The new year promises a rollercoaster ride for anyone keeping tabs on the U.S. immigration policy. From a lottery revamp to skyrocketing fees and potential degree restrictions, the H-1B landscape is set for a major makeover. Immigration experts have hinted that 2024 will be a year of significant shifts and uncertainties.

This article discusses some key issues concerning the H-1B visa this year.

H-1B Lottery Revamp

The current H-1B selection process often involves multiple registrations for the same individuals, creating administrative inefficiencies. To remedy this, USCIS had proposed directly selecting beneficiaries, streamlining the process and minimizing the risk of qualified candidates going unnoticed. However, this shift hinges on a clear definition of “specialty occupations”, as the proposed rule introduces stricter criteria.

The revised definition may exclude individuals whose degrees do not perfectly align with their intended job titles. This could disproportionately impact fields like marketing and finance, where relevant expertise can be gained through experience and complementary coursework beyond a specific degree title. Such narrowing also clashes with the Biden administration’s focus on attracting AI talent, as many AI professionals may not hold degrees explicitly labeled as “AI”.

H-1B Fee Hikes

Amidst proposed changes to the H-1B program in 2024, a surge in fees emerges as a significant point of tension. USCIS’s proposed rule envisions substantial cost increases for employers, including a potential $600 Asylum Program Fee accompanying certain visa petitions and a staggering 2,050% hike in the H-1B Electronic Registration Fee from $10 to $215. While acknowledged as seemingly “exorbitant” by USCIS itself, this move could necessitate an additional $100 million annually from employers. Beyond H-1B, L-1 and O-1 petitions would also encounter substantial fee increases, and adjustment of status fees stand to jump by 130%. This cost burden further compounds the uncertainty surrounding the final rule’s publication in April 2024 and its impact on the upcoming H-1B selection process.

Adding fuel to the fire, USCIS recently announced a final rule inflating the premium processing fees based on which Form I-129 fees would also witness a $305 increase effective February 26, 2024. Steering the immigration system will become increasingly intricate and expensive for companies in the year ahead.

A Ray of Hope

The domestic H-1B visa renewal pilot program initiated by the U.S. Department of State offers a positive development. It accepts applications from January 29 to April 1, 2024, or until slots are filled. Participation is voluntary, and those not meeting the criteria can apply at a U.S. embassy or consulate abroad. Limited to renewals in India and Canada, applicants must use an online navigator tool to assess eligibility, complete form DS-160, pay a $205 MRV fee, and mail documents. The program offers 20,000 slots, released weekly from January 29 to February 26, 2024, on a first-come, first-served basis until filled or April 1, 2024.

While currently limited in scope, it demonstrates a potential path towards simplifying renewals and reducing logistical hurdles for both employers and employees. Expansion of such programs could significantly ease administrative burdens in the future.

Summing Up

2024 promises a complex and dynamic landscape for immigration policy. While reform initiatives aim to streamline certain processes, introducing restrictive measures and legal challenges may present new obstacles.  The year will likely see significant shifts in H-1B visas, fee structures, and potential legal precedents.

So, what’s a company to do? As always, staying informed and engaged will be crucial for navigating the intricacies of the U.S. immigration system. Be prepared for potential delays, factor in the increased costs, and consider alternative visa options if needed.

OnBlick is dedicated to closely tracking USCIS developments and will promptly provide the latest H-1B updates as soon as they are released.

In a move aimed at providing clarity and consistency in determining worker classification, the U.S. Department of Labor (DOL) has announced a final rule on classifying workers as employees or independent contractors under the Fair Labor Standards Act (FLSA). The new rule, set to take effect on March 11, 2024, replaces the 2021 Independent Contractor Rule and reinstates a multifactor analysis consistent with established judicial precedent.

Addressing a Serious Issue

Employee misclassification has been a longstanding issue impacting workers’ rights, particularly regarding minimum wage and overtime pay eligibility. The misclassification deprives workers of essential rights and protections, facilitates wage theft, enables some employers to undercut law-abiding competitors, and poses a threat to the broader economy.

Acting Secretary of Labor Julie Su emphasized the seriousness of misclassifying employees as independent contractors, stating that it is a problem that needs addressing to protect workers from exploitation. The new rule aims to ensure that workers are classified correctly and receive the wages they have earned.

Key Elements of the Final Rule

The final rule reintroduces a multifactor analysis that courts have employed for decades to determine a worker’s status as either an employee or an independent contractor. The analysis involves considering six key factors:

• Opportunity for Profit or Loss: Examining whether a worker can profit or lose based on their managerial skill and financial investment.
• Financial Stake and Nature of Resources: Assessing the financial stake and nature of any resources a worker has invested in the work.
• Degree of Permanence: Evaluating the degree of permanence in the work- relationship between the worker and the employer.
• Degree of Control: Determining the employer’s level of control over the person’s work.
• Essentiality to the Employer’s Business: Considering whether the work performed by the person is essential to the employer’s business.
• Worker’s Skill and Initiative: Factoring in the skill and initiative demonstrated by the worker in performing the tasks.

Rescinding the 2021 Independent Contractor Rule

The final rule also rescinds the 2021 Independent Contractor Rule, which the DOL believes is inconsistent with the law and longstanding judicial precedent. This move is part of the department’s effort to align worker classification standards with established legal principles.

Stakeholder Involvement

In developing the new rule, the DOL’s Wage and Hour Division (WHD) actively sought stakeholder input during forums held in the summer of 2022 and the subsequent comment period following the proposal’s announcement in October 2022. This collaborative approach reflects the department’s commitment to considering diverse perspectives in crafting regulations that impact employers and workers.

Conclusion

The U.S. DOL’s final rule on worker classification represents a significant step in addressing the challenges associated with employee misclassification. By reinstating a multifactor analysis consistent with longstanding legal precedent, the rule aims to provide clarity for employers and workers alike, safeguarding workers’ rights and promoting fairness in the labor market. Employers are advised to familiarize themselves with the new rule and ensure compliance to avoid legal consequences associated with misclassification.

OnBlick remains committed to monitoring the WHD and will promptly share the latest updates as soon as they become available.

The United States Citizenship and Immigration Services (USCIS) has announced an upcoming adjustment to premium processing fees for most forms, effective February 26, 2024. This development demands careful consideration for applicants seeking expedited visa processing.
Here’s everything you need to know about this update.

Background

The USCIS Stabilization Act (passed in September 2020) established the current premium processing fees and the authority for the Department of Homeland Security (DHS) to adjust the premium fees on a biennial basis. After leaving these fees unchanged for the three years following the passage of the Act, DHS is now increasing the premium processing fees USCIS charges for all eligible forms and categories to reflect the amount of inflation from June 2021 through June 2023, according to the Consumer Price Index for All Urban Consumers.

The Scope of the Adjustments

USCIS cites inflationary pressures as the primary justification for the revised fees. The agency asserts that processing costs have risen, and the adjustments are necessary to maintain operational efficiency and service quality. The fee adjustments represent a 12.7% increase across most eligible forms.

Here’s a summary of the changes:

Source: USCIS

Implications for Applicants

The impact of this change warrants individual assessments. Applicants facing pressing deadlines or time-sensitive requirements may deem the expedited processing worth the additional expense. However, for those with greater flexibility, standard processing timelines may offer a more budget-conscious approach.

Opting for premium processing may be prudent for:

• Applicants with imminent deadlines, such as critical job start dates.
• Individuals nearing visa expiration and requiring prompt renewal to avoid legal complications.
• Those prioritizing rapid resolution and valuing the peace of mind associated with expeditious processing.

Conversely, standard processing may be preferable for:

Applicants comfortable with longer processing timelines, which can range from several months to over a year, depending on the form and workload. Individuals focused on minimizing costs and considering the increased fee a significant financial burden. Those lacking immediate pressures or deadlines linked to their application.

Important Reminders

The aforementioned fee adjustments apply to applications filed on or after February 26, 2024. Premium processing does not guarantee a specific decision timeframe, although USCIS aims for 15 calendar days. Regular application status updates are readily available online or through USCIS call centers, regardless of the chosen processing method. In conclusion, the revised USCIS premium processing fees present a new layer of consideration for visa applicants. By carefully weighing the urgency of their needs, budgetary limitations, and personal priorities, individuals can make informed decisions and navigate the path toward their immigration goals with clarity and confidence.
OnBlick will continue to monitor USCIS and will let you know as soon as new updates become available