U.S. Immigration Practice 2024: Noteworthy Developments And Possible Changes Ahead

2024 has seen a plethora of developments impacting U.S. immigration. While many developments represent incremental changes to U.S. immigration practice, particularly concerning conventional business and employment-based immigration, more substantial changes to immigration law are only achievable through congressional legislation and, given the current political climate, such congressional action is unlikely. Nonetheless, here are some of the noteworthy developments in 2024 and possible changes in U.S. immigration practice worth watching for the year to come:

1. State Actions/Proposed Actions

• Workplace Enforcement: In August, the Governor of the state of New Jersey signed a law that will levy penalties of up to $10,000 for employers in the state who disclose — or threaten to disclose — a worker's immigration status to the government to conceal possible violations of state laws on wages, benefits or taxes. The first offense is $1,000, a second violation can be up to $5,000, and subsequent violations can be up to $10,000. The recovered fees would go to the state Department of Labor.

• Pay Transparency: Following a trend in recent years, additional states have implemented or enacted Pay Transparency laws in 2024. States including, but not limited to, Hawaii, Maryland, Massachusetts, and Minnesota enacted or effectuated pay transparency laws requiring certain employers to disclose additional pay information (such as pay ranges, benefits, and other compensation) on job postings and/or other forms of recruitment. Some state pay transparency laws enacting similar rules passed in 2023, like the amendment to the Illinois Equal Pay Act, are also set to go into effect in 2025. As job postings and recruitment are mandated in certain immigration cases, keeping abreast of pay transparency requirements in different locations is crucial to remain compliant with the law.

2. Executive Branch Actions/Proposed Actions

• Keeping Families Together Program: In August, the Department of Homeland Security (DHS) announced the implementation of the Biden-Harris administration's "Keeping Families Together" program, which allows certain spouses and stepchildren of U.S. citizens to apply for parole (the ability to remain in the U.S.) without leaving the U.S. and being separated from their families. If granted parole, the qualifying spouse or stepchild's parole period would be valid for 3 years from the approval date, providing them with temporary legal status and the ability to apply for employment authorization for the duration of their parole. They may also be eligible to apply for adjustment of status to become lawful permanent residents.
  • On August 23, 2024, Texas and 15 other states filed a lawsuit challenging the Keeping Families Together program, claiming that it was an unlawful action by DHS. In response, a District Court issued an order (which was recently extended) temporarily preventing US Citizenship and Immigration Services (USCIS) from approving any Keeping Families Together "parole-in-place" (PIP) applications. While the District Court's temporary stay is in effect, USCIS can continue to accept and review PIP applications, but cannot grant parole.

• Action to Assist DACA Recipients and Other Dreamers. In June, the Biden-Harris administration announced an intention to take executive action aiming to provide eligible Deferred Action for Childhood Arrivals (DACA) recipients and other Dreamers with a path to receive a work visa.

3. DOS Actions

• Streamlining D-3 Waivers for DACA Recipients and other Nonimmigrants. On July 15, 2024, in furtherance of the Biden-Harris administration's above-mentioned DACA announcement, the Foreign Affairs Manual (FAM), which guides consular officer decisions, was updated concerning the adjudication of 212(d)(3) inadmissibility waivers (i.e., the types of waivers required to be able to return to the U.S. for many DACA recipients and some others after departing the U.S. and applying for a visa from abroad). The updated guidance may benefit DACA recipients and others applying for temporary work visas because it encourages consular officers to consider, as positive factors that may weigh in favor of 212(d)(3) waiver approval, the applicant having earned a degree from a U.S. higher educational institution or obtaining credentials to engage in skilled labor in the United States where the applicant is seeking to enter the U.S. to work in a related field. The updated guidance is particularly relevant for DACA recipients, some of whom would need to depart the U.S. and apply for a visa from abroad to gain formal immigration status in the U.S.
  • Nonetheless, the updated FAM guidance has been met with limited excitement from immigration practitioners as departing the U.S. and seeking a 212(d)(3) waiver still comes with substantial uncertainty and risk (including regarding whether the waiver will be approved and when). Many individuals may choose to decide against taking the risk and remain in the U.S., potentially forgoing the prospect for an opportunity to apply for an H-1B or other work visa at a consulate abroad and the ability re-enter the U.S. in a lawful nonimmigrant status.
    
    
  • Evaluation of the risks and potential advantages of departing the U.S. and pursuing a 212(d)(3) waiver should be examined with immigration counsel with determination of what action to take being made on a case by case basis. It is advisable to weigh the substantial risk involved and analyze steps to potentially somewhat ameliorate the risks in advance of taking any action. This is in part because upon departure from the U.S., many may be subject to a bar to return to the U.S. without approval of a 212(d)(3) waiver. Further, a departure from the U.S. may result in an additional bar to the eventual receipt of a green card.
    
    
• Employment-Based Immigrant Visa Allocations: In August and September 2024, the Department of State (DOS) issued a series of announcements that it had reached the annual cap for the employment-based third (EB-3), employment-based fifth (EB-5), and certain employment-based fourth (EB-4) preference categories for the remainder of the fiscal year (ending September 30, 2024). According to the DOS, the number of EB-3 visas that may be issued in a given fiscal year, for example, is 28.6% of the worldwide employment limit, equating to approximately 40,000 out of the approximately 140,000 employment-based immigrant visas available each fiscal year. The fact that the DOS has already reached the fiscal year limitations further highlights that persistent backlogs for employment-based immigrant visas are likely to continue, particularly for individuals born in India or China, who are most acutely affected by the per-country limitations imposed by the Immigration Act of 1990, dictating that no country can receive more than 7% of the total number of employment-based and family-sponsored preference visas in a given year.

4. Department of Labor Actions/Proposed Actions

• Schedule A Occupations: On February 15, 2024, the Department of Labor (DOL) extended the public comment period on its Request for Information (RFI) on revising the Schedule A list of occupations that are exempt from the labor certification application process to allow for additional input from stakeholders. Schedule A occupations benefit from an expedited labor certification process, shaving months, possibly years, off the labor certification process that employers normally must go through to sponsor foreign national employees in certain employment-based immigrant visa categories (EB-2 & EB-3). An expanded Schedule A occupational list could help businesses more quickly meet specific skilled labor needs and ease the pathway to permanent residence for eligible noncitizens.

• Prevailing Wage Survey Data: On July 1, 2024, the DOL published new prevailing wage (PW) survey data, which dictates the minimum wage obligations that U.S. employers must abide by in sponsoring a foreign worker for certain types of nonimmigrant and immigrant visas, including H-1B, E-3, H-1B1, and PERM-based immigrant visas. While it's unclear how much prevailing wages have changed, employers should generally expect the new wage surveys to have increased across most occupations and locations as compared to last year's surveys. This assumption is supported by the fact that on July 31, 2024, the Bureau of Labor Statistics released its Employment Cost Index for June 2024, which states, "Compensation costs for private industry workers increased 3.9 percent over the year," with wages and salaries increasing "4.1 percent for the 12 months ending in June 2024."

• PERM Platform Migration: On August 1, 2024, the Office of Foreign Labor Certification (OFLC) announced that its legacy Permanent Online System (PERM) would be fully decommissioned on December 1, 2024. "As part of the Department's technology modernization initiative, the Foreign Labor Application Gateway (FLAG) System was implemented to replace the legacy Permanent Online System, to improve customer service, and modernize the administration of foreign labor certification programs." At present, PERM applications continue to experience lengthy processing times, with the OFLC's most recent average number of days to process PERM applications ticking up to 407 calendar days. It's unclear how processing times may change once the legacy system is decommissioned.

5. USCIS Actions/Trends

• H-1B Cap Lottery: USCIS has now completed two H-1B cap lottery registration selection processes, bringing the overall number of unique beneficiaries selected in the H-1B lottery to approximately 29%. Based on USCIS data, this year's selection rate was higher than last year's based on the new beneficiary-centric selection process.

• STEM-related Visa Petition Trends: The USCIS fact sheet, "STEM-Related Petitions Trends: EB-2 and O-1A Categories FY 2018 – FY 2023" showed EB-2 National Interest Waiver (NIW) petition approvals decreasing by 12%, overall EB-2 petition approvals decreasing by 7%, and STEM-related petitions decreasing by 13% in FY 2023. O-1A petition approval rates remained largely the same.

• F-1 OPT/STEM OPT Work Authorization: On August 27, 2024, USCIS issued updated Policy Guidance concerning Optional Practical Training (OPT) and STEM OPT work authorization and related eligibility requirements. Among other things, the guidance clarified that:
  • Students may count one class or three credits (or the equivalent) per academic session (or the equivalent) taken online or through distance learning toward a full course of study.
  • Students may transfer between Student and Exchange Visitor Program (SEVP) certified schools both at the same and between educational levels.
  • Students may be eligible for post-completion OPT after completing an associate's, bachelor's, master's, or doctoral degree program.
  • Students may change their education level, transfer to another SEVP certified school, or file an application or petition with USCIS to change to another nonimmigrant or immigrant status during the 60-day grace period following completion of post-graduation OPT and/or STEM OPT.
  • Students enrolled in a SEVP certified school during a study abroad program may remain active in the Student and Exchange Visitor Information System if the study abroad program lasts less than five months; otherwise, a new Form I-20, Certificate of Eligibility for Nonimmigrant Student Status is required.

6. Judicial Actions/Cases Under Review

• Chevron Deference: A significant judicial development this year was the Supreme Court's decision in Loper Bright Enterprises et al. v. Gina Riamondo, which overturned "Chevron deference" – a roughly four-decade-old precedent that required federal courts to defer to reasonable government agency interpretations of ambiguous statutes. Many laws passed by Congress are intentionally worded broadly to let agencies fill in the gaps by passing regulations implementing these laws. Moving forward after Loper, courts, not agencies, have the final say on whether the rules that agencies promulgate are "reasonable." This will likely result in more challenges to agency rulemaking authority and regulatory interpretations, such as those promulgated by USCIS and DOL.

• Agency Proceedings: This ruling comes alongside the Supreme Court's decision in SEC v. Jarkesy, which held that SEC enforcement actions seeking civil penalties trigger the right to a jury trial and must be brought in federal court (not an agency tribunal). This precedent may be applied to enforcement actions brought by federal agencies in other contexts, such as immigration, which could limit the nature and type of actions federal agencies pursue when faced with the prospect of litigating against defendants in federal court versus an in-house administrative tribunal.

• DACA Program: The DACA program also remains in limbo following a decision by a U.S. federal district court in State of Texas v. U.S. and Karla Perez which invalidated the program. The Fifth Circuit Court of Appeals is scheduled to hear an appeal of that decision by the Biden-Harris administration on October 7.

• Border Enforcement: In January, the Supreme Court ruled in DHS v. Texas that federal immigration agents could remove razor wire installed by Texas state officials along some sections of the U.S.-Mexico border to discourage unlawful migration into the U.S.

• Asylum Policy: In June, immigration advocacy groups sued the Biden-Harris administration over its executive action that largely shut down asylum processing between ports of entry. The lawsuit alleges the executive action violates Section 1158(a)(1) of the INA, which generally allows migrants to seek asylum anywhere on U.S. soil.

Overall, these cases show continued challenges to federal executive and agency rulemaking authority, including actions taken by federal agencies like the DOL, DOS, and USCIS that will continue to impact U.S. immigration law.

Looking Ahead

Considering 2024 is an election year, movement on comprehensive immigration reform legislation is not anticipated. Any notable changes to U.S. immigration practice will likely continue to be implemented or attempted through regulatory updates and executive actions. Such actions will likely continue to be tempered by judicial review. Looking into 2025, possible executive and federal agency actions that may occur are anticipated to be significantly influenced by the outcome of the upcoming November election.

As noted in our earlier article, Business Immigration Planning for 2025, if former President Trump is re-elected, U.S. immigration policies is anticipated to generally become more restrictive and will likely translate into an uptick in both immigration-related enforcement and deportation initiatives.

Meanwhile, if Vice President Harris is elected, there is reason to suspect that many existing updates to U.S. immigration policies and procedures will likely remain in place. Federal agencies under a Harris administration, such as USCIS, DOS, and DOL may also pursue further updates to immigration regulations aimed at making visa sponsorship easier and expanding avenues for specific categories of noncitizens to obtain lawful status.

In either case, actions taken by the next administration will likely also include some enhanced focus on border security and asylum reform. Executive actions taken by the next administration will also likely continue to face court challenges, as has occurred in 2024 concerning various aspects of U.S. immigration law and federal agency authority.