Changes in the U.S. government and around the world due to the effects of politics, natural disasters, the COVID-19 pandemic, shifting business needs, worker mobility, and an increasingly digital world rapidly accelerated by the pandemic, have had a major impact on immigration. These changes may be temporary in some cases and more permanent in others. A hoped-for post-pandemic transition does not realistically include things returning to the way they were before.
Below are selected highlights of key U.S. and global immigration-related developments and trends in 2022.
- U.S. Citizenship and Immigration Services (USCIS) unveiled a new mission statement in early February 2022 that includes the Biden administration’s stated priorities and Director Ur Jaddou’s “vision for an inclusive and accessible agency.” The new mission statement says, “USCIS upholds America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve.” Although the new mission statement emphasizes welcoming and respect, and a shift away from the previous administration’s emphasis on security issues, concerns remain about delays, denials, and lost files, along with ongoing border issues. Among other things, USCIS’s challenges include funding cuts, technology performance issues, equipment limitations, and some manual workflows and paper files used to complete cases, according to the Department of Homeland Security’s Office of Inspector General. Meanwhile, the Biden administration is grappling with many serious issues outside of immigration, and immigration will be a critical consideration for the midterm elections.
- In an increasingly digital post-COVID world, demand for tech jobs is soaring but the United States can’t keep up with the demand because H-1B numerical limits remain absurdly low.
- Hard-to-obtain H-1B visas are essential for high-skilled foreign nationals to work long-term, but numerical restrictions on high-skilled temporary visas block the vast majority of foreign-born applicants from working in the United States, Stuart Anderson, Executive Director of the National Foundation for American Policy and a senior contributor to Forbes, testified at a 2021 hearing in the House of Representatives. For example, he noted, employers filed 308,613 H-1B registrations for cap selection for fiscal year 2022 for only 85,000 H-1B slots (which included 65,000 cap-subject visas plus a 20,000 exemption for those with an advanced degree from a U.S. university). This means that almost three-quarters of H-1B registrations for high-skilled foreign nationals “were rejected even before an adjudicator evaluated the application,” he said.
- Mr. Anderson attributed the precipitous decline in the entry of talented individuals to the United States and increase in their immigration to Canada to the fact that “[t]he world has changed since 1990. U.S. immigration policy has not.” Increasing the annual limit for H-1B temporary visas and employment-based green cards—or exempting specific categories from those annual limits—”would solve most of the problems and create much more flexibility in the system,” he said.
- Many companies report that an “inability to secure key highly skilled talent” is the largest inhibitor to their success, Jennifer Grundy Young, CEO of the Technology Councils of North America, testified at the same hearing. “We have been allowing other countries to pick up speed slowly but steadily to the point where more than 25 countries have modified their immigration policies to attract highly skilled immigrants and startups.” Put simply, “nations, states, and regions that can attract, develop, and retain talent will thrive and those who cannot will be left behind,” she said.
- Watch for further H-1B developments, as several related measures remain on the Biden administration’s regulatory agenda, including possibly raising the minimum wages for H-1B workers and other employment-based workers.
- The long green card waiting line, especially for Indians, means that many have given up, concluding that there is no realistic chance for them in the United States, particularly while EB-5 regional centers are unavailable and the program awaits reauthorization.
- Interestingly, USCIS issued an alert noting that an “exceptionally high number” of employment-based green cards are available this fiscal year (October 2021 through September 2022). USCIS said many more visas are available in the first (priority workers) and second (workers with advanced degrees of exceptional ability) employment-based green card categories than there are adjustment of status applications pending with USCIS. USCIS provided the following advice:
If you are eligible, please consider applying in the first or second employment-based preference categories. If you have a pending adjustment of status application based in the third employment-based preference category but also have a pending or approved petition and an available visa in the second employment-based preference category, we strongly encourage you to request that USCIS “transfer the underlying basis” of your pending application to the second employment-based preference category.
- Because of labor shortages, companies are moving out of America and the demand for outbound services has soared.
- In the absence of a startup visa in the United States unlike other countries that offer such visas, the Coalition for International Entrepreneurship asked Homeland Security Secretary Alejandro Mayorkas to streamline the International Entrepreneur Parole (IEP) program. Signers of the letter sent February 1, 2022, to Secretary Mayorkas included the American Immigration Lawyers Association, Carnegie Mellon University Graduate Student Assembly, the National Immigration Forum, and others. Among their recommendations are immediately establishing premium processing for IEP applications so qualified entrepreneurs can rapidly launch their businesses in the United States and modifying USCIS guidance on the term “qualified investor” to ensure that investors with passive foreign limited partners are not unnecessarily excluded
- The Biden administration introduced measures on January 21, 2022, to attract and retain science, technology, engineering, and mathematics (STEM) students and professionals, among others. A White House statement said the new actions are intended to “advance predictability and clarity for pathways for international STEM scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America. According to the Department of State (DOS), in 2020 international students contributed more than $39 billion to the U.S. economy and supported an estimated 410,000 jobs in cities and towns across the United States. Among the changes are 22 new fields of study added to the STEM optional practical training (OPT) program. DOS announced the Early Career STEM Research Initiative, which seeks to connect BridgeUSA exchange sponsors with interested U.S.-based STEM host organizations (e.g., small and medium businesses) to increase the number of STEM-focused educational and cultural exchanges. DOS also announced an extension for undergraduate and graduate students in STEM fields on the J-1 visa to facilitate additional academic training for periods of up to 36 months. The extension applies to the 2021–22 and 2022–23 academic years.
- On February 4, 2022, the House of Representatives passed the America COMPETES Act of 2022 (H.R. 4521). The bill would exempt international science, technology, engineering, and mathematics (STEM) PhD graduates from the green card numerical cap, create a new visa category for entrepreneurs, and provide temporary protected status for Hong Kong residents. A conference committee is expected to address significant differences between the House bill and the Senate’s U.S. Innovation and Competition Act (S. 2012), according to NAFSA: Association of International Educators.
- Betsy Lawrence, chief counsel for the House of Representatives’ Judiciary Subcommittee on Immigration and Citizenship, has joined the White House’s ever-changing immigration team as deputy assistant to the President for immigration. She replaced Esther Olavarria. Before working on Capitol Hill, Ms. Lawrence was director of government relations for the American Immigration Lawyers Association.
- Canada’s efforts to make it “increasingly easy for employers to attract and retain talent” is a primary reason for the precipitous decline in the entry of talented individuals to the United States and increase in their immigration to Canada, Mr. Anderson said. Canada’s efforts include its Global Skills Strategy, under which many temporary visa applications for high-skilled foreign professionals are approved within two weeks, and the lack of a numerical limit on high-skilled temporary visas there.
- The European Union (EU) Blue Card work permit continues to be available. It allows non-EU highly skilled workers to be employed in most EU member countries (with the exception of Denmark and Ireland). It is not subject to numerical limits. An EU Blue Card gives highly qualified workers from outside the EU the right to live and work in an EU country. Such workers must have higher professional qualifications, such as a university degree, and an employment contract or a binding job offer with a high salary.
- The EU has also designated 2022 the “European Year of Youth.” Among other things, the EU notes that traineeships are a way to gain practical work experience, and there are many to choose from across Europe. There is also NextGenerationEU, which targets high-quality job, education, and training opportunities for young Europeans. A “European Youth Portal” provides more information about upcoming activities and events. Also, the EURES portal contains information on more than three million vacancies across Europe.
- Some European countries have also set up their own programs to attract talent beyond the EU Blue Card. For example, Italy has a start-up visa program aimed at entrepreneurs setting up innovative businesses with high technological value, along with two programs for highly skilled workers modeled on the intra-company transfer.
United Kingdom and India
- The United Kingdom (UK) is readying for the spring 2022 launch of its new Global Business Mobility (GBM) visa route, to include five categories: senior or specialist worker, graduate trainee, UK expansion worker, secondment worker, and service supplier. UK businesses receiving these workers must obtain a sponsor license, and the workers must meet salary and skill thresholds. Some of the subcategories (for example, the UK expansion worker) provide a new route for oversees businesses wishing to send employees to the UK. Further details and clarifications are expected from the Home Office.
- Also, according to reports, a new “Scale-Up” visa is expected to be introduced in spring 2022. It will allow into the UK those with high-skilled job offers from qualifying businesses, and a change of employers is possible. There is no requirement for a sponsor license for this category.
- There has also been discussion of a “High-Potential Individual” visa route that initially would be open to applicants who have graduated from a “top global university,” with other characteristics to be considered, although little additional information is available about this intriguing route.
- Now that the UK has left the EU, it is making its own agreements with other countries. For example, it is working with India on measures that could lead to an eventual free trade agreement as part of the “Migration and Mobility Partnership” memorandum of understanding (MOU), signed in May 2021. The MOU expresses the two governments’ “dynamic and evolving migration partnership” and their desire to expand economic cooperation in labor and employment. It reaffirms their “determination to strengthen cooperation in the field of mobility and migration, with a view to encouraging the legal and orderly movement of students and professional skilled workers to each other’s countries, subject to the opportunities available.” The two governments resolved to “facilitate temporary and circular mobility, ensuring that UK and Indian nationals may enhance their skills which they can deploy in their countries of nationality.”
- Among other things, the MOU states that “Indian nationals who successfully complete their studies and who wish to supplement their training with professional experience in the UK may apply to remain in the UK on a work-based immigration route.” Further, the MOU states that both governments will create a new “Young Professionals Scheme” to create opportunities for young professionals between the ages of 18 and 30 to take up employment in the other country for two years “without consideration being given to the employment situation” in that country.
- Under the MOU, the UK will also “facilitate the issuance of visas to skilled Indian nationals with a project of an economic, scientific, technological, cultural or humanitarian nature, likely to make a significant contribution to the development of relations between the two countries to work, in accordance with the UK Immigration Rules.” The visa will be issued for the length of the employment up to five years and can be renewed.
- Reciprocally, India will “encourage the issuance of an ’employment visa’ giving rise to the granting of a residence permit” valid for three years, renewable, to UK nationals with projects of a similar nature.
Contact your WR Immigration attorney for advice and help in specific situations.
- Letter to Alejandro Mayorkas from the Coalition for International Entrepreneurship, Feb. 1, 2022, https://progress.institute/wp-content/uploads/2022/02/CIE-Open-Letter.pdf
- “Establishing a National Strategy for International Education,” NAFSA: Association of International Educators, https://www.nafsa.org/establishing-national-strategy-international-education
- “Fact Sheet: Biden-Harris Administration Actions to Attract STEM Talent and Strengthen Our Economy and Competitiveness,” White House, Jan. 21, 2022, https://bit.ly/3uBABT4
- “Fact Sheet: Biden-Harris Administration Actions to Attract STEM Talent and Strengthen Our Economy and Competitiveness,” White House, Jan. 21, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/01/21/fact-sheet-biden-harris-administration-actions-to-attract-stem-talent-and-strengthen-our-economy-and-competitiveness/
- “DHS Expands Opportunities in U.S. for STEM Professionals” (includes a list of the 22 new fields added to STEM OPT), Jan. 21, 2022, https://www.dhs.gov/news/2022/01/21/dhs-expands-opportunities-us-stem-professionals
- “Update to the Department of Homeland Security STEM Designated Degree Program List,” 87 Fed. Reg. 3317 (Jan. 21, 2022), https://www.govinfo.gov/content/pkg/FR-2022-01-21/pdf/2022-01188.pdf
- “USCIS Provides Clarifying Guidance for O-1 Petitions With a Focus on STEM Fields,” USCIS, Jan. 21, 2022, https://www.uscis.gov/newsroom/alerts/uscis-provides-clarifying-guidance-for-o-1-petitions-with-a-focus-on-stem-fields
- “USCIS Updates Guidance on National Interest Waivers,” USCIS, Jan. 21, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-national-interest-waivers
- “New Initiatives Further Opportunity for International STEM Students, Scholars and Researchers, U.S. Entities,” Jan. 21, 2022, https://www.state.gov/new-initiatives-further-opportunity-for-international-stem-students-scholars-and-researchers-u-s-entities/
- Early Career STEM Research Initiative, https://j1visa.state.gov/programs/early-career-stem-research-initiative/
- BridgeUSA, https://j1visa.state.gov/
- “Intra-Company Transfer Report: October 2021,” Gov.uk, https://bit.ly/3uuXE2c
- Hearing testimony, https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=4600
- Testimony of Stuart Anderson, https://docs.house.gov/meetings/JU/JU01/20210624/112814/HMTG-117-JU01-Wstate-AndersonS-20210624.pdf
- Testimony of Jennifer Grundy Young, https://docs.house.gov/meetings/JU/JU01/20210624/112814/HMTG-117-JU01-Wstate-YoungJ-20210624.pdf
- “Blue Card Permit: How It Works,” Medium, https://mm-63015.medium.com/blue-card-permit-how-it-works-508def53f055
- The Italian Policy for Innovative Entrepreneurship, Italian Ministry of Economic Development, https://bit.ly/3FWkT74
- UK-India Memorandum of Understanding, https://www.gov.uk/government/publications/migration-and-mobility-partnership/mou-on-migration-and-mobility-partnership-between-india-and-the-united-kingdom
- EU Blue Card, https://ec.europa.eu/immigration/blue-card/essential-information_en
- European Job Mobility Portal, https://ec.europa.eu/eures/public/index_en
- “European Year of Youth to Boost Opportunities for Young People,” European Commission, Jan. 21, 2022, https://ec.europa.eu/eures/public/european-year-youth-boost-opportunities-young-people-2022-2022-01-21_en
- European Youth Portal, https://europa.eu/youth/home_en