In the last 1½ years, we have heard the never-ending negative rhetoric from the Trump administration with regards to the U.S. immigration system. Most immigration lawyers didn’t think that the rhetoric had a chance of becoming a reality. Revamping the legal immigration system and framework would require the support of both the House and Senate which was unlikely to happen. However, since the implementation of Trump’s Buy American, Hire American (BAHA) executive order in April 2017, DHS has been quietly implementing significant change – all without a major overhaul of the immigration system. Spurred by BAHA, DHS has instead achieved changes through adjustments to existing policies and guidance and tougher adjudications instead of through formal regulations. As we recover from 2017, many are wondering what 2018 will bring and how to deal with these changes and effectively hire and retain foreign talent amidst the uncertainty. Here is a summary of some of the changes impacting employment-based immigration.
- Additional Scrutiny of H-1B Visas
- H-1B and L-1 Worksite Enforcement Site-Visits Will Increase in 2018
- I-9 Audits Likely to Increase in 2018
- Increased Delays in Visa Issuance at US Embassies and Consulates
- Other Noteworthy Issues..
The assault on legal immigration in 2017 started with increased scrutiny of the H-1B program. Requests for Evidence (RFE) on H-1B applications increased by 45%, with USCIS issuing 85,265 RFEs between January and August of 2017. The main focus of these H-1B RFEs were on these issues.
- Entry-level positions: Many of these H-1B RFEs targeted employers filing petitions for positions which paid entry-level (Level 1) salaries. By taking such a blanket, narrow interpretation, USCIS essentially took the position that a “specialty occupation professional” at the beginning of their career, did not qualify for an H-1B because the entry-level position involved “menial” duties that would not normally require a bachelor’s degree to perform the job. Based on this flawed line of reasoning, an entry-level lawyer or a dentist or engineer or doctor could not be considered a specialty occupation position because of the entry-level nature of the position. The Loke Walsh Immigration Law team has successfully challenged USCIS’ erroneous interpretation of the law, securing approvals on these types of cases.
- Job is too complex for a Level 1 entry-level salary: on the flip side, another target of these RFEs were for positions that USCIS thought were too sophisticated and complex for an entry-level wage. For example, some of these RFEs indicated that an entry-level Investment Analyst graduating with a Bachelor’s degree and no experience, should not be paid an entry-level Level 1 salary because the job duties seemed too “complex” for an entry-level position. The Loke Walsh Immigration Law team has successfully argued that there is no legal basis for USCIS’s mistaken assumption, securing approvals on these cases.
- Computer occupations scrutinized by USCIS: USCIS also targeted many computer occupations, relying on a government publication called the Occupational Outlook Handbook (OOH), which outlines the minimum requirements for a specialty occupation. The problem with the OOH is that many of the “new” jobs of the 21st century, such as Data or Business Intelligence or SEO Analysts are not listed in the OOH. If a job is not listed in the OOH, USCIS takes the narrow-minded approach that since the position does not appear in the OOH, it cannot be an H-1B specialty occupation as a bachelor’s degree is not normally the minimum requirement for entry into the position. The Loke Walsh Immigration Law team has also successfully challenged USCIS’ position on this issue, securing approvals for our clients.
USCIS also takes a very narrow interpretation of certain occupations, refusing to deviate from the language used in the OOH. For example, OOH states that “software developers usually have a bachelor’s degree, typically in computer science, software engineering or a related field.” USCIS insists that since a range of education (not just one degree major) is acceptable, a bachelor’s degree in a specific specialty is not required and therefore the position cannot be an H-1B specialty occupation as a bachelor’s degree is not normally the minimum requirement for entry into the position. Another common misconception in these RFEs is if the OOH uses the term “usually” instead of “all,” USCIS takes the position that the H-1B job does not normally require a degree and is therefore not a specialty occupation for H-1B purposes. This unreasonable interpretation has also caused much grievance for employers, but the Loke Walsh Immigration Law team has successfully challenged USCIS on this issue.
- H-1B Applicant’s Degree is in a Different Field: USCIS also targeted H-1Bs where the person’s educational background was not clearly related to the occupation. For example, if a software engineer has a degree in electrical engineering, USCIS takes the position that the degree is not relevant for the job. Our firm has successfully challenged these RFEs and secured approvals for our clients.
- Computer Programmers are no longer presumed to be a specialty occupation for H-1B purposes: Given that USCIS issued over 13,000 visas to Programmers in the previous year, this view is likely to create hardship for many employers.
While USCIS may have completely missed the boat on these issues, many of these H-1B applications were ultimately approved. However, now that the dust has settled, the end goal is clear. The additional scrutiny on the H-1B program will likely discourage employers from applying for H-1Bs. In addition to the unpredictability of the lottery selection process, the additional burden of responding to ridiculous RFEs as well as the unpredictability in decisions will likely have a chilling effect on employers that in the past, have been willing to sponsor H-1B applicants, particularly entry-level new graduates.
- Employers cannot provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a work place unless the agent provides a judicial warrant
- Employers cannot provide voluntary consent to an immigration enforcement agent to access, review or obtain the employee’s records without a subpoena or judicial warrant. But, this provision does not apply to I-9s and other supporting documents for which a Notice of Inspection (NOI) has been provided to the employer. Also, the law does not restrict or limit an employer’s compliance with an E-Verify MOU.
- Employers must provide a notice to each current employee (and any union representatives if any) of any Form I-9 inspections within 72 hours of receiving a NOI
- Employers must provide “affected employees” and their union representatives (if any) with a copy of the written immigration agency notice that details the inspection results along with any employer obligations imposed by the immigration agency within 72 hours of its receipt of such a notice.
USCIS conducts unannounced work-site visits for employers that sponsor H-1B and L-1 visa applications. In 2017, the number of site visits increased and will continue to be a focus in 2018. These unannounced work-site visits are conducted by the Fraud Detection and National Security (FDNS) officers, who will typically meet with the H-1B or L-1 foreign national as well as with an HR manager or supervisor. The purpose of the visit is to verify the accuracy of all the information submitted in the H or L petition, including job duties, the salary being paid and the work site location. Here are our FDNS site visit tips, which includes some of the frequently asked questions and issues that come up during a site visit.
As a reminder, it is more critical than ever to ensure full compliance with all of the H-1B and L-1 provisions. Therefore, if an H-1B’s job duties change significantly or if the company moves offices or the H-1B’s work site changes, this may require the filing of an H-1B amendment with USCIS.
Our Employer Compliance Section enumerates the obligations and liabilities of an H-1B employer.
Immigration and Customs Enforcement Acting Director, Thomas Homan has promised a fourfold increase in work-site enforcement actions, to include actions against both employers and undocumented workers. The agency has focused on developing and implementing its comprehensive worksite enforcement strategy that focuses on imposing fines on employers that violate employment laws and on detaining workers who work in the United States without employment authorization. In January 2018, ICE launched several high-profile raids against 7-Eleven stores (inspecting nearly 100 locations across 17 states) and issued record fines against employers for I-9 and discrimination violations ($95 million fine for Asplundh Tree Experts). Proper I-9 completion and maintenance of I-9 and E-Verify records will be critical for all employers in 2018. You may checkout our Top I-9 Practice Pointers for tips on I-9 compliance.
California Employers Caught In Between State and Federal Rules
I-9 compliance is complicated enough as it is, but conflicts between state and federal laws are likely to cause confusion for Californian employers, creating a dilemma for employers who are uncertain of the lines between state and federal rules, and putting Californian employers in direct opposition with the Trump Administration’s directives. The new Immigrant Worker Protection Act (AB 450) went into effect on January 1, 2018 in California and imposes several new obligations and requirements relating to I-9 worksite enforcement actions. Penalties can range from between $2,000 and $10,000 for repeat offenses. Briefly, AB 450 does some of the following:
Many visa applicants experienced delays in the issuance of their visas at U.S. embassies in their home countries in 2017. In many situations, an additional delay of 1 or 2 days is not too noticeable, but, for applicants in certain industries (think STEM), applying in certain countries (e.g. India, China, Russia), we have seen an uptick in “administrative processing”. While most applicants undergoing administrative processing receive their passports within 7-10 days, some cases can drag out over several weeks to several months. Some visa applicants may therefore want to carefully consider the necessity of international travel due to the uncertainty in timing. A short trip home may turn into several months, creating unexpected hardships on both employers and employees.
Applicants from Middle Eastern countries also experienced “extreme vetting” with U.S. embassies and consulates requiring much more detailed information about travel, employment and residential history for the past 15 years, phone numbers for the last 5 years, email addresses and social media handles for the last 5 years.
Additional Delays for Applicants with DUIs and Arrests
Another new development in 2017 was the treatment of any visa holder arrested for a DUI. Within 2-3 days, the U.S. embassy or consulate that issued the person’s nonimmigrant visa (e.g. H-1B, F-1, L-1, O-1, etc.) notifies the person that the visa has been revoked. The person may remain in the U.S.in valid status (based on a valid I-94 Admission/Departure Record), but if s/he travels internationally, s/he must apply for a new nonimmigrant visa at the U.S. embassy or consulate in his or her home country. As part of the interview process, the applicant must secure medical clearance (determining that s/he is not a “habitual drunkard”) from the embassy’s designated doctor. This process can take several weeks.
It also appears that USCIS may be denying change-of-status applications from anyone with a recent DUI, essentially “forcing” the applicant to return to their home country to go through an interview and medical clearance procedure.
Other arrests which are considered misdemeanors, such as trespassing (common in California where people accidentally wander onto private beaches or try to get too close to the Hollywood sign!) or shoplifting charges (e.g. college dares gone wrong), can lead to additional delays when applying for visas, but the visas are usually issued.
Mandatory Green Card Interviews for All Employment-Based Applicants
Since October 1, 2017, USCIS requires all employment-based immigration applicants to appear at an interview. This is a significant departure from practice over the last 25 years, where the majority of cases were approved without an interview (about 5% of cases were interviewed in the past). There are concerns about how local USCIS offices will handle the additional interviews given limited space and resources. As such, processing times for green card applications for both employment-based as well as family-based cases are likely to increase.
Changes in International Travel While a Green Card Application is Pending
For the last two decades, H-1B and L-1 applicants with pending green cards have always been allowed to travel with valid H/L visas during the process. As part of the I-485 adjustment of status (AOS) application, it is customary to apply for a combo card (combined work permit and travel document). In fall of 2017, USCIS started to issue split decisions on combo cards (denying the travel portion, but approving the employment authorization) where an H or L visa holder travelled with his or her H/L visa, before the combo card was issued. As a practical matter, the denial of the travel portion of the combo card may not be significant as the foreign national can still travel as long as they have a valid H or L visa. But, there are situations where it is beneficial to have a combo card – for example, someone on an L or H visa may not have any H or L time left having reached the maximum allowable period of time on the visa. Or, it may be difficult and/or time consuming to apply for an H or L visa at a U.S. embassy abroad.
Based on these changes, H and L visa applicants filing for AOS will need to decide if they will continue to travel on their H/L visas and only apply for the employment authorization document (no combo card) or stay put with no international travel until the combo card is issued.
Continued Scrutiny of L-1 Visa Applications
While USCIS has scrutinized L-1 visa applications in the past few years, it seems that it raised the level of scrutiny up another notch. In particular, businesses looking to establish a presence in the United States are finding it difficult to obtain start-up L-1s. In many instances, USCIS has taken the position that a start- up does not have the organizational structure/complexity to support an executive or manager. A reasonable person may wonder how a business is supposed to “start-up” the business without an executive or manager on the ground initially. LWIL has successfully obtained approvals for start-up L-1s, but the unpredictability in USCIS decisions is likely to discourage foreign investment into the United States.
Grace Periods After a Lay-Off or Termination
Since January 17, 2017, nonimmigrant workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, P-1 and TN classifications have a grace period of up to 60 days (or until the validity period ends, whichever is shorter) if they are laid off or terminated. In most situations, this gives a foreign national some time to settle their affairs or find another employer to transfer their existing visa. Laid-off or terminated H-1B workers may use H-1B portability (which allows an H-1B to start working upon the filing of the H-1B with USCIS) to return back to work during this 60-day grace period. It should be noted that a foreign national who resigns from a job does not have this 60-day grace period.
No Deference to Prior Approvals When Extension is Filed
In fall of 2017, USCIS revoked a long-standing memorandum that gave deference to previously approved petitions, meaning that if an applicant files for an extension, USCIS will no longer take into account the prior approval and will adjudicate the case as a new case.
The H-1B Program – is it Over?
Opponents of the H-1B program have introduced bills to either restrict or get rid of the H-1B visa for years. Keep in mind that any major overhaul of the H-1B program requires Congressional approval (i.e. both the Senate and the House have to vote to approve) which is still challenging. However, we will likely continue to see implementation of change through adjustments to existing policies or guidance – change that will fly below the radar without needing to go through a formal rulemaking process or period for public comment. This means that USCIS will continue to scrutinize H-1B applications and FDNS will ramp up its unannounced work-site visits.
It is worth mentioning that a December 2017 article by the McClatchy DC news service, reported that USCIS was considering new regulations that would limit the ability of H-1B workers who are in the middle of a green card process to obtain an extension of their H-1B status beyond the usual six-year limit of stay. On January 9, 2018, USCIS indicated that it is not considering such a change. However, USCIS did indicate that it is considering a number of policy and regulatory changes to carry out the President’s “Buy American, Hire American” executive order, including conducting a “thorough review’ of employment-based visa programs.
H-4 EADs Likely to be Phased Out
Only about 100,000 H-4s have been issued EADs since 2015. Yet, the H-4 EAD is the source of pending litigation. Several motions were filed in December 2017, with DHS asking the court to hold the current litigation since the Trump Administration has made it clear that they intend to rescind the rule. We expect DHS to make the announcement in February 2018.
STEM OPT to be Scrutinized
The Trump Administration has indicated that it is looking at scaling back STEM OPT for international students. ICE notes that it plans to revamp the program to “improve protections of U.S. workers who may be negatively impacted by the employment of nonimmigrant students on F and M visas.” The team at Loke Walsh Immigration Law will continue to keep you updated if there are any developments in this area.
Are NAFTA-TN Visas Under Threat?
Currently in the midst of re-negotiations, it is too early to predict what will happen to the TN visa classification. In Fall 2017, Senator Chuck Grassley, who consistently targets the H-1B visa, voiced similar anti-immigrant concerns about Mexicans and Canadians using TN visas to take jobs away from American workers. On December 17, 2017, USCIS delivered a nasty “holiday” surprise by issuing a memo restricting the use of the “Economist” category, specifically disqualifying Financial Analysts, Marketing Analysts and Market Research Analysts from eligibility for TN classification.
DACA and TPS Ended
In September 2017, DHS announced the termination of the Deferred Action for Childhood Arrivals (DACA) program impacting approximately 800,000 DREAMERS around the United States. DHS also announced the termination of Temporary Protected Status (TPS) for certain countries including El Salvador, Nicaragua, Haiti and Sudan. Employers of hundreds of thousands of DREAMERS and TPS holders will likely have to terminate their employment when their EADs expire.
Entrepreneur Parole Will be Eliminated
While a federal court ordered USCIS to accept applications for the entrepreneur parole in December 2017, the Trump Administration has indicated that it will eliminate the program. It is baffling as to why the administration would cut a program that will generate investments and create jobs for US workers. This after all, seems to be in the spirt of the Buy American, Hire American policy.
2017 was a challenging and exhausting year on the immigration front. The trend towards additional scrutiny and a tightening up on all fronts is likely to continue well into 2018.