In 2023, U.S. immigration experienced notable policy changes and shifts in adjudicatory patterns, as USCIS focused on increasing efficiency and providing relief where possible to combat substantial backlogs in our immigration system. Almost all areas of immigration were impacted by these changes – there were new policies, court rulings, and proposed rules in both employment-based and family-based immigration, as well as areas of humanitarian concern. As we consider the immigration outlook for 2024, it’s worth reflecting on how the immigration landscape evolved over the last year, with an eye on the future and what we can expect in the coming year.

Reflection: 2023 in Review

H-1B Processing

In March 2023, USCIS received a record-breaking 781,000 registrations for the 85,000 H-1B visas available (65,000 bachelor’s cap, with an additional 20,000 set aside for those who hold a U.S. master’s degree or higher). 408,000 of those registrations belonged to 96,000 individuals, which raised a red flag for USCIS that the current registration system allows for abuse. In the aftermath, USCIS issued a stark warning that it would pursue criminal prosecution for those who fraudulently schemed to gain an unfair advantage by submitting multiple registration on behalf of the same individual. USCIS targeted companies, whether legally related or not, who had significant overlap between their registrations for the same individuals. Understandably, this created a lot of fear, and many people were hesitant to file H-1B petitions if they had registered through more than one company, even where the opportunities were completely independent and distinct.

Nonetheless, at ILBGS, the outcomes of the FY 2024 H-1B cap remained largely unchanged and, in some ways, more favorable. Despite USCIS’ warnings, most petitions were unaffected and adjudicated to a favorable decision. USCIS targeted only those participating in a clearly fraudulent scheme, not individuals who legitimately had more than one job offer, which is fully allowed for under the Final Rule.

Looking at a representative sample size of 150 cases filed in the FY 2024 cap, 118 have been straight approved as of December 29, which comes out to 79%. This means there was no RFE or further inquiry from USCIS and the case was approved directly. 100 of the cases were filed in the first round, with 89 approved so far, for 89%. The remaining 50 were filed in the second round, which only recently closed, with 29 straight approved so far. An additional 8 cases were approved after RFE, meaning 84% of the FY 2024 cap cases have been approved to date. The rest remain pending with USCIS.

In 2022, ILBSG experienced a 71%  straight approval ratings, meaning that that 2023 has been even more favorable that past years, despite USCIS’ warnings, with straight approval ratings between 79-89% in the first and second rounds. While overall selection rates were lower due to the high number of registrations received by USCIS, the cases selected and ultimately filed with USCIS received overwhelming positive results.

Concurrent Adjudication for Dependents & Elimination of Biometrics

Following a settlement in Edakunni v. Mayorkas, USCIS resumed concurrent adjudication for H-4 and L-2 dependents, allowing these applications to be “bundled” with the principal applicant’s case and decided at the same time.  Now if H-4 and H-4 EAD applications are filed concurrently with an H-1B petition, all three will be approved at the same time, whether filed in regular processing or premium processing. This provided much needed relief for dependent visa holders, particularly since H-4 EAD processing times have been historically very long. Since premium processing is not yet available for H-4 EADs, allowing these applications to be submitted with the H-1B principal’s petition and adjudicated at the same time was a major victory for those impacted.

To facilitate concurrent adjudication, USCIS also eliminated the $85 biometrics service fee and appointments for all Form I-539 applications, alleviating delays caused by these requirements.

PERM

In 2023, Prevailing Wage Determination (PWD) processing times were extraordinarily long, creating much frustration in this area. Because the PWD is the first step in the PERM process, these delays slowed down PERM processing overall and caused major frustration for those up against the clock with their H-1B six year maximum coming to an end.

In June 2023, the DOL implemented a new Form ETA 9089 through the Foreign Labor Application Gateway (FLAG) system. The changes in the ETA 9089 form and move to the FLAG system marked a significant change to PERM processing, but so far it is not clear whether this change will streamline the process and result in less delays. On average, in 2023, PWD processing times hovered around 6-8 months and PERM processing averaged 11-14 months.

Green Card Processing

Green Card processing continued to experience delays, particularly on the employment-based side. During the Covid-19 pandemic, consulate closures temporarily halted the processing of family-based cases and those unused visa numbers spilled over to the employment-based side. Now, with less spillover from the family-based side and significant backlogs in most preference categories, employment-based green card processing is heavily impacted. Particularly for those from countries with historically high levels of immigration, such as India and China, the wait times for a green card are extraordinarily long. The employment-based green card backlog reached a new record of 1.8 million cases this year, on top of the 8.3 million case backlog for the family-based side. These backlogs have understandably caused tremendous frustration and uncertainty for those affected.

EAD Extensions

In recognition of the lengthy green card processing times, USCIS announced in September 2023 that it would extend the validity of initial and renewal EADS to five years for those with pending I-485 applications. In December 2023, USCIS confirmed it would also approve Advance Parole applications for five years.

Child Status Protection Act Policy Change

In February 2023, USCIS issued updated guidance regarding when an immigrant visa number “becomes available” for the purpose of calculating the noncitizen’s age under the Child Status Protection Act. Previously, USCIS considered a child’s age “frozen” if a visa number was available under the Final Action Date Chart of the Visa Bulletin at the time the I-485 application was filed or, in the consular context, at the time an immigrant visa was sought through the Department of State. Under the revised policy, USCIS now determines visa availability using the Dates for Filing chart, when applicable. This policy update provided desperately needed relief for those at risk of aging out due to lengthy processing times and persistent visa backlogs.

F-1 Policy Change

In December 2023, USCIS updated its guidance for F and M students, consolidating various rules in an effort to provide clarity and transparency for students.  Notably, the new directive allows F-1 and M-1 students to pursue permanent residency, as long as they have foreign residence which they presently have no intention of abandoning. In other words, international students can pursue a pathway to eventual permanent residence without impacting their current nonimmigrant visa status. This announcement represented a positive shift in immigration policy for students.

What’s Ahead: Immigration Outlook for 2024

In 2024, more changes are on the horizon. We can expect continued efforts from USCIS aimed at increasing efficiency and improving processing times, additional policy changes to combat fraud, and further rulemaking looking to modernize our immigration system. Some of the most anticipated changes in the immigration outlook for 2024 are outlined below:

Pilot Program for Stateside Visa Renewals

In December 2023, the U.S. Department of State (DOS) confirmed it will process domestic visa renewals for certain H-1B visa applicants as part of a pilot program. Beginning the week of January 29, 2024, the DOS will launch the program for approximately 20,000 eligible participants, who will be able to renew their visa stamps in the U.S. without having to travel abroad or apply at a U.S. consulate overseas. The program will run from January 29, 2024 – April 1, 2024.

H-1B Modernization + Registration Changes

In October 2023, the Department of Homeland Security (DHS) published a notice of proposed rulemaking to amend various parts of the H-1B program. The public comment period closed on December 22, 2023, so DHS will now finalize the updates through one or more final rules. It is possible the new H-1B provision will be in effect before the upcoming FY 2025 H-1B season.

Under the proposed rule, the H-1B lottery selection process will change, focusing on the unique beneficiaries rather than unique registrations. This means that no matter how many companies submit registrations for a given beneficiary, the beneficiary will only be entered in the selection process once. If selected, each company that submitted a registration on that beneficiary’s behalf would be notified of the selection and eligible to file a petition. By selecting a unique beneficiary, rather than a unique registration, DHS will ensure that all registered beneficiaries have the same chance of being selected and nobody can unfairly increase their chances.

The rule also aims to extend authorized employment under cap gap. Currently, cap gap is only available until October 1 of the fiscal year for which H-1B status is being requested. Under the proposed rule, employment authorization under cap gap would be available until April 1 of the fiscal year, providing employers and employees greater flexibility while the H-1B petition is pending.

Additional changes include expanding eligibility for cap exemption, eliminating the itinerary requirement for H-1B petitions, codifying the existing policy of providing deference for extension only cases, amending the definition and criteria for specialty occupation, and clarifying the existing policy for when an H-1B amendment petition is required. We can expect the rule will be published early in 2024, ushering in a new landscape for H-1B petitioners and beneficiaries alike.

Conclusion

As we leave 2023 behind and enter 2024, we can expect more changes in immigration, an ever-evolving area of U.S. law. We are entering an election year, meaning immigration issues will again be front and center in the media and a major focus for most Americans. Hopefully, we will continue to move towards a more streamlined immigration system with fairer processes, more transparent requirements, and far less uncertainty. As the U.S. government and immigration agencies work to modernize our immigration system and combat existing backlogs, ILBSG will be here to guide you along the way. Contact us at any time if you have questions about any U.S. immigration-related issue and how to take a proactive approach to the immigration outlook for 2024.

2024 Immigration Outlook Immigration Policy