers
On May 1, 2023, the White House announced that “the Administration will end the COVID-19 vaccine requirements for Federal employees, Federal contractors, and international air travelers at the end of the day on May 11, the same day that the COVID-19 public health emergency ends.” Additionally, the White House also mentioned that the Department of Health and Human Services (HHS) and the Department of Homeland Security (DHS) are also working on ending the COVID-19 vaccine requirements for Head Start educators, CMS-certified healthcare facilities, and certain noncitizens at the land border. Further details related to the ending of these requirements will also be given in the coming days.
USCIS Extends Temporary Suspension of Biometrics Submission for Certain Form I-539 Applicants
On April 19, 2023, USCIS extended the temporary suspension of the biometrics submission requirements for certain applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, requesting an extension of stay in or change of status to H-4, L-2, or E nonimmigrant derivative status, through September 30, 2023. What this means is that if you are a Form I-539 applicant meeting the biometrics suspension criteria, you do not need to submit the $85 biometrics services fee for Form I-539 during the suspension fee. However, USCIS reserved the right to require biometrics submission on a case-by-case basis. Finally, USCIS confirmed its plan to establish a permanent biometric exemption for all Form I-539 applicants in the coming months.
Employers Will Have 30 Days to Reach I-9 Compliance after COVID Flexibilities Sunset on July 31
On May 4, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigrations and Customs Enforcement (ICE) announced that although the COVID-19 flexibilities afforded to employers to reach Form I-9 compliance (under which they could remotely examine the employees’ documents and enter COVID-19 as the reason for the physical examination delay) will sunset on July 31, 2023, employers will now get a month’s reprieve, until August 30, 2023, to perform all required physical examination of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities. In addition, DHS is currently reviewing public comments and plans in response to its proposed rule to allow for optional alternative procedures for the examination of identity and employment eligibility documents, and plans to issue a final rule later this year.
We hope the DHS agencies continues on the path to inviting, considering, and incorporating public opinion in relaxing archaic and in some cases, unduly burdensome, immigration policies in effort to bring the government into the digital age.
Visa Bulletin June 2023
DOS posted the June 2023 Visa Bulletin. There are retrogressions for EB-5 India and in the “Other Workers” category for China, but the other dates remain the same as the May bulletin. USCIS determined that for June 2023, applicants in all family-sponsored preference categories must use the Dates for Filing chart and applicants in all employment-based preference categories must use the Final Action Dates chart.
New Learning Opportunities!
The Most Important Immigration Hacks for 2023
The world of business immigration law is an ever changing landscape. Like any large ecosystem, it grows and changes over time, and what worked in 2021 may not work today. We all know the system is in need of fixes, but without a legislative change, we are stuck with what we have. Join Managing Partner, David Brown, for a run through of the hacks Brown is implementing in 2023 to make the system work for our clients. This talk will encompass options for founders, HR Managers, and individuals to take charge of the process and be on the offensive in making our system work for its stakeholders. After an initial 30 minute talk David will spend additional time to answer your questions.
Employment Options for Those Seeking a Green Card
Depending on the type of employee hired or job performed there could be a wide variety of options available in some circumstances. In most cases, the truly viable option is an I-140 based PERM. Managing Partner, David Zaritzky Brown, will walk through the most common approaches we take and how we identify the way forward in starting a Green Card process. As always, David will stay on for a generous Q&A time to provide answers to interested attendees.
Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website.
If you have colleagues who may benefit from our talks, you are welcome to invite them to join by sharing our webinar schedule where they can subscribe for further information.
Don’t miss these opportunities to increase your knowledge on important immigration issues!
Thank you and we look forward to having you at the event.
The Team at Brown Immigration Law
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **