- February 8, 2018
- Posted by: Tim Braswell
- Category: Firm News
Article By: FGI Attorney – Melissa Winkler
In April 2017, President Trump issued the Buy American, Hire American Executive Order. United States Citizenship and Immigration Services (USCIS) has carried out and is considering a number of policy and regulatory changes to fulfill the President’s “Buy American, Hire American” executive order, including conducting a “thorough review” of employment-based visa programs. Further, there are several bills being considered in the House and Senate pertaining to immigration. The following items are immigration changes being discussed for 2018:
1. Possible Cancellation of H-4 EADs
There is both a pending court case and a proposed rule to eliminate the 2015 rule which granted H-4 Employment Authorization Documents (EADs) to certain H-4 dependent spouses seeking employment-based lawful permanent resident (LPR) status.
‘Save Jobs USA’ filed a law suit which was initially dismissed in 2016. Subsequently, ‘Save Jobs USA’ filed an appeal claiming the rule has no protections for U.S. workers and increases the pool of workers looking for jobs and the U.S. Department of Homeland Security (DHS) never had the authority to grant EADs to H-4 visa holders.
Further, DHS is reviewing the 2015 rule which extended employment authorization to certain H-4 dependent spouses. This follows the issuance of Executive Order 13788, Buy American and Hire American. The rule is proposing to remove H-4 employment authorization. A rule addressing this issue may be published in February 2018
2. H-1B Cap Lottery and Employer Registration
DHS is considering a rule that would require H-1B employers to pre-register for the H-1B cap lottery and only those employers that have won a cap number would be allowed to file an H-1B cap petition. DHS may also propose a rule to impose a priority system, which would give preference to the most highly educated and/or highly paid H-1B workers. Rules addressing these issues may be published in February 2018. Changes to government regulations are subject to the rule making process, which usually takes several months to complete and involves a notice and comment period for the public. As such, it is anticipated that any proposed rules would not complete the rule making process before April 1, 2018, the start of the filing period for the 2018 H-1B cap season. However, it is not clear, if some proposed changes could be implemented prior. Further, a preference system that requires pre-certification for the lottery would likely require legislative action. Some bills are proposing this (including one proposed by Congresswoman Zoe Lofgren) but this would not likely move in Congress.
3. Changes to OPT
DHS is considering imposing a rule that would increase the oversight of students on Optional Practical Training (OPT), and impose additional obligations on the part of the U.S. employers who employ F-1 students during their OPT period. It is anticipated that a rule addressing this issue may be published in October 2018.
Additionally, the Trump administration is considering eliminating the regulation on STEM OPT. The Obama administration finalized a rule extending the work period for international students in STEM fields by two years, for a total of three years of work experience. The Trump administration may rescind this additional two year period.
4. Potential Fee Increase
DHS is considering a rule to increase USCIS filing fees for various petitions and applications. DHS indicated the rule may be published in October 2018. Additionally, civil monetary fines have been adjusted for inflation for H-1B program violations effective January 2, 2018.
5. Changes in Definitions and Adjudications for H-1B Petitions and Revised LCA
DHS is in the process of promulgating a rule that would revise the definition of the term “specialty occupation” in connection with the H-1B program. The rule also proposes to revise the definition of the terms “employment” and “employer-employee relationship.” It is anticipated that a rule addressing this issue may be published in October 2018.
USCIS has already been amending their policy on what qualified as a Specialty Occupation. In March 2017, USCIS released a policy memo impacting adjudication of petitions listing a level 1 wage. Companies are receiving numerous Requests for Evidence (RFEs) addressing issues including:
- USCIS asserting duties indicate the position is beyond entry level and LCA doesn’t correspond with position.
- USCIS claiming Level 1 is not a specialty occupation.
USCIS announced that the number of RFEs issued between January 2017 and August 2017 had increased by 44 percent from the previous year. The USCIS memo also stated that the U.S. Department of Labor’s (DOL) Occupational Outlook Handbook (OOH), alone (which has been used to determine if the petitioner’s position and positions like it generally require a bachelor’s degree or equivalent), will not be enough to prove the position is a “specialty occupation” and USCIS may look more at the proposed job duties when determining the complexity to determine whether the position is a specialty occupation. In 2018, we can anticipate even greater inspection of job descriptions and the specialty occupation standard.
6. Increased Site Visits and Increased Scrutiny by CBP
FDNS Site Visits
Following the Executive Order Buy American, Hire American, there has been an increase in the number of USCIS site visits. The USCIS Administrative Site Visit and Verification Program has Fraud Detection and National Security (FDNS) officers make unannounced visits to collect information as part of a compliance review. Going forward, USCIS is planning a more targeted approach to site visits focusing on:
- Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
- H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
- Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
ICE Site Visits
In an October 2017 speech, Immigration and Customs Enforcement (ICE) acting director Thomas Homan confirmed his plans to follow the President’s orders increase enforcement to prevent fraud and abuse. ICE has already increased inspections and worksite operations, and going forward ICE indicated the agency will:
- Boost the number of inspections in the upcoming fiscal year;
- Multiply time spent on enforcement by four or five times;
- Target undocumented employees for detention and removal; and
- Prosecute employers for knowingly hiring or retaining workers who lack valid U.S. employment authorization.
In June 2017, the U.S. Department of Labor (DOL) announced plans to more aggressively confront entities committing visa program fraud and abuse. The DOL Secretary directed the Wage and Hour Division to conduct additional civil investigations, instructed the Employment and Training Administration (ETA) to propose changes to the LCA, and told the ETA to coordinate the administration and enforcement of visa programs to refer criminal fraud to the Office of the Inspector General. The DOL will continue to work with the DOJ and DHS to further investigate and detect visa program fraud and abuse.
In addition to site visits for those workers in the United States, Customs and Border Patrol (CBP) Officers are imposing greater levels of scrutiny for those individuals seeking entry to the U.S. Following the Buy American/ Hire American Executive Order, The Foreign Affairs Manual (FAM) was updated for H, L, and O visas so officers should take the executive order into consideration when they review how visas are adjudicated at consulates abroad. The FAM and associated Handbooks (FAHs) are an authoritative source for the Department of State’s (DOS) procedures that govern the operations of the State Department, the Foreign Service and other federal agencies.
It is crucial that employers are prepared for greater scrutiny of employment sites and immigration forms by auditing their public access files and having accurate I-9 records.
7. Re-adjudication of Extension Petitions
USCIS issued a memo in 2004 which directed adjudicators when adjudicating petition extensions involving the same parties and underlying facts as the initial petition to defer to the prior determination. An October 2017 memo rescinded the former USCIS policy and stated that adjudicators must review the petition and supporting evidence to determine whether the petition may be approved. USCIS also indicated that they may still request additional evidence in extension cases. Employers should be prepared for greater scrutiny over extension petitions in 2018.
8. I-485 Interviews
October 2017, USCIS started expanding in-person interviews for employment-based Adjustment of Status applications. Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types. This new requirement may increase processing times for these petitions. In our office’s experience, the interview process appears to be going smoothly for employment-based applicants.
9. “Travel Ban” Update
December 2017, the U.S. Supreme Court issued orders which allowed the Presidential Proclamation from September 2017 to be implemented imposing country-specific travel restrictions on individuals from 8 countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Some countries have specific visas which are suspended while for other countries all immigrant and nonimmigrant entry is suspended. A case-by-case waiver is available if foreign national can show that being denied entry would cause undue hardship to the individual, their entry would not pose a threat to U.S. national security, and that their entry “would be in the national interest.“ Procedurally, cases will continue to be reviewed and scheduled for visa interviews. The officer will determine whether the applicant is affected by the proclamation and, if so, whether the case qualifies for an exception or may qualify for a waiver. No separate application for a waiver.
10. Re-Negotiating NAFTA
The U.S., Mexico, and Canada are currently renegotiating the North American Free Trade Agreement (NAFTA). Businesses and individuals are concerned that the entire NAFTA professional visa category (TN Visa) might be eliminated during NAFTA renegotiations. Movement of professionals was one of the key demands Canada listed before NAFTA negotiations commenced in August 2017. The U.S., which could terminate NAFTA, has not addressed labor mobility in the first rounds of negotiations. Canada also would like the list of NAFTA occupations to be expanded. In contrast, in November 2017, USCIS issued a policy memo clarifying the types of duties permissible under the TN visa category for Economists. It is possible the Trump Administration may look at restricting other TN categories in the future.