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The Business Immigration Landscape: 2023’s Milestones and What’s Next in 2024

Dec 28, 2023

2023 has been a whirlwind year in the world of business immigration, marked by unprecedented changes that reshaped the landscape significantly. From record-breaking H-1B registrations to pivotal policy shifts, the past year has been full of challenges for immigration professionals, international employees, and their families. As we transition into 2024, we want to review the highlights of 2023 and dive into what immigrants and their families can expect in 2024.

2023: A Year of Challenges and Changes

Record H-1B Registrations: A Call for System Reform

In 2023, we witnessed a staggering 781,000 H-1B work visa registrations. With 96,000 individuals accounting for 408,000 of these entries, this year’s H-1B lottery brought to light potential abuses of the system and highlighted the need for a revised selection process. USCIS is now considering changes to the lottery system, favoring a one-entry-per-person model to ensure equal opportunity for all applicants.

PERM Case Settlements: Balancing Compliance and Non-Discrimination

Following the 2021 Facebook green card litigation, Apple’s $25 million settlement over employment discrimination allegations in its PERM green card sponsorship program brought compliance issues to the forefront in 2023. These cases, although compliant with green card sponsorship regulations, have triggered discussions about how standard recruitment practices should align with the PERM process. The challenge lies in maintaining compliance with PERM’s recruitment standards while ensuring these practices do not result in discrimination. This situation highlights the need for a careful balance between following PERM guidelines and upholding non-discriminatory recruitment policies.

Priority Date Retrogression: Immigrants in Limbo

The aftermath of COVID-19 has resulted in fewer family-based visa numbers being carried over, causing a considerable backlog in Priority Dates. In 2021 and 2022 we saw a significant amount of unused family-based visa numbers as a result of the pandemic that prompted the closure of consulate posts globally and brought a temporary halt to the processing of family-based cases. Those unused numbers were carried over for use into the employment-based categories. This situation has created widespread uncertainty among many immigrants awaiting their visas. As a remedy, USCIS implemented new measures in 2023, notably extending the validity of Employment Authorization Documents (EADs) and Advance Parole (APs) to up to five years. This extension offers significant relief to immigrants stuck in this prolonged waiting period, providing them with a more stable and secure status in the interim.

Rise in Administrative Processing

In 2023, we saw a significant rise in Administrative Processing, a trend that has crucial implications for immigration timelines. The reasons behind this surge include heightened security checks, increased application scrutiny, and a backlog exacerbated by the COVID-19 pandemic. This trend underscores the need for more efficient processing methods and transparent communication from immigration authorities.

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2024: Preparing for More Changes and New Initiatives

DOS Pilot Program for Stateside Visa Renewals

A significant development to look out for in 2024 is the Department of State’s (DOS) pilot program for stateside H-1B visa renewals. This initiative, limited to 20,000 applications, is a welcome change for H-1B visa holders, particularly those who have previously obtained their visa stamps from U.S. consulates in India or Canada. The application window, running from January 29 to April 1, 2024, will see around 4,000 application slots released weekly until February 26. To be eligible, applicants must currently be in the U.S. with valid H-1B status and a valid H-1B I-94. This program marks a considerable shift in the visa renewal process, offering a streamlined approach for some H-1B holders and potentially reducing the need for international travel for visa stamping, a common challenge under the current system.

H-1B Modernization: Towards a More Equitable System

2024 is poised to bring significant changes in the H-1B visa program through the implementation of modernization rules and a move towards a more equitable system. The most notable change is the shift in the H-1B lottery selection process, which will now focus on unique beneficiaries rather than unique registrations. This is designed to level the playing field by reducing the chances of multiple entries by the same individual, thereby increasing the opportunity for a diverse range of applicants. Additionally, the Cap-Gap protection, which is crucial for many international students transitioning to work visas, will be extended to April 1 of the fiscal year. This extension will allow employers to request a start date on or after October 1 for their employees, providing greater flexibility and security in employment continuity.

DoL’s Approach to PWD Processing Times

The Department of Labor (DOL) is undergoing significant changes in its approach to Prevailing Wage Determinations (PWDs), a critical component of the employment-based visa process. To accommodate new Standard Occupational Classifications (SOCs) and increased application volumes, the DOL has conducted extensive ‘pressure testing’, leading to a new standard processing time of six months for PWDs in 2024. This change reflects a move to manage the influx more efficiently and accurately. In addition, the introduction of new, streamlined two-page forms for Labor Certification PWDs, now integrated into USCIS systems, is indicative of a closer and more coordinated relationship between the DOL and USCIS. This integration is expected to facilitate smoother processing and better alignment between the agencies, ultimately benefiting employers and applicants by providing more predictable and reliable processing timelines.

Emerging EPT Laws and Their Impact on Immigration

The expansion of Equal Pay Transparency (EPT) laws is set to significantly impact the immigration landscape in 2024. Following in the footsteps of New York and California, states like Hawaii and Illinois are expected to enact EPT laws within the next year. This development is especially pertinent for employers involved in the green card process, which requires labor market testing through advertised postings for current employees seeking PERM certification. As this trend continues to spread across the U.S., it is crucial for companies sponsoring employees for PERM-related green card processes to align their recruitment practices with these state-specific EPT laws.

As we look back at 2023 and forward to 2024, it’s clear that the world of U.S. business immigration is continuously evolving. The changes and challenges we’ve seen this year will hopefully pave the way for a more streamlined and fair immigration process in the future. Keep an eye on these developments to stay one step ahead in the dynamic world of business immigration.