Employment-Based (EB) Immigration Law going into 2024
This post will make some predictions about U.S. immigration law developments going into the New Year.
2023 felt like a blur and we are now on the edge of 2024. This post will lay out some predictions about where things are going for EB (Employment-Based) immigration in the New Year. I apologize in advance that this post assumes some background in immigration law so should you require more foundational background on these topics, check out other posts I have done in this newsletter.
Should you agree or disagree with my analysis here, please add a comment at the end!
Here is what this post will discuss:
Stateside Visa Processing.
H-1B Cap.
PERM Labor Certification.
EB-2 NIW.
O-1s and L-1s and EB-1s.
Transfers to Canada and elsewhere.
The Visa Bulletin.
USCIS Adjudications: Increased fees, divergent outcomes, technology fits.
The Border.
The Presidential Election.
PS: Some Personal/Professional News.
Stateside Visa Processing.
The U.S. Department of State has announced the availability of stateside visa stamping, to start in January 2024. This will be the first time in about 20 years for H-1B workers to get their visa stamped into their passport without leaving the United States.
While stateside visa processing has considerable promise, in my view, there is HUGE interest in this program and considerable risk that in the initial months there will be frustrating glitches. I would strongly discourage anyone in participating in the program in the first half of 2024. Don’t be part of the agency’s beta test. Wait 6 months and see what people are saying.
If you need to process for a visa in the first half of 2024, consider a U.S. consulate for traditional visa processing. The wait times have improved considerably since the big delays during the pandemic.
H-1B Cap.
The USCIS has proposed changes to the H-1B cap lottery system to hopefully prevent fraud. The new rules should be in effect for the next lottery in March 2024. These changes (particularly limiting each H-1B candidate to only one employer in the lottery) should improve things.
I predict the number of H-1B cap lottery filings will NOT go up from last year; but even with that modest ‘optimism’ - I think there will be many more lottery submissions than new H-1B visas available.
Lots of good people will not get H-1B visas and have to scramble for alternatives. But with that said, if you are eligible for an H-1B visa and there is an employer willing to sponsor you, definitely you should participate in the lottery.
PERM Labor Certification.
In EB immigration, the traditional way a person gets sponsored for a green card through employment is through PERM labor certification. PERM is a test of the local labor market by an employer to document a shortage of qualified and willing U.S. workers.
Currently the PERM process is very slow (slowest PERM processing ever, going back to when the program started in 2005).
I predict that in 2024, the PERM process will continue to be slow and there is going to be a huge question mark on how the U.S. Department of Labor (DOL) handles PERM filings using the new FLAG form.
In 2023, the DOL changed the form for PERM from the form it has been using since 2005 to the new FLAG-based form; but so far, as of the end of December 2023, no cases have been adjudicated using the new form. Anecdotal information suggests that DOL has not even trained its officers yet on how to use and review the new form. History tells us that DOL is notoriously terrible at interpreting its own forms in ways hostile to employers. There are all sorts of ways that DOL can interpret the form and deny cases in a system that is infamous for being hyper technical.
I think the EB immigration world has not given due consideration to how an already very slow PERM system now could potentially blow up when faced with novel interpretations by DOL of how the new form should have been completed. Workers who are really counting on their PERM application to be approved face risks that their employers (and employers’ lawyers) have not prepared the new form in a way that DOL considers ‘correct’. Watch for appeals and possible litigation on these issues in 2024.
Also, given the possibility of a slowing economy in 2024, watch for increased scrutiny by DOL related to employers with high profile layoffs, and possible scrutiny of employer practices akin to what has occurred in the past few years with Meta and Apple.
Overall, I believe PERM is an area of considerable potential risk in 2024.
EB-2 NIW.
As anyone who reads my stuff knows, I have been a big proponent of EB-2 NIW. The Biden Administration has issued various policy memos promoting EB-2 NIW and the availability of premium processing for EB-2 NIW makes its benefits more attractive (even though Visa Bulletin cut-off dates make wait times longer).
In 2024, I predict we will continue to see a large amount of interest in EB-2 NIW, and foreign nationals of more and more diverse backgrounds will consider pursuing this option especially F-1 graduate students. There is increasing awareness that because of Visa Bulletin cut-off dates, graduate students (not born in India or China) need to invest in EB-2 NIW early in hopes of getting a priority date that will be current during their OPT and STEM OPT period.
The limited availability of H-1B visas (due to the H-1B cap) and the slow and uncertain processing times of PERM make EB-2 NIW something that more and more foreign nationals rightfully want to pursue.
While the data is not necessarily public to analyze, I predict that 2024 will see an increase in the number of foreign nationals from outside the United States who consider EB-2 NIW to immigrate directly to the United States. For middle class professionals worldwide, EB-2 NIW is, I believe, increasingly the principal vehicle to immigrate to the United States.
O-1s and L-1s and EB-1s.
With (i) limited H-1Bs available, (ii) slow processing of PERM cases, and (iii) Visa Bulletin cut-off dates, more and more foreign nationals (and their employers) will be looking to categories of visas where there are either no annual limits (like O-1 and L-1) or the Visa Bulletin backlogs are not so bad (like EB-1).
Employers eligible for corporate blanket L petitions will increasingly look to obtaining corporate blanket L petition approvals to manage transfers from abroad.
More and more employers will be looking to sponsor F-1 students to O-1, as more and more F-1 students will be running out of OPT and STEM OPT and unlucky in the H-1B cap lottery. Law firms that focus on EB immigration and basically focus on H-1Bs and PERM will have to re-tool to handle O-1s and EB-1s; but a lot of their staff will be ill-equipped to prepare O-1s and EB-1s given the different ways these cases are documented.
Whether large employers with lots of talented F-1s will re-calibrate to use firms better suited for the 2024 landscape remains an open question. It remains one of the amazing things in life to see how durable certain outside counsel relationships are, notwithstanding very strong, sustained, and negative feedback from foreign national employees.
Transfers to Canada and Elsewhere.
Foreign nationals who are unable to secure stable work authorization in the United States will continue to look at Canada as an alternative. Canada has a clearly superior system for facilitating visas for skilled professionals but the cost of living in Canada in 2024 will cause a lot of foreign nationals to explore alternatives. Living in any major city in Canada is akin to living in the most expensive cities in the United States.
I predict 2024 will be a year when ‘digital nomad’ visas continue to gain prominence and perhaps relatively unexpected places like Ireland or Belize or Argentina might get more attention as alternative places to live, at least temporarily.
The Visa Bulletin.
Barring a change in policy in how the U.S. Department of State and USCIS consider cut-off dates, the EB immigrant visa numbers will continue to disappoint everyone. There is simply too much demand and too limited supply.
There will continue to be a cottage industry of astrologists and shaman predicting cut-off dates to gain clicks and views.
While my attention is mainly focused on EB-1 and EB-2 and EB-3, I suspect a possible breakthrough in policy may come by lobbying from religious organizations concerned about EB-4 and the backlog on the cut-off dates for religious workers, who are limited to 5 years of R-1 time and not eligible for extensions beyond 5 years even with an approved I-360 religious worker petition. Watch for 2024 to be a year when religious workers somehow create an opening for policy change, perhaps with a more enlightened view of how to determine the cut-off dates for Chart B.
Also, I think it is possible that in summer 2024, while President Biden is in the middle of a close re-election campaign, perhaps there will be policy changes to mitigate the frustratingly slow movement of cut-off dates. Let’s not forget that it was not until President Obama was running for re-election that he suddenly realized DACA was legal and possible after years of saying he could not act unilaterally. A close re-election campaign somehow moderates legal interpretations. Go figure.
USCIS Adjudications.
In the post-pandemic era, there has been a clear increase in the number of employment-based immigration filings (of all kinds) and the filings are done by a wider range of ‘players.’ This includes more foreign nationals comfortable filing without an attorney (sometimes with the help of coaches or consultants) and there is a wide range of law firms and consultancies, in the US and also abroad, filing immigration cases.
The USCIS has staffed up to try to accommodate the increase in filings but there is a greater divergence in outcomes. Examples of the divergence in outcomes -
A lot more typos on receipt notices;
RFEs (Requests for Evidence) issued requesting information already sent and sometimes RFEs claimed to have been sent out but have not actually been sent out - leading to motions to re-open and other hassles;
RFEs on issues not germane to adjudication of the case;
RFEs which clearly indicate the officer did not read the initial information submitted, where the RFE includes information from a totally unrelated case.
In addition to the divergent range of outcomes, which are obviously frustrating - the USCIS will likely increase fees to help cover the costs of increasing staff and investing in technology. We have already seen a recently announced substantial increase in the premium processing filing fee.
Also in 2024, USCIS will continue to roll out new technology in hopes that the technology will facilitate faster adjudications and keep up with increased demand. But history suggests technological innovations within the U.S. government will have various glitches. Anyone remember healthcare.gov?
Regarding divergent outcomes - one of the secondary effects is that it will provide rationalization for some of the more aggressive and borderline unethical service providers, with an increasingly number of people believing the way you deal with USCIS is to ‘throw spaghetti against the wall and see what sticks’. The system has always had a garbage-in, garbage-out feeling but that feeling may increase in 2024.
This development is going to be a bit demoralizing for those of us trying to be rigorous and precise. In 2023, I have seen O-1 and EB-2 NIW cases that really should not have been filed at all, and in a couple instances O-1s and EB-2 NIW cases and even an EB-1A case that really should not have been approved! I expect 2024 will be more of that.
The Border.
It is possible that 2024 will be the year when something comes out of Congress to mitigate the growing crisis at the southern border between the United States and Mexico. There is talk that something might actually pass in January 2024 although I continue to be skeptical there will be agreement between the various factions in Congress.
Overall, I continue to believe that EB immigration will never get any real attention until the border situation has stabilized. For many Republicans, the term “immigration” IS the border. If things stabilize at the border, I think there is a possibility of some modest niche fixes to improve EB immigration.
The Presidential Election.
This month - December 2023, the most recent polls suggest Donald Trump is the frontrunner to win the November 2024 Presidential Election. If Trump does win against Biden in November 2024, then it seems very likely a variety of things could happen to make EB immigration more challenging in 2025 and beyond. For those of us involved in EB immigration during the first Trump term, we know how much the system was upended. It was like 4 years of constant stress and headaches.
As we get further into 2024, if Trump does win the Republican primary and is on track to possibly win the White House, look for the Biden Administration to try to make policy changes to hopefully protect its legacy and look for employers and lawyers to look for solutions and strategies that protect employees prior to the new Administration that will start in January 2025.
PS: Personal/Professional News.
As of January 1, 2024, my firm (Webber Law Firm 2.0) has changed its name. The new firm name is Webber Arredondo Oja, LLC, to reflect that the two attorneys who work with me, Candelario Arredondo and Thomas Oja, have become shareholders (co-owners) of my firm.
Candelario and Tom and I have worked together for several years, initially at Webber Law Firm 1.0, then at Dorsey & Whitney, and now at the new firm.
Candelario was born in Mexico and raised in northern California. In 2005, he moved to Minnesota with his wife to attend University of St. Thomas Law School in Minneapolis. He has since had 3 kids and has practiced immigration law since 2010, initially at a legal aid organization (SMRLS). Candelario and I have worked together since 2014. Candelario tries to visit California every year to see family and visit In-n-Out Burger. Just don’t make him tell you which is a higher priority!
Tom was born and raised in northern Minnesota where he now lives with his wife and 3 kids. (Tom telecommutes to our Twin Cities office). Tom started at Webber Law Firm 1.0 as a college student intern back in 2009. We worked together for 2+ years, then he took a hiatus for a few years and came back in 2016. Tom is a recent graduate of William Mitchell College of Law, where he finished first in his class. Tom is a fan of all the things northern Minnesota has to offer. Some of his adventures are recorded for posterity here.
I am personally thankful to have two of my friends join me as co-owners of the firm. They have committed to investing their time and energy to helping continue to build our firm in 2024 and the years ahead.
In terms of the day-to-day services we provide, we don’t have any immediate plans to make changes.
For those of you who are clients of our firm, thank you for your continued support!
