Hunton Retail Law Resource

If 2017 is any indication, the new year will bring a fresh cascade of changes—both announced and unannounced, anticipated and unanticipated—in the business immigration landscape. Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented—including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses and homeless shelters—relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American/Hire American” executive order. There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018. Here’s what to expect.

H-1B Workers Will Continue to Be Targeted

According to the Department of Homeland Security’s ("DHS's") 2018 regulatory plan, H-1B employers, H-1B employees and their family members could be dramatically affected by new regulations. The plan, in conjunction with the “Hire American” executive order, proposes to:

• Require pre-registration and pre-selection for companies that wish to sponsor new H-1B workers. Although selection criteria are unknown at this time, a similar Notice of Rulemaking was published in March 2011 (but never finalized) that called for random selection. We do not yet know to what extent, if at all, the new rule will track the old proposal.
• Redefine the term, “specialty occupation,” so that only “the best and brightest foreign nationals” qualify. We do not know how “best and brightest” will be measured, or how the standards for “specialty occupation,” which apply to the H-1B job, not the individual employee, will be applied to achieve the stated goal.
• Redefine the terms “employment” and “employer-employee relationship,” which are pivotal to the H-1B category, in order to “protect U.S. workers and wages.” We have no further information at this time, but can reasonably predict that this proposal will affect third-party placements, contracted resources and staffing agencies.
• Eliminate work permits for the spouses of H-1B workers. If an H-1B employee is well into a green card process based on employer sponsorship, current law allows the spouse to apply for a work permit, a provision that mainly helps Indian and Chinese nationals, who have a wait list of up to 10 years before green cards are issued. Spouses of H-1B workers in other nationalities get work permits or green cards much faster, often within a year or two.
• End the widely used 1-year and 3-year extensions that enable H-1B workers to keep their jobs past the normal 6-year limit, while green card processes are underway—another provision that primarily helps those who are stuck on years-long waiting lists (not listed in DHS’s regulatory agenda, but reported by several outlets).

Additional H-1B changes that occurred in 2017 and are likely to continue include:

• Under “Hire American” and, specifically this seemingly innocuous phrase, “ensure that H-1B visas are awarded to the most-skilled or highest-paid,” we expect ongoing challenges to employers who file for entry level professionals. In the 2017 H-1B filing cycle, U.S. Citizenship & Immigration Services (“USCIS”) sent thousands of Requests for Evidence proposing that entry level jobs could not qualify for H-1Bs, despite absolute clarity under current law and regulations—not to mention decades of USCIS practice—that salary is irrelevant to the “specialty occupation” analysis, as long as job duties require preparation at least at the baccalaureate level.
• Under a March 2017 USCIS policy memo, we expect challenges to employers who file for Computer Programmers, particularly when pay scale is at the lower end and duties are described as “complex” or “unique.”
• Under an August 2017 USCIS policy memo defining “affiliate” and “subsidiary,” we expect new challenges to employers who claim exemption from the “ACWIA” training fee by virtue of employee head count.

The Welcome Mat for Foreign Students Will Be Rolled Up

DHS’s regulatory agenda also proposes “comprehensive reform” to practical training programs that allow foreign students to obtain paid work in their academic fields after graduation—a pathway that can lead to H-1B status and eventually green card sponsorship by U.S. employers who find their services valuable. Immigration & Customs Enforcement is widely expected to end “STEM OPT” eligibility, a 2015 provision that extended the normal 1 year of practical training to 3 years for graduates in STEM fields who work for employers enrolled in E-Verify. Ironically, the agenda also promotes measures to incentivize E-Verify use by more U.S. employers, which this very provision has done.

Employment-based Green Card Eligibility Will Be Reduced

The “Hire American” executive order cryptically mentions a legal provision that makes permanent foreign workers inadmissible to the United States without a valid labor certification, and vows to “rigorously enforce“ it in order to “create higher wages and employment rates” for U.S. workers. Operated by the Department of Labor’s (“DOL’s”) Employment and Training Administration, the labor certification program requires an employer to prove that no qualified U.S. worker is available for a sponsored job and that employing the foreigner will not adversely affect wages and working conditions for U.S. workers.

DOL’s 2018 regulatory agenda does not mention changes to labor certification or other foreign-worker programs. However, DHS’s agenda proposes to revamp how USCIS officers judge whether an alien will become a “public charge,” defined as becoming “primarily dependent” on government help for income maintenance. By regulation, the public charge ground of inadmissibility has never been applied to employer-sponsored immigrants, unless the individual or a family member has an ownership stake in the company. While it is unclear how “Hire American” may alter this provision, the Administration could, for example, require a certain education or salary level (even above DOL’s prevailing wage determination that is a prerequisite for labor certification) as proof that an immigrant is not likely to become a public charge. The Trump Administration could also broaden the list of public benefits that make immigrants inadmissible (or deportable, after a green card is granted). That list does not currently include, for example, school lunch programs, government financial aid for college, public health services such as immunizations and testing or treatment for communicable diseases, public housing benefits or utility assistance programs. If such changes are implemented, they will have a sweeping effect on large numbers of legal immigrants, including those who are sponsored by their employers.

Other Visa Categories Will Be Constrained and Scrutinized

Based on adjudications and processing trends we have seen in 2017, we anticipate all of the following to be features of 2018 business immigration:

• J-1 Summer Work/Travel Visas: Many U.S. companies employ young people as summer interns under this program. In January 2017, the State Department expanded its 2011 and 2012 changes to the program by further limiting the types of positions that are eligible, the role of foreign and domestic third-party agencies in placing individuals with companies, and other changes.
• TN Visas: In April 2017, the Administration announced it would not unilaterally withdraw from NAFTA, but would renegotiate the treaty. During renegotiations, we expect DHS to continue restricting eligibility under NAFTA’s Professional Series List, where possible to do so. We have already seen the definition of economists diminished to exclude financial analysts and other financial occupations.
• Advance Parole Denials: In August 2017, without notice, USCIS began denying advance parole (travel permission) for all applicants who travel while the Form I-131 application is pending. Previously, applicants who maintained underlying H-1 or L-1 status were not subject to advance parole denial.
• Extensions of Status: In October 2017, USCIS announced it would no longer defer to prior approvals in most categories (H-1B, L-1A, L-1B, O-1A, O-1B, TN, etc.), even when the same employer files an extension for the same worker in the identical job at the same location. Previously, the agency did defer to prior approvals if there was no material change, unless approving the first petition was “clear error” on the agency’s part. Ending this deference effectively makes every filing an “initial” petition, with the same high bar for approval as if the agency had never seen the same set of facts before, and effectively preserves the agency’s seemingly infinite use of “discretion” to challenge even clearly approvable filings.
• Site Visits: On-site visits by government inspectors to the workplaces of both H-1B and L-1 workers ramped up in 2017 and are expected to increase further. Our clients have reported site visits even for employees who entered in blanket L-1 status, which involves no individual filing with USCIS. In early 2014, when USCIS’s Fraud Detection and National Security Directorate announced that its site visits would expand to include the L-1 category, employees who entered on blanket L-1 visas were explicitly excluded because USCIS had no way to identify or track them at that time. That may no longer be the case, and employers may experience blanket L surveillance and inspection in 2018, in addition to the more common visits after an H-1B or L-1 petition has been approved by USCIS.

Hunton & Williams’ Immigration Practice will continue to monitor and report on these and other changes to law, regulation, policy and practice that may affect U.S. businesses and their employees in 2018 and beyond.