THE YEAR OF ENFORCEMENT
Thomas Homan, ICE’s Deputy Director and Senior Official stated:
"We’re going back to holding employers accountable . . . .It’s about removing a magnet."
2017 has been the year of immigration changes — mainly of policy and agencies' procedural practices. We have seen three successive travel bans, the gradual elimination of the Deferred Action for Childhood Arrivals (DACA) program, and a number of policy changes geared towards more scrutiny for employment-related petitions.
We anticipate that 2018 will be the year of enforcement, so here are the top changes we see ahead:
Changes to the H-1B Program
The H-1B program has always been under attack, especially now under the new administration. The "Buy American, Hire American" executive order specifically "suggested reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries." USCIS announced that it is working on changes geared toward “protecting the economic interests of U.S. workers and preventing fraud.” Employers already experienced the operational changes with this past year's H-1B cap petitions. Specifically, USCIS devoted greater scurity to H-1B petitions in two specific areas: (1) whether a position truly required a bachelor's degree in a specific and related field, and (2) whether a position receiving a Level 1 wage under the Department of Labor's prevailing wage guidance truly qualifies as a "specialty occupation." It is clear by this increase in scrutiny over wage levels and the specialized nature of the position that the USCIS is attempting to review these petitions under the president's proposed standard without congressional or public input.
In 2018, we should expect to see much of the same level of scrutiny and a potential overhaul of the H-1B program. Employers should be educated on the information listed in the labor condition application (LCA) that is an integral part of the H-1B petition. Employers also need to be aware of the impact of salary levels and occupational codes selected as part of the process.
Reconsideration of the H-4 Employment Authorization Document (EAD)
On December 14, 2017, the Department of Homeland Security (DHS) published an agenda item “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”, which says that they intend to amend the original rule published for H4 EAD Rule in 2015 and potentially remove it as per the Buy American and Hire American Executive Order.
Currently, H-4 non-immigrants (dependents of H-1B visa holders) are eligible to apply for EAD if their H-1B spouse (1) has an approved Form I-140 immigrant worker petition; or (2) has received a one-year extension of H-1B status beyond their sixth year based on a filed I-140 or labor certification.
The H-4 EAD rule was enacted in 2015 and a group of U.S. technology workers, named Save Jobs USA, filed a lawsuit (Save Jobs USA v. DHS). The lawsuit was dismissed last year and the plaintiffs appealed that ruling. In February, the Trump Administration asked the court to place the appeal on hold while it considered its position on the regulation. In a motion filed with the U.S. Court of Appeals for the District of Columbia Circuit on December 14, the Administration announced its plans to reconsider this program.
Details regarding the administration’s plan to remove this program are not available, so there is no information available on what will happen to current H-4 EAD holders. Nevertheless, as of today, the H-4 EAD program remains in place. We can expect an update on this in February 2018.
New Employment-Based Green Card Interviews
Based on the March 6, 2017, executive order, the USCIS reinstated the interview requirement for all employment-based green card applications effective Oct. 1, 2017. This policy requires all employment-based green card applicants to attend an interview at a local USCIS office as a condition to approve an immigrant visa. Applicants should be prepared to discuss the basis of their immigrant petition, as well as issues of admissibility.
In 2018, we expect significant increases in the employment-based green card applications processing times because the local offices conducting interviews have not received additional resources to efficiently process the hundreds (if not thousands) of new cases being assigned to them. Employers and employees should be aware of the delays in the employment-based green card applications and consider options before starting the green card process.
Foreign Physicians on J-1 Visas
President Trump’s September 2017 Proclamation (“Travel Ban”) received SCOTUS’ “blessing” on December 4, 2017.
Physicians from the eight countries listed on the latest “Presidential Proclamation,” currently in the U.S. in J-1 status for participation in a program of graduate medical education (GME) may continue to seek extensions of sponsorship through ECFMG. Eligibility for an extension or renewal of current J-1 status is not impacted.
The following are the eight Countries listed on the Presidential Proclamation and a summary of restrictions on visas commonly used by physicians:
Chad – Nationals remain eligible to apply for J-1 and H-1B visas; issuance of B1/B2 visas is suspended.
Iran – Nationals remain eligible to apply for J-1 visas; issuance of H-1B and B1/B2 visas is suspended.
Libya – Nationals remain eligible to apply for J-1 and H-1B visas; issuance of B1/B2 visas is suspended.
North Korea – Issuance of all immigrant and non-immigrant visas to nationals of North Korea is suspended.
Somalia – Nationals remain eligible to apply for J-1, H-1B visas and B1/B2 visas.
Syria – Issuance of all immigrant and non-immigrant visas to nationals of Syria is suspended.
Venezuela – Visa suspensions for Venezuelan nationals limited to certain government officials and their family members.
Yemen – Nationals remain eligible to apply for J-1 and H-1B visas; issuance of B1/B2 visas is suspended.
SPECIAL NOTE: Travel outside of the United States is not recommended for any Syrian national who currently holds J status. Eligibility for a new J visa to reenter the U.S. is highly unlikely.
Suspension of Visa Issuance may be WAIVED in Some Circumstances
The Proclamation contains a provision by which consular officials may issue visas based on a listed waiver category to nationals of the eight designated countries. In evaluating eligibility for a waiver, a consular official must determine that the visa issuance is in the national interest, that the applicant poses no national security or public safety threat to the U.S., and that denial of the visa would cause undue hardship. Decisions will be made on a case-by-case basis. J-1 physicians from one of the listed countries must carefully consider if applying for a visa stamp is an option.
Increase in Agency Investigations
Government agencies have been increasing investigations to ensure compliance with the priorities outlined in the executive orders (e.g. Buy American and Hire American Executive Order).
In 2018, this oversight will continue to increase as directed by the acting U.S. Immigration and Customs Enforcement Director in October 2017. The acting Director instructed the Homeland Security Investigations (HSI) unit, the investigative unit of Immigration and Customs Enforcement, to significantly increase the number of worksite enforcement actions over the next year. They are expected to target employers who fail to comply with I-9 employment eligibility verification requirements, and to also arrest unauthorized workers who are found as a part of the investigations – a coordination that has not happened in the past. To prepare, employers should ensure compliance with the Form I-9 employment eligibility verification requirements.
Increase in Site Visits
Under current law, the United States Citizenship and Immigration Service's (USCIS) Administrative Site Visit and Verification Program (ASVVP) immigration officers make unannounced visits to employers to gather information related to compliance of H-1B and other employment non-immigrant visa petitions that employers have filed with the USCIS.
On October 20, 2017, the Office of Inspector General (OIG) within the Department of Homeland Security issued the results of its audit of the U.S. Citizenship and Immigration Services (USCIS) H-1B on-site visit program (specifically, its Administrative Site Visit and Verification Program, ASVVP) and found that USCIS “failed to provide minimal assurance that H-1B visa participants are compliant…with applicable immigration laws and regulations.” In response, USCIS indicated that it would make changes to improve performance including:
Targeted Sited Visit and Verification Program.
Enhanced Sharing of Data with the Department of Justice, Department of Labor, and Department of State. Such sharing will include allowing DOL to have access on employers that have been identified as having committed fraud or under investigation, allowing DOS to have access to on-site visit information in connection with visa applications at U.S. Consulate/Embassy posts worldwide, and allowing DOJ to have access to data in relation to complaints regarding potential discrimination against U.S. workers.
Increase in Number of Worksite Visits.
In 2018 we will see the implementation of the above listed changes resulting in site visits becoming the norm — increasing employers' exposure. Employers must implement sound compliance programs to minimize risk.
Visa applicants have always been vetted (“scrutinized”) extensively, however, in compliance with the 2017 executive orders, vetting has become “extreme.”
In 2018, we can expect “extreme vetting" to continue causing substantive delays in visa processing around the world. We recommend applicants schedule visa stamping interviews as early as possible in one's trip to avoid administrative delays negatively impacting the foreign national's ability to return to the U.S. and resume employment.
Under this administration, changes related to immigration policy are happening fast. However, immigration laws are still in effect and any changes that do not conform to the existing laws can and should be challenged.