What Is On the Horizon for Employment-Based Immigration?

Recent immigration news has focused on the executive order travel ban, “extreme vetting” for visas, and the specter of mass deportations. In contrast, the employment-based immigration news has involved more speculation than action. But the other shoe is soon to drop on the employment side. Here is where things stand in 2017:

January 17: The USCIS becomes no longer required to process Employment Authorization Document (EAD) applications within 90 days. It accepts EAD applications up to 180 days before expiration (rather than 120 days under the old rule) and an automatic 180-day work authorization extension applies to foreign nationals (but not their spouses) who are renewing an EAD. Spouses may find a “gap” in work authorization during which they cannot work.

January 18: A new Department of Justice (DOJ) regulation, related to cases before the Immigrants and Employees Rights Section (IER) (formerly referred to as OSC) clarifies and broadens the definition of discrimination to include “any intentional treatment differentiating employees because of national origin or citizenship, regardless of the reason for differentiation and regardless of whether such treatment is because of animus or hostility.” According to IER, this regulation merely incorporates the intent requirement contained in the amended statutes and case law but others view the language as broadening the definition. The definition of “hiring” is also expanded to include recruitment. The new regulation imposes liability for differentiating employees on the basis of national origin or citizenship even when no adverse action is involved

April 3: Until further notice, premium processing for an H-1B petition becomes no longer available, regardless of whether the petition is (1) a new petition, a transfer, an extension or amendment; (2) subject to or exempt from the H-1B quota, or (3) for a regular or master’s degree holder. Premium processing enabled an H-1B employer to receive a response on a petition within 15 calendar days after filing, in contrast to several months of waiting under regular processing. Though an individual who is moving from one company to another can move as soon as the filing receipt is in hand, many choose not to rely on this rule, understandably. Instead, they insist on having an approval of the transfer in hand before making the move. Without Premium processing, however, a lateral hire now takes several months to come on board. 

  • The Department of Homeland Security (DHS) indicates that it may eliminate or restrict the ability of H-4 spouses to obtain work permits.
  • The USCIS indicates that computer programmer jobs are no longer presumed to be eligible for the H-1B category, particularly for entry-level positions. Employers must now prove that a bachelor’s degree is a standard requirement by the company or the particular industry, or that the position is so complex, unique or specialized as to qualify as a “specialty occupation.” An entry-level wage “will likely contradict a claim” that the position is particularly complex, specialized or unique. Whether this view will be applied to other IT positions remains to be seen. The USCIS will apply this view to all H-1B petitions filed during the first week of April as part of the annual visa “lottery” system. Employers should be prepared to respond to written requests for additional evidence on computer programmers and perhaps other IT positions. This new level of scrutiny will also lengthen the overall processing time for these petitions.
  • The annual H-1B lottery opens and runs through April 7.  During those five days, approximately 199,000 H-1B petitions are received. Only 85,000 H-1Bs are available under the quota.

April 6: The Department of Labor (DOL), DHS and DOJ announce H-1B compliance initiatives and greater interagency coordination on enforcement efforts against H-1B violators. The DOL will increase audits and investigations of H-1B employers to ensure compliance and says that it is also considering changes to the Labor Condition Application process to provide “greater transparency” to U.S. workers and to the general public.  The USCIS fraud unit will focus site visits on H-1B dependent employers and employers who place H-1B workers at third-party worksites, such as IT firms. The DOJ issues a warning to H-1B employers that the displacement of a U.S. worker by a foreign national on a temporary visa may violate federal law prohibiting citizenship status discrimination.  

April 11:  The H-1B lottery system selects enough petitions to meet the 85,000 H-1B quota. All unselected petitions will be returned to the petitioning employer along with filing fees.  

April 18: The “Buy American and Hire American” executive order is signed, directing the DHS, DOL, DOJ and Department of State to propose “as soon as practicable” new employment-based immigration rules and guidance to protect the interests of U.S. workers. These agencies are also ordered to suggest reforms to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

Takeaways:The “Buy American and Hire American” executive order will likely result in (1) increased H-1B required prevailing wage minimums, (2) raised H-1B petition filing fees, and (3) replacement of the H-1B lottery with a system favoring job positions that involve higher wages or advanced degrees. These agencies will likely propose limitations to the B-1 business visitor category, the training programs for F-1 students (OPT and CPT), and the L-1 visa category. Worksite compliance visits may soon expand to include the L-1B specialized knowledge category.

Employers must have in place an immigration compliance program covering all petitions that they file, including their Public Access Files in connection with H-1B petitions and their PERM Audit File relating to green card sponsorship.  As well, all I-9 and E-Verify recordkeeping must be in order as there is likely to be an increase in Immigration and Customs Enforcement (ICE) audits. Employers should also be prepared to receive closer scrutiny on work visa petitions and to wait substantially longer for decisions on those petitions.

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Dan E. White leads the practice at The Immigration Group in Nashville. Since 1986, his law practice has focused exclusively on business immigration matters.  He is a 1981 graduate of Vanderbilt Law School and an active member of the American Immigration Lawyers Association. He may be contacted at (615) 340-5000 or dwhite@immigrationgrp.com

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