Business immigration visa quotas have long presented a major hurdle for employers and employees. There is no logic to the quota systems that Congress has in place, and quotas are not accurately connected with economic reality.

It is important for the US economy that Congress takes the necessary steps to update the employment-based visa system and reform the quota issue. Without these changes, employers will continue to struggle to fill jobs in many industries, such as nursing, and other highly skilled positions.

Continue reading the full article, published by Bloomberg Law Jan. 18, 2023.

Amid the evolving global economy throughout the past year, employers may be reassessing their approach to talent acquisition and retention. Companies are navigating uncertainty by recalibrating mobility programs, aiming to not only attract but also retain talent to fulfill a skills gap in the U.S. workforce. Central to leveraging foreign talent is the power of immigration branding and messaging. A strategic emphasis on employee longevity proactively curtails workforce attrition and preempts potential labor shortages in the future.

Attracting talent

Understanding and leveraging avenues offered by U.S. immigration laws can be pivotal in securing the right skills and meeting business demands to drive success. Employers commonly leverage F-1 student OPT/STEM OPT training and the H-1B and L-1 work visa programs to source foreign workers in the talent ecosystem.

Foreign students with work authorization pursuant to OPT/STEM OPT are prime candidates for expanding a company’s talent pool with long-term development potential. Employers may attract foreign students through internships while the student completes their academic program, post-graduation employment pursuant to OPT/STEM OPT, and subsequent work visa and green card sponsorship. For most foreign students, switching from a student visa to a work permit is often challenging due to the restrictions and limited availability of H-1B visas. However, companies with an overseas presence may be able to set up strategically located hubs abroad to recruit and employ foreign nationals who were not able to obtain an H-1B visa, and then transfer them back to the United States with L-1 intracompany transfer visas following their employment abroad over at least one year. A company’s corporate immigration policy outlining support of various immigration pathways, and benchmarked against the policy of industry peers, is a competitive tool to meet foreign workers’ needs and attract high-potential talent.

Retaining talent

In response to the need for talent retention, employers are strategically tapping into their existing talent pool to bolster operational efficiency. With post-COVID-19 employees seeking greater fulfillment, employers may want to consider proactively refining their retention efforts to include top-tier foreign talent.

Companies are increasingly turning to their internal talent reservoirs to bridge skill gaps and curtail additional hiring costs. Retaining current talent is becoming pivotal for success, mobility, and business continuity. To address the evolving landscape of talent retention and the demand from foreign talent for immigration support, employers may consider several key strategies. 

Various immigration pathways offer avenues for continued employment, providing stability to existing talent. For example, some companies leverage sponsorship for work visa programs and employment-based green cards to retain skilled foreign workers. Payment of legal fees and the provision of immigration counsel are initial steps in this effort, and other offerings including immigration seminars for employees and family members, an internal immigration portal with FAQs and self-service features that provide status reports, and access to documents and opportunities for interaction with the immigration team are also important. Employers leverage streamlined extension processes for work authorization to ensure continuity for employees and the business without disruptions. Embracing technological advancements in immigration processes may streamline procedures, reduce processing times, and minimize errors. Further, a robust green card sponsorship program signals a long-term commitment to retain valuable talent and grants employees a sense of security and stability in their professional journey within the company. Clearly defined benchmarks when the company initiates green card sponsorship are not only a recruitment and retention tool but also ensure that foreign workers do not lose immigration status or work authorization. 

Adaptability and foresight also benefit companies navigating corporate immigration policy frameworks. Companies can implement consistent yet flexible approaches to immigration sponsorship that cater to both business needs and the foreign worker’s circumstances. For example, timing adjustments in initiating green card sponsorship may prevent work authorization gaps. Evaluating risks versus benefits might lead to early green card sponsorship for students to safeguard their status and work authorization if they are not selected in the H-1B lottery. Exploring alternative sponsorship options, such as supporting family-based or self-sponsored petitions, could be viable alternatives for a company to retain critical talent and may streamline the process and save time. Finally, recognizing and addressing the needs of dependents, such as spouses and children, within the immigration sponsorship process may be determinative to retain valuable talent.

Developing talent

Companies recognize the importance of not just attracting and retaining foreign talent but also developing their skills and potential. With strategic planning, immigration strategies can help advance the capabilities of international talent within a corporate setting.

Demand for H-1B visas has increased while the number of available visas has remained static. In response, employers are assisting international talent to develop their credentials to become eligible for an O-1 visa as an alternative. The O-1 visa for individuals with extraordinary abilities allows companies to support foreign workers in advancing their careers by recognizing their exceptional talent and contributions. Although the standard to qualify is high, for many foreign workers there are specific steps they can take to proactively bolster their resume toward becoming “O-1 visa ready.”

Sponsorship of certain visa categories, such as EB-1A for individuals with extraordinary ability or a National Interest Waiver to bypass the requirement to test the labor market, may encourage innovation and leadership among an employer’s foreign workers. Elevating a green card process to a higher preference category generally accelerates the process and the prospect of a higher preference category may lead foreign nationals to excel in their fields, drive innovation, and propel critical progress for the company.

Multinational employers are increasingly implementing international rotational programs and cross-border exchanges to foster skill development and broaden experiences. This approach not only addresses internal labor shortages but also mitigates the need for expensive talent searches and replacements. These programs offer benefits akin to longer-term assignments, facilitating knowledge transfer and nurturing company culture at a reduced cost. Such exposure can empower foreign workers with diverse market insights, enriching their skill sets and fostering a global perspective. Moreover, it allows businesses to harness internal expertise to bolster critical initiatives. However, the rise in popularity of these short-term rotation and remote work programs may invite heightened compliance measures, including increased audits and inspections. Hence, employers should anticipate a trend towards more rigorous immigration requirements aligning with labor, tax, and social security laws.

On Nov. 28, 2023, the U.S. Department of State (DOS) released a press release highlighting its visa operations achievements in the federal fiscal year 2023 (FY 2023) from October 2022 through September 2023. During FY 2023, DOS issued more than 10.4 million nonimmigrant visas globally and half of U.S. embassies and consulates adjudicated more nonimmigrant visas than ever before, indicating not only a return to pre-pandemic visa processing volume, but also near record levels for a handful of noteworthy nonimmigrant visa categories.

Below is a summary of DOS visa operations and achievements during FY 2023:

  • Issued nearly eight million visitor visas for business and tourism (B1/B2 visas), the highest number of B1/B2 visas issued since FY 2016.
  • Adjudicated the highest number of student visas (F-1 visas) since FY 2017, with a total of over 600,000 student visas; DOS embassy and consulates in India issued a record of more than 140,000 student visas; DOS issued nearly 40,00 student visas to African students, with nearly 10,000 visas issued to students from Nigeria.
  • Helped address the shortage of U.S. workers in agriculture and other sectors needing seasonal or temporary workers by issuing an all-time high 442,000 visas to temporary and seasonal workers.
  • Issued 590,000 nonimmigrant visas to highly skilled workers and executives to work alongside American experts, especially in some of the United States’ most critical fields, including artificial intelligence and health care.
  • Processed and issued roughly 365,000 nonimmigrant visas to airline and shipping crew members to provide essential services for maintaining global transportation and supply chains that support the U.S. and global economies.

According to DOS, “these achievements were possible because of innovative solutions, such as expanding interview waiver authorities that allow frequent travelers who meet strict national security standards to renew their visas without having to visit an embassy or consulate.” Moreover, DOS is actively exploring new technologies and processes to streamline operations, including the option of domestic visa renewals in select visa categories.

With its historic fiscal year and plans for continued improvements in visa processing efficiency, DOS visa operations could have a profound impact on the U.S. economy given that international visitors contribute roughly $239 billion in annual spending to the U.S. economy and support an estimated 9.5 million American jobs.

On Oct. 30, 2023, President Biden issued a wide-ranging executive order (EO) on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” The stated goal of this order is promoting “responsible innovation, competition, and collaboration that will allow the United States to lead in AI and unlock the technology’s potential to solve some of society’s most difficult challenges.” Among the many provisions included in the EO are directives to federal agencies and departments, including the State Department and the Department of Homeland Security, to develop policies and procedures in support of attracting and retaining foreign nationals working and studying in the field of artificial intelligence (AI).

Section 5, titled “Promoting Innovation and Competition,” specifically addresses immigration concerns and includes the following directives:

Related to consular processing

  • Within 90 days, the Secretary of State and the Secretary of Homeland Security “shall (i) streamline processing times of visa petitions and applications, including by ensuring timely availability of visa appointments, for noncitizens who seek to travel to the United States to work on, study, or conduct research in AI or other critical and emerging technologies; and (ii) facilitate continued availability of visa appointments in sufficient volume for applicants with expertise in AI or other critical and emerging technologies.”

Related to J-1/F-1 visa holders

  • Within 120 days, the Secretary of State will “(i) consider initiating a rulemaking to establish new criteria to designate countries and skills on the Department of State’s Exchange Visitor Skills List as it relates to the two-year foreign residence requirement for certain J-1 nonimmigrants, including those skills that are critical to the United States and (ii) consider publishing updates to the 2009 Revised Exchange Visitor Skills List (74 FR 20108), and (iii) consider implementing a domestic visa renewal program under 22 C.F.R. 41.111(b) to facilitate the ability of qualified applicants, including highly skilled talent in AI and critical and emerging technologies, to continue their work in the United States without unnecessary interruption.”
  • Within 180 days, the Secretary of State shall “(i) consider initiating a rulemaking to expand the categories of nonimmigrants who qualify for the domestic visa renewal program covered under 22 C.F.R. 41.111(b) to include academic J-1 research scholars and F-1 students in science, technology, engineering, and mathematics (STEM); and (ii) establish, to the extent permitted by law and available appropriations, a program to identify and attract top talent in AI and other critical and emerging technologies at universities, research institutions, and the private sector overseas, and to establish and increase connections with that talent to educate them on opportunities and resources for research and employment in the United States, including overseas educational components to inform top STEM talent of nonimmigrant and immigrant visa options and potential expedited adjudication of their visa petitions and applications.”

Related to individuals of extraordinary ability and H-1B visa holders

  • Within 180 days, the Secretary of Homeland Security will “(i) review and initiate any policy changes the Secretary determines necessary and appropriate to clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies, including O-1A and EB-1 noncitizens of extraordinary ability; EB-2 advanced-degree holders and noncitizens of exceptional ability; and startup founders in AI and other critical and emerging technologies using the International Entrepreneur Rule; and (ii) continue its rulemaking process to modernize the H-1B program and enhance its integrity and usage, including by experts in AI and other critical and emerging technologies, and consider initiating a rulemaking to enhance the process for noncitizens, including experts in AI and other critical and emerging technologies and their spouses, dependents, and children, to adjust their status to lawful permanent resident.”

Related to PERM applicants

  • Within 45 days the Secretary of Labor, in support of considering updates to the “Schedule A” list of occupations, 20 C.F.R. 656.5, “shall publish a Request for Information (RFI) to solicit public input, including from industry and worker-advocate communities, identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.”

The pandemic continues to impact Latin America’s economies, given global supply chain disruption and reduced trade and tourism. This uncertain economic state has increased social unrest, including political changes and overall governance issues in nations like Venezuela, Chile, Peru and Argentina.

Against this backdrop, some Latin American investors and companies are showing increased interest in investing in the United States, attracted by its geographical proximity, access to a large consumer base, historically stable economy, and legal system. At GT, we have seen a sharp uptick in the number of inquiries from Latin American investors looking into establishing businesses as a vehicle for migration.

When providing pre-immigration planning advice, it is also important to consider the tax implications in the investors’ foreign income, accounts, assets, investments, etc., given that the United States taxes individuals based on their worldwide income. This blog post reviews common visa options for investors and companies from Latin America, and provides tax precautions to consider when moving to the United States.

Common Visa Options

The E-2 and L-1 visas tend to be the most popular options, but understanding which option works best for the particular investor or company’s set of circumstances is a fundamental step in immigration planning. Both visas provide a source of work authorization; however, it is important to note that they have different eligibility criteria and requirements.

The E-2 visa primarily allows investors and employees of a qualifying business to develop and direct their investment in the United States. This visa is designed for individuals or companies from countries that have a treaty of commerce and navigation with the United States – including Chile, Colombia, Mexico and Argentina, among others in Latin America.

On the other hand, the L-1 visa’s main purpose is to allow multinational companies to transfer employees from their foreign offices to a U.S. office. The L-1 visa is not dependent on a treaty of commerce and navigation, and as such, is available to companies from all countries. The L-1 process facilitates intracompany transfers for managers, executives, and employees with specialized knowledge.

The table below provides an at-a-glance comparison between the main elements of the E-2 and L-1 visas:

 Who QualifiesProcessDurationPath to Greencard
E-2Country Eligibility:
· The company established in the United States must have the nationality of a treaty country, i.e., the company must have majority ownership from nationals of a treaty country.
· Investor or employee must be a national of the same treaty country.
Investment:
· Individual or company must have a substantial investment in a U.S. company.
· No minimum investment amount required, but the sum needs to be proportionate to the nature of the business and the overall cost of its establishment.
Appropriate Roles:
· Applicable to principal investors or company employees who hold executive/managerial, or essential skills roles.
Visa is processed directly at the consulate.Visa may be granted for an initial period of up to five years, and an indefinite number of subsequent extensions in two-year increments are available until the duration of the visa stamp, so long as the U.S. company continues to qualify for treaty status.Does not provide a direct path to permanent residency (green card). However, some E-2 visa holders may benefit from other immigration options to permanent residency.
L-1Qualifying Relationship:
· Foreign company must have a qualifying relationship (parent, subsidiary, affiliate, etc.) with a U.S. company.
Country Eligibility:
· Not dependent on the treaty of commerce and navigation with the United States.
· Available to companies from all countries.
· Provides an immigration avenue to nationals of Latin American countries that are not part of an E-2 treaty.
Appropriate Roles:
· Employees being transferred must hold a managerial, executive, or specialized knowledge position.
· Employees being transferred must have worked for the foreign company for one year within the last three years prior to submission of the petition, in a managerial, executive, or specialized knowledge capacity.
Petition is first filed with USCIS. Upon approval, the beneficiary can process the visa at a consulate abroad. Exception: When the company holds a Blanket L, the Blanket L is filed directly with the U.S. consulate abroad.· Status is initially approved for three years.
· Managers/Executives (L-1A) may obtain two subsequent two-year extensions for a total stay of seven years.
· “Specialized Knowledge” (L-1B) employees may obtain one two-year extension for a total stay of five years.
Provides a path to a green card for multinational managers and executives (EB-1C eligibility category).

Tax Considerations

Applying for and/or obtaining any of the non-immigrant visas explained above does not, by itself, convert the holder into a tax resident of the United States, just by virtue of having any of those visas. There are two key definitions that will determine when an individual is considered a resident for U.S. income tax purposes and for U.S. transfer tax purposes. These definitions are not the same.

Generally, an individual who is not a U.S. citizen is considered a U.S. income tax resident for U.S. income tax purposes if the individual meets either: (A) the lawful permanent resident test (i.e., he has a green card) (the “green card test”); or (B) the “substantial presence test.” The substantial presence test is met if an individual is present in the United States for 183 days or more during the current calendar year. The substantial presence test is also met if an individual is present in the United States for (i) at least 31 days during the current year, and (ii) at least 183 days for the three-year period ending on the last day of the current year, using a weighted average formula. There are various exceptions to the substantial presence test that are outside of the scope of this blog post.

For U.S. federal transfer tax (i.e., estate, gift, and generation skipping tax) purposes, an individual who is not a U.S. citizen will be a U.S. resident if the individual is a U.S. domiciliary. An individual is deemed to be a U.S. domiciliary if the individual has lived in the United States, for even a brief period of time, and has no present definite intention of removing himself therefrom. While the test for domicile essentially is a question of the individual’s subjective intent, it may be inferred from the individual’s objective actions and circumstances. In determining whether an individual has established U.S. domicile, courts often look to facts and circumstances such as: (i) the amount of time spent in the United States; (ii) the location of the individual’s principal home and the nature of the individual’s living accommodations in the United States; (iii) the residence of the individual’s family and friends; (iv) the location of the individual’s personal effects, automobiles and other tangible personal property; (v) the location of the individual’s religious and club memberships; (vi) the location of the individual’s place of business; (vii) the location of the individual’s bank accounts; (viii) the location of the individual’s voter’s registration; and (ix) the location of the individual’s driver’s license.

U.S. Federal Income Tax Consequences if the Individual Becomes a U.S. Income Tax Resident

There are several pre-immigration planning steps that can be taken prior to the individual’s immigration. In view of this, any individual considering immigration to the United States should seek individualized tax advice on a pre immigration basis in order to determine the effects of the potential change of U.S. tax residency and the options to alleviate the effects of such change.

Below are the main federal income tax consequences:

  • The individual will be subject to U.S. federal income tax on the individual’s worldwide income.
  • The individual may be able to credit non-U.S. income taxes imposed on the individual’s non-U.S. source income (if any) against the individual’s U.S. federal income tax liability. This is subject to multiple conditions and limitations.
  • The U.S. federal income tax on “ordinary income” (basically, all income except the type of income described in the next paragraph) is currently imposed at graduated rates of up to 37%.
  • The U.S. federal income tax on “long-term capital gains income” and “qualified dividend income” is imposed at rates of up to 20%. Long-term capital gains income includes gains from the sale or exchange of a capital asset (generally, an asset held for investment) held for more than 12 months, and qualified dividend income includes dividends from U.S. corporations and certain “qualified foreign corporations,” such as foreign corporations that either are publicly traded in the United States or qualify for benefits under an income tax treaty between the corporation’s country of residence and the United States, if certain conditions are met. Note that the United States does not have income tax treaties with most countries in Latin America, except for Venezuela and Mexico (Chile has a treaty pending ratification, so it is presently not in force).
  • U.S. individuals are subject to an additional 3.8% Medicare tax on “passive” income above certain minimum income thresholds, such as interest, dividends, annuities, royalties, rents, and capital gains.
  • Depending on the State of residence, the individual may be subject to state income taxes in addition to the federal rates discussed above. Some of the state rates can be significant.
  • The basis in the assets of the individual will not automatically be increased to fair market value when the individual becomes a U.S. income tax resident. There are certain transactions that would allow the individual to achieve a basis step up.
  • There are significant anti-deferral regimes that apply to U.S. citizens and income tax residents owning shares of non-U.S. corporations that limit and, in certain cases, penalize the possibility of deferral of U.S. tax. In certain cases the individual may be required to recognize income based on the income earned by the non-U.S. corporations owned even when the non-U.S. corporations did not distribute any dividends, or to pay an interest charge for any accumulation of income that was subject to deferral (depends on the applicable regime). These regimes are complex, and this is a brief reference in order to alert those interested in considering immigrating to the United States.
  • There are also significant anti-deferral regimes regarding foreign trusts, certain foreign pension plans not qualifying as such for U.S. federal income tax purposes and foreign funds in general.

U.S. Federal Transfer Tax Consequences if the Individual Becomes a U.S. Citizen or Domiciliary

  • U.S. citizens and U.S. domiciliaries are subject to U.S. federal estate tax on the fair market value of the worldwide assets they own or are deemed to own at death. Under current law, the U.S. estate tax is imposed at rates of up to 40% of the fair market value of the decedent’s assets. U.S. citizens and domiciliaries are also subject to U.S. federal gift tax on all assets gifted during life on a worldwide basis. The gift tax is imposed at graduated rates of up to 40%.
  • Each U.S. citizen and U.S. domiciliary may exclude gifts to individuals of up to $17,000 per year (indexed annually for inflation) from U.S. federal gift taxation. In addition, each U.S. domiciliary is allowed a credit that may be used to exempt a certain amount of property from U.S. gift and estate tax. This credit allows a U.S. citizen or U.S. domiciliary to transfer up to approximately $12.92 million (adjusted annually for inflation) of property during life or at death without U.S. federal gift or estate tax. Note that in 2026 the exemption amount will be reduced to around half that amount.
  • U.S. citizens and domiciliaries also are allowed an unlimited estate and gift tax marital deduction for gifts and property that pass to a surviving spouse, so long as the recipient spouse is a U.S. citizen. If the surviving spouse is not a U.S. citizen, there is a mechanism (a QDOT) that would allow the U.S. federal estate tax to be deferred until the death of the surviving spouse if certain conditions are met.
  • The U.S. generation-skipping transfer (GST) tax is an additional transfer tax designed to ensure that property is subject to tax each time it passes from one generation to another. In simplest terms, the GST tax applies each time property passes by gift or at death from a grandparent to a grandchild or more remote descendant (i.e., skipping a generation). If, for example, a grandparent gifts property to a grandchild, the GST tax (in addition to the U.S. gift tax) will apply at the time of the gift. If a grandparent leaves property in trust for a child and the property passes to a grandchild at the child’s death, the GST tax will apply at the time of the child’s death in addition to any U.S. gift or estate tax applicable at the creation of the trust.
  • These taxes are onerous; however, with proper planning, prior to becoming a U.S. citizen or U.S. domiciliary, one’s exposure can potentially be significantly minimized.
  • An individual looking to immigrate to the United States who holds valuable assets may significantly reduce their exposure to the U.S. estate tax by transferring assets to irrevocable trusts that are carefully drafted considering the U.S. estate tax rules before becoming a U.S. citizen or U.S. domiciliary. With careful planning and structuring, the assets held inside the irrevocable trusts should not be subject to the U.S. federal estate tax on the individual’s passing or the passing of the individual’s descendants. This kind of planning is very involved and has a lot of technical considerations to address, so this would require individualized advice to assess its viability and requirements.
  • There are other options also to plan more efficiently prior to becoming a U.S. citizen or U.S. domiciliary including, but not limited to, gifting, using of insurance, among others.

It is important to note that this blog post provides a general view of the immigration aspects and tax consequences to be considered and does not apply to any particular or specific case. It is provided for informational purposes and does not constitute a final opinion or legal advice. Please consult with an immigration and tax attorney regarding the best options applicable for you or your company’s particular situation. Please note that the content of this blog post is based on current legislation, which may change from time to time. We do not undertake the obligation to update this post if, after the publication, changes to the immigration or tax laws affect its content.

On July 12, 2023, the U.S. Department of Homeland Security (DHS) announced the addition of eight new fields of study to the STEM Optional Practical Training (OPT) program. The OPT program allows foreign national students holding F-1 status to gain practical experience in their field of study for up to one year after graduation. However, if students choose to study a designated STEM field, they are eligible for an additional two-year extension, bringing the total post-graduation work authorization to three years.

The new fields of study added to the list include 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, and Demography and Population Studies. By adding these fields to the OPT program, the United States can ensure that U.S. employers can benefit from students earning degrees in competitive STEM fields. According to the Pew Research Center, the STEM workforce in 2019 comprised of 36 million people (23% of the total U.S. workforce) in a broad range of occupations. STEM jobs have consistently grown faster than non-STEM jobs since 2010, and this trend is projected to continue in the future. Descriptions for each new STEM field are as follows:

  • Landscape Architecture: a program that prepares individuals for the independent professional practice of landscape architecture and research in various aspects of the field. The program includes instruction in geology and hydrology, soils, groundcovers, and horticultural elements, project and site planning, landscape design, history, and theory, environmental design, applicable law and regulations, and professional responsibilities and standards.
  • Institutional Research: a program of study that prepares individuals to be institutional researchers at a postsecondary educational institution. The program includes instruction in data analysis, data-driven decision-making, data mining, higher education administration and organization, research methods, and statistics.
  • Mechatronics, Robotics, and Automation Engineering Technology/Technician: a program that prepares individuals to apply basic engineering principles and technical skills in the support of engineers to the design, development, and operational evaluation of autonomous, computer-controlled, electro-mechanical systems. The program includes instruction in computer and software engineering, control engineering, electronic and electrical engineering, mechanical engineering, and robotics.
  • Composite Materials Technology/Technician: a program of study that prepares individuals to apply basic engineering principles and technical skills in support of engineers and other professionals engaged in the development, manufacture, and use of composite materials in aircraft technology, automotive technology, boats, medical prostheses, and wind turbines. The program includes instruction in computer-aided design and drafting, composite materials and processes, composite maintenance, composite manufacturing, composite repair, material science, and mold manufacturing and production.
  • Linguistics and Computer Science: a program that focuses on the relationship between computer and human language and computational techniques applied to natural language. The program includes instruction in computer programming, human languages, linguistic analysis, logic, natural language processing, semantics, machine learning, psycholinguistics, software engineering, and syntax.
  • Developmental and Adolescent Psychology: a program that focuses on the scientific study of the unique stages of psychological growth and development of individuals from adolescence to adulthood. The program includes instruction in cognitive and perceptual development, emotional development, personality development, the effects of biological maturation on behavior, theories of cognitive growth and related research methods, testing and assessment methods for different age levels, research on child and adolescent behavior therapy, and the psychology of aging.
  • Geospatial Intelligence: a program that prepares individuals to analyze security and intelligence problems using a geographic perspective by relating human actions to cultural, political, economic, social, and physical landscapes. The program includes instruction in aerial photography analysis, cartography, geographic information systems (GIS), physical geography, remote sensing, spatial programming, and quantitative methods in geographic research.
  • Demography and Population Studies: a program that focuses on the systematic study of population models and phenomena, including related problems of social structure and behavior. The program addresses instruction in population growth, spatial distribution, mortality and fertility factors, migration, dynamic population modeling, population estimation and projection, mathematical and statistical analysis of population data, population policy studies, and applications to problems in economics and government planning.

Studying STEM fields has become increasingly popular in recent years, as more and more students recognize the value of these fields in the job market. Indeed, more international students come to the United States than to any other country (18% of international students worldwide). According to the National Science Foundation, in 2019 foreign-born workers made up for 19% of the STEM workforce, increasing from 17% in 2010. Furthermore, foreign-born workers with a bachelor’s degree or higher accounted for a significant portion of workers in science and engineering (S&E) occupations. Specifically, they accounted for 21% of workers in S&E occupations at the bachelor’s degree level, 38% at the master’s degree level, and 45% at the doctorate level. This is particularly true for computer and mathematical scientists, where foreign-born workers accounted for the highest shares at all degree levels. The demand for skilled workers in these fields far exceeds the supply, and many companies struggle to find qualified candidates. Adding these fields to the OPT program may help ensure that foreign national students who earn degrees in these fields can contribute to the U.S. economy by working in high-demand fields.

Adding STEM fields to the OPT program provides economic benefits. The National Foundation for American Policy reports foreign students who earn degrees in STEM fields contribute billions of dollars to the U.S. economy each year. These students often go on to work for U.S. companies and contribute to innovation and economic growth.

In addition, the extension of the OPT program could also benefit U.S. colleges and universities by attracting more international students to their programs. By adding STEM fields to the OPT program, U.S. colleges and universities may be able to attract more international students to their STEM programs, which might help to offset declining enrollments in other fields.

Reps. Maria Elvira Salazar (R-Fla.) and Veronica Escobar (D-Tex.) introduced a bipartisan immigration bill in the House of Representatives May 23. The bill, called the Dignity Act of 2023, would provide a path to citizenship for undocumented immigrants, update the legal immigration process, and establish “humanitarian campuses” on the U.S. border that would process asylum claims in 60 days.

The bill is one of a few bipartisan immigration proposals to be introduced in Congress since the Comprehensive Immigration Reform efforts of 2013. It is also the first bill to include a path to citizenship for adult undocumented immigrants and changes legal immigration pathways that have prevented many from acquiring visas.

This immigration bill, like other immigration legislation, will face challenges to passage. House Republican leaders have said that they will not consider any immigration legislation until a border security plan has passed both chambers.

Some of the Dignity Act’s key provisions aim to:

  • End illegal immigration: The bill would provide $25 billion to secure the border, expedite asylum processing, and implement mandatory E-Verify. This provision seeks to reduce the number of undocumented immigrants in the United States, thus reducing the strain on social services and increasing tax revenue.
  • Give dignity to undocumented immigrants: The bill would create a seven-year temporary legal status for undocumented immigrants who pass a background check and pay a fine. This would allow undocumented immigrants to work legally, travel freely, and access government services.
  • Protect American workers: The bill would create a fund to train and upskill American workers and would require immigrants to train or retrain at least one American worker, aiming to ensure that American workers have the skills they need to compete in the global economy.
  • Grow the economy: The bill would increase high-skilled visa opportunities, improve ports of entry, and support American agriculture, seeking to attract talented immigrants to the United States, boost trade, and create jobs.
  • Address legal immigration: The bill would change the legal immigration system, aiming to make it easier for businesses to hire the workers they need. It would add additional immigrant visa numbers and change the world-wide quota system, add a returning worker exception to increase H-2B numbers, and make changes to high-skilled immigration.

Reactions to the Dignity Act

The Dignity Act has received mixed reactions. Some immigration advocates have praised the bill as a major step forward, while others have criticized it for not going far enough. Immigration advocates who support the bill say that it is a comprehensive and fair proposal that would finally provide a path to citizenship for millions of undocumented immigrants. They also say that the bill would improve the legal immigration process and make it more efficient and fairer. Immigration advocates who criticize the bill say it is insufficient, noting it does not include enough protections for asylum-seekers and it does not do enough to address the root causes of migration.

Legislative Updates

  • Bicameral Bills Introduced: The Citizenship for Essential Workers Act has been introduced in both the House and Senate by lawmakers including Sen. Alex Padilla and Rep. Joaquin Castro. The bill aims to create a pathway to citizenship for over five million essential workers and their families who helped keep Americans safe, fed, and healthy during the COVID-19 pandemic.
  • Florida Immigration Bill – Florida passed a sweeping new immigration bill that, among other things, mandates the use of E-Verify beginning July 1, 2023 for all private employers of more than 25 employees. See GT Alert.
  • Afghan Humanitarian Parole – The Biden administration will permit tens of thousands of Afghans brought to the United States after the Taliban takeover to renew their work permits and humanitarian parole for two more years.

USCIS Publishes FAQs on Parole Programs for Cubans, Haitians, Venezuelans, and Nicaraguans

  • The FAQs clarify that supporters must hold lawful status in the United States; therefore, individuals with pending TPS or asylum applications are not eligible to be supporters.
  • Businesses and organizations may serve as supporters.
  • Cubans, Haitians, Venezuelans, and Nicaraguans who are permanent residents or dual nationals of any other country or hold refugee status in any other country are not eligible to be sponsored via this process.

COVID-19 Vaccine Requirement for International Travelers to U.S. Ending May 11

  • The White House announcement explained that the vaccination requirement is ending the same day that the COVID-19 public emergency ends. Beginning May 12, 2023, international travelers to the U.S. no longer need to provide proof that they are fully vaccinated against COVID-19. See GT Alert.
  • Similarly, the Department of Homeland Security said that beginning May 12, 2023, it will no longer require non-U.S. travelers entering the United States via land ports of entry and ferry terminals to be fully vaccinated against COVID-19.

USCIS Plans to Improve H-1B Electronic Registration Process with Upcoming ‘H-1B Modernization Rule’

  • In announcing the registration numbers for the fiscal year 2024 process, USCIS said it was investigating fraud in the FY 2023 and 2024 H-1B electronic registration processes.
  • USCIS reported 780,884 total registrations this year, which is a significant increase from last year’s 483,927 total registrations. This year, 110,791 registrations were selected. See blog post.
  • The agency confirmed its commitment to the H-1B program, citing its value to the immigration system and economy, and said it was “working on an upcoming H-1B modernization rule that will propose, among other improvements, bolstering the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system.”

On Nov. 2, former U.S. Ambassador to Portugal and Greenberg Traurig Senior Counsel Robert Sherman hosted Francisco Duarte Lopes, the current Portuguese Ambassador to the United States, at the firm’s Boston office. The meeting was attended by Kate Kalmykov, Co-Chair of the Immigration & Compliance Practice, members of the GT Boston office, and business leaders working in various sectors of the Portuguese economy including biotech, life sciences, technology, tourism, and education.

GT Immigration & Compliance attorneys represent investors from the United States and other countries seeking to participate in Portugal’s Golden Visa program, giving applicants the opportunity to obtain Portuguese permanent residency and, eventually, an EU passport. GT attorneys also provide tax counseling, estate planning, and strategic consultative advice, and they represent both individual and corporate clients interested in investing and developing business opportunities in Portugal.

Robert Sherman, Francisco Duarte Lopes, and Kate Kalmykov.
Robert Sherman, Francisco Duarte Lopes, and Kate Kalmykov.

On Jan. 21, 2022, U.S. Citizenship and Immigration Services (USCIS) updated the USCIS Policy Manual with additional guidance on how USCIS evaluates eligibility for the O-1A “extraordinary ability” visa category. O-1A visas are reserved for individuals with an extraordinary ability in the sciences, education, business, or athletics.

According to a recent White House press release, the O-1A policy update is a part of the Biden administration’s broader effort to “remove barriers to legal immigration” and “advance predictability and clarity for pathways for international STEM scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America.” To this end, the USCIS’ latest O-1A policy update clarifies how the agency evaluates evidence submitted in support of an O-1A petition. Specifically, USCIS provides examples of evidence that may satisfy the O-1A evidentiary criteria, with a focus on O-1 petitions for individuals showcasing extraordinary ability within STEM fields.

Along with providing examples of evidence that may satisfy the O-1A criteria, USCIS’ policy update includes a discussion of considerations relevant to evaluating such evidence, with a focus on the highly technical nature of STEM fields and the complexity of the evidence often submitted. For example, the new guidance includes a discussion on considerations that can help determine whether a Ph.D. scholarship amounts to a nationally or internationally recognized award for excellence within the field of endeavor.

The update also emphasizes USCIS’ pre-existing policy of allowing petitioners to submit evidence that is of comparable significance in situations where a particular O-1A criterion does not readily apply to a specific occupation. To provide further clarification, USCIS’ update includes examples of comparable evidence that may be submitted in support of petitions for beneficiaries working in STEM fields.

Though this policy update is intended to “advance predictability and clarity” in the adjudication of STEM-related O-1A petitions, much will depend on how USCIS’ adjudicating officers apply the new policy update in practice.