Written by Ana Delgado Hualde, Esq., Associate Attorney.
The U.S. immigration law environment continued to evolve in 2023.
There was further stabilization from the changes put in place during the COVID-19 pandemic. Yet, backlogs and delays persist. There were also new policies, procedures, proposed rules and court rulings that impacted employment-based, humanitarian and family-based immigration.
Below is a summary of the state of the immigration world in 2023 and a look ahead to the prospects for 2024.
There were many important issues and changes to the employment-based immigration landscape in 2023, including:
FY 2024 H-1B visa lottery
There were a record-high 780,884 H-1B registrations for the FY2024 H-1B lottery, an increase of almost 300,000 applicants from the previous fiscal year for 85,000 available visas (of which 20,000 are reserved for foreign nationals who have obtained an advanced degree from a U.S. college or university).
United States Citizenship and Immigration Services (USCIS) conducted an initial random selection of H-1B cap registrations in March 2023. However, the organization determined that a second lottery selection was required in order to meet the mandated cap. That lottery was conducted in late July.
Concerns over fraud and multiple entries for the same beneficiary have let the the Biden administration to propose altering the H-1B visa program and cap lottery in future fiscal years.
Proposal to alter H-1B visa program
The Department of Homeland Security (DHS) released a proposed rule in mid-October which, if implemented, would have significant impacts on the H-1B visa program, affecting both employers and prospective employees.
The proposed rule is intended to increase fairness in the H-1B cap process, expand and better define specific eligibility requirements, and increase flexibility in key areas for both employers and applicants. For instance, the rule specifies that each cap-subject beneficiary will only be registered for the lottery once, regardless of how many registrations are submitted in their name; expands the eligibility criteria for cap-exempt status; allows the issuance of H-1B status to business owners who own interest in the H-1B petitioning entity; allows the “bona fide job offer” to the potential H-1B recipient to include “telework, remote work or other off-site work within the United States;” and more.
The new regulations may not become law exactly how they were published in the Federal Register. The rule is subject to a 60-day public comment period, which closes on Dec. 22, 2023. The Biden administration and the DHS will then evaluate the comments and make any applicable changes before releasing a final rule, likely in 2024.
Conclusion of COVID-19-related Form I-9 flexibilities/New Form I-9
Earlier this year, the DHS and U.S. Immigration and Customs Enforcement (ICE) terminated certain Form I-9 flexibilities that were implemented during the COVID-19 pandemic.
Shortly after, the DHS released a new Form I-9 and an optional alternate document verification procedure, which made some of those temporary policies permanent.
The new document verification procedure creates a process which allows “qualified employers” to view employee documentation virtually. To date, the Department of Labor (DOL) and DHS have defined “qualified employers” as those who are enrolled in E-Verify, the free online system that allows for the electronic employment eligibility verification of newly hired employees.
Further, the new update significantly altered the presentation of the Form I-9 in an effort to streamline the verification process.
Canada’s ‘streamlined work permit’ program for U.S. H-1B visa holders
In mid-July, the Canadian government began allowing U.S. H-1B visa holders to receive a “streamlined work permit” in Canada. The permit is valid for up to three years and authorizes the individual to work for “almost any employer anywhere” in Canada.
The H-1B visa holder’s spouse and dependents are also eligible to apply for a “temporary resident visa” in Canada, which includes a work or study permit.
The program reached its 10,000-application limit less than two days after opening and the “H-1B visa holder work permit” application status is officially listed as closed on the Immigration, Refugees and Citizenship Canada (IRCC) website. There is a possibility the Canadian government may reopen the program in the future.
Backlogs and related policies
USCIS and the Department of State (DOS) continue to struggle with backlogs, which were worsened by the COVID-19 pandemic and other factors.
Both agencies implemented multiple new policies and procedures this year designed to reduce the extended processing delays caused by these backlogs.
For example, USCIS increased the maximum validity period for both initial and renewal Employment Authorization Documents (EAD) to five years for some foreign nationals, including those applying for adjustment of status, refugees, foreign nationals granted asylum, recipients of withholding of removal, as well as foreign nationals applying for asylum or cancellation of removal.
Because of the backlogs and delays, USCIS also issued guidance in mid-February which changed the Child Status Protection Act (CSPA) age calculation for some adjustment of status applications.
The change provided “more certainty” for children of lawful permanent residents about their eligibility to adjust status before “aging out” and becoming ineligible to immigrate to the United States (based off of their parent’s petition) after they turn 21.
Moreover, the DOS announced earlier this year a pilot program that will allow H-1B visa holders to renew their visas inside the United States, rather than traveling to an embassy or consulate abroad. The program is expected to launch in January 2024 and initially be limited to just 20,000 applications.
Throughout its time in the White House, the Biden administration has emphasized the importance of STEM to U.S. competitiveness and national security.
Because of this emphasis, the administration released updated guidance related to STEM degree holders and the National Interest Waivers (NIW), which has positively impacted applicable foreign nationals in 2023.
The updated guidance clarified that almost all STEM graduates can be eligible, or will soon be eligible, for an NIW, depending on their level of degree and professional experience. This provides a pathway to permanent residency, and ultimately citizenship, for more qualified foreign nationals that may not have been available previously.
The NIW allows eligible foreign nationals to self-petition — meaning they do not need to secure an employer sponsor — and skip the PERM Labor Certification, the first step of the green card process, which is both costly and time-consuming.
Additionally, the Biden administration added eight new fields of study to the STEM Designated Degree Program List in mid-July. This change allows F-1 students enrolled in those majors to qualify for 36 months of Optional Practical Training, as opposed to the standard 12 months.
The eight new fields of study included:
- Landscape Architecture
- Institutional Research
- Mechatronics, Robotics, and Automation Engineering Technology/Technician
- Composite Materials Technology/Technician
- Linguistics and Computer Science
- Developmental and Adolescent Psychology
- Geospatial Intelligence
- Demography and Population Studies
The full STEM Designated Degree Program List can be found via the Department of Homeland Security website.
Multiple new humanitarian immigration policies and programs were created/expanded during the last calendar year.
In mid-August, DHS Secretary Alejandro Mayorkas announced the extension and redesignation of Temporary Protected Status for nationals of both Ukraine and Sudan because of the temporary conditions that “prevent individuals from safely returning” to either country.
TPS for both countries was extended for at least 18 months, while the redesignation expanded eligibility to foreign nationals from Sudan and Ukraine living in the United States on or before August 16, 2023.
Simultaneously, the DHS also granted “Special Student Relief” to F-1 visa holders from both Sudan and Ukraine. The relief allowed applicable students to “request employment authorization, work an increased number of hours while school is in session, and reduce their course load” while maintaining their status.
The Biden administration also created a process for nationals of Cuba, Haiti, Nicaragua and Venezuela to apply for parole to enter the United States for as many as to two years “for urgent humanitarian reasons or significant public benefit.”
To be eligible for the program, foreign nationals from those countries must have a sponsor in the U.S. who is willing to provide “financial support for the duration of their parole;” pass “robust” security vetting; warrant a favorable exercise of discretion; and meet any other required eligibility criteria.
Additionally, the Biden administration published a final rule in May 2023 that, in most cases, denied entry to foreign nationals who did not schedule an appointment through the CBP app, or passed through a third country and did not seek asylum in that location.
The rule was criticized by immigrant rights advocates such as the Human Rights Watch as well as the ACLU and was initially blocked by a U.S. District Judge from the Northern District of California in July. However, the 9th U.S. Circuit Court of Appeals overturned that ruling in early August.
The policy remains in place at the time of publication.
In mid-September, a federal judge in Texas again ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful.
The ruling effectively reaffirmed a prior finding from the same judge, U.S. District Judge Andrew Hanen, in 2021 that the President exceeded his authority, and that the DACA program was therefore illegitimate.
In July 2021, Hanen ruled against the original program, implemented by former President Barack Obama in 2012. Following that 2021 finding, the Biden administration published a final rule in the Federal Register in an effort to “preserve and fortify” DACA.
Soon after, the U.S. Court of Appeals for the Fifth Circuit upheld Hanen’s finding but sent the case back to him to review the final rule, which prompted the decision earlier this year.
It is important to note that Hanen’s ruling does not end DACA in its entirety. Instead, the decision extends the current injunction in place against the program and continues to bar initial/new applications for those who have never had DACA. Therefore, applications from those already in the program will continue to be accepted and adjudicated by USCIS.
The Biden administration has not been able to process initial applications for DACA since Hanen issued his first injunction in July 2021.
Public Charge Rule
USCIS clarified in late 2022 and early 2023 the factors in determining whether a foreign national would be deemed inadmissible to the U.S. based upon the likelihood of ever becoming a public charge (someone with “significant reliance on the government for support”).
The public charge rule applies to all applicants for admission to the U.S. or adjustment of status, with limited exceptions. Questions on public charge are integrated into the I-485, Application for Adjustment of Status which must be answered by each applicant completing the form.
Vaccine mandate ends
The United States officially ended the COVID-19 vaccine requirement in mid-May 2023 for all international travelers entering the country via air or at land ports-of-entry. The move coincided with the expiration of the COVID-19 public health emergency.
The vaccine mandate was originally implemented in late 2021, requiring all international travelers entering the United States to be “fully vaccinated” against COVID-19.
Looking ahead to 2024
The below items are important to monitor in 2024, as they could influence immigration policy in the United States.
Potential government shutdown
The United States government came close to a shut down twice in 2023. However, the two Houses of Congress and President Biden agreed to short-term temporary spending bills as the deadline neared on both occasions.
The latest short-term bill expires in early 2024, with potential for a shut down looming. A shut down would have a significant impact on U.S. immigration agencies.
Backlogs expected to continue
As mentioned above, both USCIS and the DOS continue to deal with backlogs. There was little to no improvement in most processing times during the last year, despite some of the new policies and procedures that were implemented in 2023. The backlogs are expected to continue well into 2024.
Healthcare worker/education worker shortages
The healthcare and education industry in the United States continue to be in significant need of professional staff.
The United States is expected to face a shortfall of 37,800 to 124,000 doctors by 2034, according to a 2021 study conducted by the Association of American Medical Colleges, while the “total supply of RNs decreased by more than 100,000 from 2020 to 2021,” a study published in Health Affairs in early 2022 found.
Meanwhile, the education industry is facing a shortage of top-quality teachers, professors, and other professionals, and the recent pandemic only magnified that need.
There are multiple immigration strategies that can be utilized for healthcare and education employers to hire foreign national employees. But the shortfalls will likely continue into 2024 and beyond, absent congressional legislation.
The 2024 election
The 2024 election also could have an impact on U.S. immigration policy.
Democrats will enter the election with control of the United States Senate, while Republicans have a majority in the House of Representatives. Either house could swing after the results in November 2024, which could lead to either the Democrats or Republicans holding a majority in both houses, or a continued split in control for the following two years.
Meanwhile, it appears that President Joe Biden will seek re-election in 2024 against a Republican challenger. At the time of publication, former President Donald Trump is leading in a large majority of the Republican primary polls.
Regardless of the results of the election, it is unlikely that significant immigration reform will pass through both houses of Congress and be signed into law by the president because of the current political climate.
The immigration landscape is more likely to be altered by the results of the presidential election. The president has the power to change policies without congressional approval by issuing executive orders, final rules and via other procedural measures.