Despite the fact that the new administration has not had any legislative success in the immigration arena over the past year, U.S. Citizenship Services has issued many updated policy memos revising procedures and changing the standards for burdens of proof for nonimmigrant and immigrant petitions filed with United States Citizenship and Immigration Services (USCIS).
Abroad, U.S. consular posts have also expressed changes in procedure and policy in the nonimmigrant area as a result of memoranda issued by U.S. Secretary of State Tillerson. This impact on the business community has resulted from the fallout of the April 2017 Executive Order, “Buy American, Hire American,” which has been interpreted by U.S. governmental agencies to assure protection of the U.S. labor market and further assure that foreign hires do not jeopardize U.S. workers and their potential for employment opportunities by U.S. employers.
Among the highlighted policy changes:
Increased Worksite Enforcement
U.S. Immigration and Customs Enforcement recently announced plans to increase worksite enforcement by significantly multiplying time spent on the enforcement area, documenting undocumented employees for detention and removal, and prosecuting employers for knowingly hiring or retaining workers without valid employment authorization documents. It is expected that on-site inspections will increase in the upcoming fiscal year with ensuing higher fines. We recommend that employers prepare compliance programs, conduct internal I-9 audits and assure that any I-9 review by governmental authorities will stand up to expected scrutiny.
Increased Challenges in the H-1B Visa Petition Area
On March 31, 2017, on the eve of the most recent H-1B Cap filing period, Attorney General Jeff Sessions rescinded a policy memo, "Rescission of the December 22, 2000 Guidance Memorandum Relating to H-1B Computer Positions.” USCIS has concluded that most computer programming positions no longer require bachelor’s degrees and therefore these qualified foreign nationals would no longer be eligible for H-1B status in the computer industry.
The "Level 1” entry-level wage designation, originating with the U.S. Department of Labor, and upon which the prevailing wage determinations for H-1B classification rely, are consistent with prior proposals by Senator Grassley and others, and would no longer qualify U.S. employers to hire and employ foreign nationals entering the U.S. workforce. For example, after graduating from a U.S. university, a foreign national majoring in the computer field might not be eligible for employment as a computer analyst, programmer or other specialized position. This visa would also not be available for entry-level applicants entering the United States from abroad to work. Further, USCIS has recently expanded these Level 1 challenges to many other professional occupations, including accountants, sales managers, architects, lawyers and others, thus chilling the H-1B category for those employers wishing to hire and train entry-level talent.
Personal Interviews Related to Adjustment of Status Applications
USCIS announced that commencing October 1, 2017, it would require personal interviews for employment-based adjustment of status applicants. Individuals who have maintained their nonimmigrant legal status in the United States will now be scheduled for in-person interviews at local USCIS District Offices. Each family member will be scheduled to appear for interview to confirm the bona fides of the underlying immigrant petition of the principal applicant, and further confirm maintenance of status issues and the bona fides of the job opportunity. USCIS announced that it expects that there will be delays in processing and completing the adjustment of status process for individuals applying for such benefits.
USCIS Rescinds Its Policy of Giving Deference to its Prior Adjudications
USCIS rescinded its long-honored policy guidelines instituted in April 2004 of giving deference to previously adjudicated nonimmigrant petitions where parties, facts and circumstances of the case remained the same. Under a new October 23, 2017 policy guideline, USCIS has removed this policy and guides adjudicators and examiners to review any requests for the extension of nonimmigrant petitions as if reviewing cases anew. The immigration bar expects many more challenges (“requests for evidence”) for cases that had previously processed on a routine basis, thus jeopardizing those with long-pending residence cases and delayed due to quota backlogs resulting in not allowing these foreign nationals to remain work authorized in the United States until the conclusion of their residence cases.
State Department Change in Policy to Issuance of Timing of Activities in the United States
In a cable issued in August 2017, Secretary of State Tillerson wrote that visitors requesting visas before entering the United States must follow through on stated plans for at least three months. If the applicant for the visa fails to mention in an interview with a U.S. consular official that they might marry, secure a job or attend school, it will be presumed they have committed a misrepresentation of their intentions, and they could be charged with fraud. A consequence to this determination by a consular official would be the foreign national’s failure to secure a new visa or change status in the United States. In addition, the Secretary of State issued guidance to consular officials to further query applicants with pre-approved USCIS visa petitions and provide assurances that U.S. workers are not displacing U.S. nationals when issuing the nonimmigrant visas.
For the U.S. business community, which has long relied on global talent for its continued success and expansion of operations in the United States, the hiring of a foreign national has become more challenging and restrictive. Therefore, consultations with professionals in the field are warranted. We continue to monitor administrative changes and report on updates.