As we are now more than nine months into President Trump's time in office, employers are starting to feel the impact of multiple immigration-related changes that have been put into place by his administration. While some of the changes impact only those who sponsor foreign nationals for work authorization, many of the changes may be felt by all employers.
One of the most publicized changes the Trump administration has made is rescinding the Deferred Action on Childhood Arrivals (DACA) program. President Obama established DACA in 2012 to allow certain undocumented individuals who were brought to the United States as children to apply for deferred deportation and work authorization. Individuals who qualified and applied for work authorization were granted two-year "work permits," i.e., employment authorization document (EAD) cards. Approximately 800,000 individuals had applied for this benefit. President Trump announced the rescission in early September, but indicated that full implementation of the rescission would be delayed for six months to allow for Congress to take action on immigration reform. However, as of September 5th, no new initial DACA applications were accepted. Furthermore, those who were eligible to file for extensions must have filed them with U.S. Citizenship and Immigration Services (USCIS) on or before October 5th. Employers will need to be prepared to lose DACA employees as their work authorizations expire unless Congress takes action.
In the first week of April, nearly 200,000 H-1B applications were filed by U.S. employers on behalf of foreign nationals offered professional positions in the United States. The Buy American and Hire American Executive Order (EO 13788) was signed on April 18 by President Trump. In the months following, USCIS has changed its past practice in adjudicating H-1B petitions, challenging H-1B eligibility when an entrylevel wage is offered. USCIS is suggesting that entry-level positions, by definition, are not specialized enough to qualify for H-1B visas. The regulations, however, tie H-1B eligibility to the requirements for entry into the profession rather than the offered wage, and require a showing that at least a bachelor's degree is required for entry into the occupation. Many H-1B-eligible occupations require more than a bachelor's degree (e.g., lawyers and doctors). USCIS's change in practice will make it much more difficult for companies to secure H-1B approvals for recent graduates.
In addition, on October 23, USCIS issued updated policy guidance that it will now apply the same level of scrutiny to extension petitions that it does to initial petitions. Historically, USCIS would give deference to the findings of previously approved petitions as long as key elements were unchanged and there was no evidence of material error or fraud. Now, officers have been advised that this deference should not be given. Given the increased scrutiny for initial petitions, employers should anticipate heightened difficulty in receiving extension approvals as well.
Increased Processing Times of Individual Employment Authorization Applications
Even employers who do not sponsor individuals for work authorization likely have foreign nationals working pursuant to EAD cards. For example, individuals who have pending family-based permanent residency applications could have EAD cards. Similarly, spouses of foreign nationals working in the United States in certain nonimmigrant categories (e.g., L-1, E-3, etc.) also may qualify for EAD cards. While EAD card applications were historically processed in under 90 days, the government has recently been taking significantly longer to process these applications. Part of this is due to regulation changes that were implemented during President Obama's administration. While the regulations provided a benefit allowing continued work authorization for those with certain pending EAD card extension applications, it removed the 90-day requirement for government processing, which has unfortunately resulted in the government taking in excess of 90 days to process many of these EAD card applications. While this is not a serious concern for individuals whose category of EAD card qualifies them for work while the application is pending, not all individuals fall into this classification. If this automatic coverage does not apply, the individual will have to stop working upon the card's expiration until a new EAD card is issued. While this seems of greatest concern to the individual with the EAD card, employers are responsible for tracking these expirations for I-9 purposes and requiring new documentation of work authorization in order to continue employing the individual. Thus, employers will now face another complexity in completion of the I-9 as they have to determine if presenting a receipt for an EAD card extension qualifies the individual to continue working. For some individuals it will, while for others it will not. We recommend that employers maintain a "tickler" system to notify them of the upcoming expirations of all work authorizations, even those that are not employer sponsored. By reminding employees of the upcoming expirations six to seven months in advance, employers can limit the potential disruption to their workforce.
Increased Screening, Delays for Visa Applicants
In March, President Trump issued a memorandum to the secretary of state, attorney general and secretary of homeland security calling for additional vetting of visa applicants and limiting the number of daily visa interviews to allow time for the increased vetting. These measures have exacerbated wait times for visa interviews at consulates and extended the time required for consulates to return passports containing visas. Temporary work visa applicants now wait three months or longer for an appointment at some U.S. consulates in Canada, for example, and more visa applicants are being selected for administrative processing (an additional background check), which can add up to 12 weeks or more to the visa process.
Employers should be aware of these delays because they can extend the lead time needed to get new foreign national workers to the United States, delay business travel abroad because a visa needed to return cannot be secured before the trip, and result in employees being stranded abroad without a passport while they await the consulate's processing of the visa application. In addition, even employers who have not directly sponsored individuals for work authorization may be impacted as employees' spouses with work authorization could also face visa delays when traveling for renewals.
On September 24, President Trump issued a third version of a travel ban. It responds to some of the directives provided by the U.S. Supreme Court's June decision that narrowed the scope of lower courts' injunctions on the second iteration of the travel ban. The June decision held that the travel ban cannot be enforced against "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." This exemption includes a foreign national worker with an offer of employment with a U.S. company so long as the employment is formal, documented and formed in the ordinary course and not for purposes of evading the travel ban.
The third version of the travel ban is for an indefinite period of time and applies to a new group of countries with Chad, North Korea and Venezuela added and Sudan removed. The restrictions are tailored. For example, the ban for Venezuela impacts only certain government officials and their immediate family members. The new ban immediately impacts nationals of Iran, Libya, Somalia, Syria and Yemen with no bona fide relationship to a U.S. person or entity. The travel ban was supposed to take effect for all other impacted nationals of those countries, as well as nationals of Chad, North Korea and Venezuela, on October 18. On October 17, two different federal judges in U.S. District Court ordered that the government should not enforce or implement the vast majority of the travel ban those portions impacting nationals of Chad, Iran, Libya, Syria, Yemen and Somalia. The Department of State has confirmed that it will not enforce restrictions set forth in the presidential proclamation for these nationals. However, the portions of the proclamation applicable to certain nationals of North Korea and Venezuela are in place.
Inability to Travel if Advanced Parole Is Pending
Many global employers have relied upon their employees' ability to travel while Advanced Parole documents are pending (if they have another form of authorization permitting travel). Employers and employees alike many times preferred for an individual to travel on Advanced Parole once they were eligible instead of having to obtain a visa abroad. Their reasoning is that visa applications can sometimes face unforeseen delays, resulting in individuals having to remain outside of the United States for an uncertain duration of time.
However, the Trump administration has recently started to deny Advanced Parole applications when an individual travels while the application is pending. For global employers, this has a significant impact on their ability to do business. For example, if the employee applies for an extension of his/her Advanced Parole well in advance of its current expiration, but needs to travel during the several months it takes to obtain approval, that individual's future travel ability will likely be stymied by a denied extension. This will result in employers having to stop employees from traveling for several months at a time to obtain approval on the future travel authorization. Given this dilemma, employers are encouraged to look for other methods for employees to retain travel authorization, such as continuing to maintain nonimmigrant status and traveling pursuant to a nonimmigrant visa.
Work Visa Verifications
On April 3, USCIS announced plans to increase unannounced site visits to verify information in work-sponsored visa applications. USCIS stated that it would prioritize employers whose information cannot easily be verified, those who place workers at client sites and those who are "dependent" on an H-1B workforce (highly skilled professionals in specialty fields), with IT consulting firms being a prime example. Site visits include businesses where the H-1B worker is employed, even if that entity is not the direct employer of the H-1B worker. For instance, a company using IT contractors with H-1B visas should be prepared for a site visit. In this case, the host company should work closely with its IT consulting firm to ensure it has the appropriate information to respond to a site visit or documentation request.
Site visits also apply to the L-1 visa program used by global organizations to transfer managers, executives and specialized knowledge employees to the United States. While historically these site visits were focused on smaller multinational entities, more recently it appears that the USCIS is also conducting visits at larger global entities, even those who have utilized the blanket approval process which allows for more efficient and expedited processing. Similarly, these site visits are not being restricted to individuals who are newly in L-1 roles. Site visits have even been conducted following extensions and even as late in the process as when an individual has already been approved in the first phase of the green card process.
H-1B and L-1 employers should prepare for site visits by reviewing employees' petitions to ensure they are accurate and filing amendments where necessary, and by designating who is responsible for interacting with USCIS officers. Managers and staff should be informed about the examination process, and H-1B and L-1 workers and their supervisors should review petitions and prepare for the types of questions they will be asked.
In this constantly evolving political environment, the implications of immigration policy changes require heightened awareness of all employers, even those who do not sponsor employees for work authorization.