In April 2017 President Trump issued the Buy American, Hire American Executive Order. The United States Citizenship and Immigration Services (USCIS) has carried out and is considering a number of policy and regulatory changes to fulfil the president's executive order, including conducting a thorough review of employment-based visa programmes. Further, there are several bills being considered in the House and Senate pertaining to immigration. The following items are immigration changes being discussed for 2018.
There is both a pending court case and a proposed rule to eliminate the 2015 rule which granted H-4 employment authorisation documents (EADs) to certain H-4 dependent spouses seeking employment-based lawful permanent resident (LPR) status.
Save Jobs USA filed a law suit which was initially dismissed in 2016. Subsequently, Save Jobs USA filed an appeal claiming that:
- the rule has no protections for US workers;
- the rule increases the pool of workers looking for jobs; and
- the US Department of Homeland Security (DHS) never had the authority to grant EADs to H-4 visa holders.
Further, the DHS is reviewing the 2015 rule which extended employment authorisation to certain H-4 dependent spouses. This follows the issuance of Buy American, Hire American Executive Order (Executive Order 13788). The rule proposes to remove H-4 employment authorisation. A rule addressing this issue may be published in February 2018.
The DHS is considering a rule that would require H-1B employers to pre-register for the H-1B cap lottery and only those employers that have won a cap number would be allowed to file an H-1B cap petition. DHS may also propose a rule to impose a priority system, which would give preference to the most highly educated or highly paid H-1B workers. Rules addressing these issues may be published in February 2018. Changes to government regulations are subject to the rulemaking process, which usually takes several months to complete and involves a notice and comment period for the public. As such, it is anticipated that any proposed rules would not complete the rule making process before April 1 2018, the start of the filing period for the 2018 H-1B cap season. However, it is unclear whether some proposed changes could be implemented before this date. Further, a preference system that requires pre-certification for the lottery would likely require legislative action. While some bills are proposing this (including one proposed by Congresswoman Zoe Lofgren), they are unlikely move in Congress.
The DHS is considering imposing a rule that would increase the oversight of students on optional practical training (OPT) and impose additional obligations on the part of the US employers that employ F-1 students during their OPT period. It is anticipated that a rule addressing this issue may be published in October 2018.
Additionally, the Trump administration is considering eliminating the regulation on sciences, technology, engineering and mathematics (STEM) OPT. The Obama administration finalised a rule extending the work period for international students in STEM fields by two years, for a total of three years of work experience. The Trump administration may rescind this additional two-year period.
The DHS is considering a rule to increase USCIS filing fees for various petitions and applications. The DHS indicated that the rule may be published in October 2018. Additionally, civil monetary fines have been adjusted for inflation for H-1B programme violations effective January 2 2018.
The DHS is in the process of promulgating a rule that would revise the definition of the term 'specialty occupation' in connection with the H-1B programme. The rule also proposes to revise the definition of the terms 'employment' and 'employer-employee relationship'. It is anticipated that a rule addressing this issue may be published in October 2018.
The USCIS has already been amending its policy on what qualifies as a specialty occupation. In March 2017, the USCIS released a policy memo on the adjudication of petitions listing a Level 1 wage. Companies are receiving numerous requests for evidence (RFEs) addressing issues, including the USCIS claiming that:
- the duties indicate that the position is beyond entry level and the labour condition attestation (LCA) does not correspond with position; and
- Level 1 is not a specialty occupation.
The USCIS announced that the number of RFEs issued between January 2017 and August 2017 had increased by 44% from the previous year. The USCIS memo also stated that the US Department of Labour (DOL) Occupational Outlook Handbook alone (which has been used to determine whether the petitioner's position and positions like it generally require a bachelor's degree or equivalent) will not be enough to prove that the position is a specialty occupation. Instead, the USCIS may look more at the proposed job duties when determining the complexity to determine whether the position is a specialty occupation. In 2018 an even greater level of inspection of job descriptions and the specialty occupation standard is expected.
FDNS site visits
Following the Buy American, Hire American Executive Order, there has been an increase in the number of USCIS site visits. The USCIS Administrative Site Visit and Verification Programme has fraud detection and national security (FDNS) officers make unannounced visits to collect information as part of a compliance review. Going forward, the USCIS is planning a more targeted approach to site visits, focusing on:
- cases where it cannot validate the employer's basic business information through commercially available data;
- H-1B dependent employers (those that have a high ratio of H-1B workers compared to US workers, as defined by statute); and
- employers petitioning for H-1B workers who work off-site at another company or organisation's location.
ICE site visits
In an October 2017 speech, Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan confirmed his plans to follow the president's orders to increase enforcement in order to prevent fraud and abuse. ICE has already increased inspections and worksite operations and going forward will:
- boost the number of inspections in the upcoming fiscal year;
- multiply time spent on enforcement by four or five times;
- target undocumented employees for detention and removal; and
- prosecute employers for knowingly hiring or retaining workers who lack valid US employment authorisation.
In June 2017 the DOL announced plans to confront entities committing visa programme fraud and abuse more aggressively. The DOL secretary instructed:
- the Wage and Hour Division to conduct additional civil investigations;
- the Employment and Training Administration (ETA) to propose changes to the LCA; and
- the ETA to coordinate the administration and enforcement of visa programmes to refer criminal fraud to the Office of the Inspector General. The DOL will continue to work with the DOJ and DHS to further investigate and detect visa programme fraud and abuse.
In addition to site visits for those workers in the United States, Customs and Border Patrol (CBP) officers are imposing greater levels of scrutiny for those individuals seeking entry into the United States. Following the Buy American, Hire American Executive Order, the Foreign Affairs Manual was updated for H, L and O visas; as such, officers should take the executive order into consideration when they review how visas are adjudicated at consulates abroad. The Foreign Affairs Manual and associated handbooks are an authoritative source for the Department of State's procedures that govern the operations of the State Department, the Foreign Service and other federal agencies.
It is crucial that employers prepare for greater scrutiny of employment sites and immigration forms by auditing their public access files and having accurate I-9 records.
The USCIS issued a memo in 2004 which directed adjudicators when adjudicating petition extensions involving the same parties and underlying facts as the initial petition to defer to the prior determination. An October 2017 memo rescinded the former USCIS policy and stated that adjudicators must review the petition and supporting evidence to determine whether the petition may be approved. The USCIS also indicated that it may still request additional evidence in extension cases. Employers should be prepared for greater scrutiny over extension petitions in 2018.
In October 2017 the USCIS started expanding in-person interviews for employment-based adjustment of status applications. Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, the USCIS is planning an incremental expansion of interviews to other benefit types. This new requirement may increase processing times for these petitions. The interview process appears to be going smoothly for employment-based applicants.
In December 2017 the Supreme Court issued orders which allowed the Presidential proclamation from September 2017 to be implemented, imposing country-specific travel restrictions on individuals from eight countries – that is, Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. Some countries have specific visas which are suspended, while for other countries all immigrant and non-immigrant entry is suspended. A case-by-case waiver is available if a foreign national can show that:
- being denied entry would cause undue hardship to him or her;
- entry would not pose a threat to US national security; and
- his or her entry "would be in the national interest".
Procedurally, cases will continue to be reviewed and scheduled for visa interviews. The officer will determine whether the applicant is affected by the proclamation and, if so, whether the case qualifies for an exception or may qualify for a waiver. No separate application for a waiver can be used.
The United States, Mexico and Canada are currently renegotiating the North American Free Trade Agreement (NAFTA). Businesses and individuals are concerned that the entire NAFTA professional visa category (TN visa) might be eliminated during NAFTA renegotiations. Movement of professionals was one of the key demands that Canada listed before NAFTA negotiations commenced in August 2017. The United States, which could terminate NAFTA, has not addressed labour mobility in the first rounds of negotiations. Canada also would like the list of NAFTA occupations to be expanded. In contrast, in November 2017 the USCIS issued a policy memo clarifying the types of duty permissible under the TN visa category for economists. It is possible that the Trump administration may look at restricting other TN categories in future.
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For further information on this topic please contact Melissa B Winkler at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (firstname.lastname@example.org). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.