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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Beyond the travel ban: Headaches for employers

Employment-based immigration under the Trump administration

Tune into any news outlet today and no doubt you will hear something about the Trump administration’s crackdown on illegal immigration. You’ll most likely hear about building a wall across the U.S.-Mexico border or proposals on how to address the fate of the so-called “Dreamers,” 800,000 individuals brought to the United States illegally as children. But less reported are the sweeping changes that have taken place in employment-based immigration during the first year of Donald Trump’s presidency.

New lawyers considering a career in immigration law often overlook employment-based immigration, which can be described as an intersection of employment law, human rights law, and family law. Employment-based immigration is a subcategory of immigration law that involves sponsorship by a U.S. employer or a self-petition by someone at the very top of their field of endeavor. Employment-based immigration is an important part of America’s immigration framework because it allows those with much-needed skills to work in the United States on a temporary or permanent basis, usually at the request of an interested employer.

Travel ban

After becoming President, Donald Trump wasted no time in implementing many of his campaign promises to curb immigration by adopting a series of anti-immigrant policies, mostly through the signing of executive orders, beginning with Protecting the Nation from Foreign Terrorist Entry into the United States, signed on January 27, 2017. Trump’s series of orders on the travel ban were discussed in detail in a previous article in this magazine (Caroline Ostrom and George C. Maxwell, “President’s travel ban heads to the U.S. Supreme Court,” October 2017). For purposes of this article, it bears noting that since its first iteration, the travel ban has caused confusion for businesses due to the uncertainty caused by the multiple executive orders and subsequent challenges. It also has created complications for business because temporary working visas and permanent residence visas have been and continue to be denied for nationals of the seven countries named therein—Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen—thus affecting the pool of eligible hires.

Changes to temporary immigration

The H-1B visa is the most popular of the temporary “nonimmigrant” working visas. H-1B visas are designed for professionals working in specialty occupations (i.e., positions that require a level of knowledge typically associated with those who have at least a bachelor’s degree). The President’s Buy American and Hire American executive order makes significant changes to H-1B visa processing by pushing the U.S. Department of State, the U.S. Department of Labor, and the U.S. Department of Homeland Security to issue new rules protecting the interests of U.S. workers and preventing fraud and abuse in the employment-based immigration system.

In response, the Department of Homeland Security rescinded an earlier policy that allowed immigration officers to give deference to previously approved petitions when an employer filed a petition to extend a worker’s H-1B status. Under the order, all H-1B petitions now face a much higher level of scrutiny. To illustrate this, in 2017, there was a 45 percent increase in the issuance of requests for evidence (RFEs), even though the number of petitions filed increased by less than 3 percent. This significantly increased the costs employers faced in sponsoring H-1B employees, as well as the overall wait time for their petitions to be approved. Some petitions are still pending after nearly 10 months, and some have been denied despite the fact that the employees have been working in the United States for more than six years.

But this is just the beginning. The administration has also announced plans to significantly reform the H-1B visa program during 2018. These plans include the following objectives:

  • Ensure that H-1B visas are awarded only to those with the most skill or highest salary;
  • establish an electronic registration program for employers who are subject to the annual H-1B cap (there is an annual limit of 65,000 visas for new H-1B petitions, with some exceptions);
  • modify the process by which new H-1B petitions are selected from the current random lottery-type selection;
  • revise the definition of “specialty occupation,” which would result in the denial of petitions that were previously approved for the same position; and
  • revise the definition of what constitutes a valid employer-employee relationship from the current right-to-control definition.

The H-1B is not the only employment visa status affected by the current administration. One benefit that is expected to be rescinded in the near future is the grant of employment authorization to certain spouses of those in H-1B status. Currently, certain H-4 spouses of H-1B visa holders are allowed a temporary employment authorization document (EAD). The administration has proposed terminating the H-4 EAD program.

Changes to permanent immigration

Prior to October 2017, employment-based applicants for permanent residence were only required to attend an in-person interview if there was a specific concern with their application for adjustment of status (the last step in the permanent residence process). Otherwise, their interviews were waived. The waiver made sense because the employment-based immigration process has a built-in requirement that the petitioner must show either that (1) the foreign worker is one of the very best in the field of endeavor, or (2) there are no qualified, willing, able, and available U.S. workers to fill the position. Nevertheless, as of October 1, 2017, all applicants for employment-based permanent residence are required to attend in-person interviews. This requirement has placed a huge strain on local immigration offices (most of which are completely unfamiliar with the employment-based immigration process), creating never-before-seen delays.

The administration also plans to significantly reduce the number of immigrants coming to the United States permanently. In August 2017, President Trump voiced his support for a bill entitled the Reforming American Immigration for Strong Employment Act (RAISE). If passed, the RAISE Act would cut legal immigration levels in half by eliminating many of the current categories under the family-based immigration system. The RAISE Act would also change how employment-based immigration visas are allocated by replacing the current system with a points-based system. In this point-based system, applicants would earn points for possessing certain preferred characteristics (e.g., a high-paying job, strong knowledge of English, a high level of education, and an age close to 25). Those with the highest points would be able to apply for permanent residence. Opponents of the bill argue that it would give preference to white Europeans over those from other parts of the world.

Conclusion

These are just some of the many changes that U.S. employers have seen with respect to employment-based immigration in the year since President Trump took office. While the president has discretion in implementing immigration policy, it is important to remember that the primary role in changing immigration law lies with Congress. Only time will tell what other changes await.

 

JOHN MEDEIROS is a partner with Myers Thompson P.A., a law firm based in Minneapolis, Minnesota that represents corporate clients in employment-based immigration matters. After working for 25 years in the field of immigration law, he received his J.D. from Hamline University School of Law in 2014.

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