In the first year of the Trump Administration, immigration policies targeting undocumented immigrants, refugees and nationals of certain predominantly Muslim countries made the headlines.
Nonetheless, new policies also impacted employment-based immigration. USCIS announced that in-person interviews will be required for all employment-based Adjustment of Status applicants and USCIS issued an unprecedented number of requests for evidence (RFEs), even for what used to be straightforward H-1B cases.
In 2018, employers should expect further scrutiny of USCIS petitions, broader enforcement (e.g., USCIS onsite visits), and rescission of some Obama administration regulations. The changes that are likely to impact the employment-based immigration community include:
- Redefining “specialty occupation” to steer H-1B approvals toward higher-paid and higher-skilled foreign nationals.
- Compelling employers to meet prevailing wage for higher salaried occupations (e.g., meet prevailing wage for software engineers as opposed to programmers).
- Redefining “employment” and “employer-employee relationship” to make it more challenging for staffing companies to employ H-1B employees.
- Removing H-4 dependent spouses from the class of foreign nationals eligible for EAD (Employment Authorization Document).
- Disallowing or scaling back H-1B extensions beyond the 6-year limit based on priority date retrogression (per country limit backlog).
- Scaling back the 2016 regulation that allows international students with STEM degrees to extend Optional Practical Training by 2 years.
- Rescission of the International Entrepreneur Rule (IER). See our earlier IER article.
- More “administrative processing” to conduct background checks on visa (stamp) applicants (including non-Muslim applicants who have not visited an ISIS controlled territory). Administrative processing currently take 4 to 6 weeks.
Regarding #1 & 2, ILG began noticing changes in adjudication standards based on these issues in the middle of 2017 and have adjusted how we prepare cases and how we advise clients.
Precautions to Take:
- #4 would be disruptive for H-4 employees and their employers. The likelihood of rescinding the H-4 EAD program appears high and employers should prepare for the possibility of having to terminate H-4 employees or petitioning for H-1B change of status for eligible employees.
- #5 is likely to be highly disruptive given many H-1B holders have waited for green cards in H-1B status for over a decade, have U.S. citizen children, own a home, etc. Precautions may include speeding up the green card process by applying in a non-backlogged category such as EB-5 (for India-born applicants), or EB-1 for those with exceptional qualifications.
- #8 is a factor to consider before international travel. In light of the possibility of a 4 to 6 week visa processing delay, those who must apply for a visa should make arrangement to work from abroad and for friends/family to look after their personal affairs.
To be Determined:
There isn’t enough information regarding #3 at this time. USCIS has closely scrutinized staffing and IT services companies’ cases since its 2010 memo “Determining Employer-Employee Relationship for … Third-Party Site Placements.” It remains to be seen how the administration will further challenge IT services companies.
Similarly, concrete information is not yet available regarding #5 & 6. As new changes are proposed, Immigration Law Group will continue providing awareness and guide our clients through this evolving landscape.