As an employer you may have heard about how – without a “heads-up,” without regulatory or legislative changes, the current administration is drastically changing the landscape impacting the hiring and retention of foreign nationals in the U.S. After nearly forty years of practicing in the immigration field, representing employer and foreign nationals, I find the developments unprecedented, incredulous and genuinely heartbreaking for those whose dreams of making a life in the U.S. and contributing their talents to our economy are being dashed.
What are the adverse developments; how will they impact my company; and are there any actions I can take to retain and continue recruiting essential, valuable workers? This article will discuss the top immigration threats and will provide tips on how to address the diverse and wide-spread issues plaguing employers.
Stricter Adjudicatory Standards for H-1B Applications
The impact of the Trump Administration’s Executive Order “Buy American and Hire American” ostensibly aimed at creating higher wages and employment rates for U.S. workers has been and will continue to be felt most acutely in the processing of H-1B petitions. These petitions are designed to help U.S. companies augment their workforce with talented and skilled foreign nationals – many who are employed in STEM occupations (Science, Technology, Engineering, and Math) with Master’s and PhD degrees.
Over the last several months, employers who have filed these petitions have received burdensome RFEs (Request for Further Evidence) from U.S. Citizenship and Immigration Services (USCIS) questioning whether the position is for a “special occupation,” i.e. one that requires the attainment of a Bachelor’s degree or higher in a specific specialty.
New reports of talented foreign nationals who must return home after their H-1B application is denied are heartbreaking. Take, for example, the Stanford University MBA graduate whose employment involved artificial intelligence and big data. It’s incredulous that USCIS found unpersuasive the support letters from field authorities including a Nobel Prize winner and denied the application concluding that the job didn’t require advanced skills.
Based on new USCIS guidance, no deference is given to an extension application – even if it was previously approved multiple times. Lacking complete uncertainty as to whether an application will be approved, job mobility is stifled; an H-1B national will think twice before accepting a new position with a different employer. The impact is felt profoundly – not only by the employer who is relying on the continued work authorization from a tenured employee assigned to valuable projects – but also by the employer wishing to recruit new talent.
- The H-1B application should educate USCIS about your industry, the complexity and importance of your product or services and its economic value to society.
- Provide a robust detailed job description.
- Correlate the theoretical knowledge gained from university coursework to the performance of each critical job duty.
- Review your wage compensation and ensure that the job description and requirements reflect commensurate pay. For example, one would not expect a professional leading a team or supervising others to be paid an entry level salary.
USCIS Field Office Interviews Now Required for Employment-Based Applications
USCIS has announced that it will conduct personal interviews at the final stage prior to granting permanent residency. This is a stark departure from current policy. Interviews were previously waived for employment-based applicants, and USCIS made decisions based on the approval of the underlying application and the strength of the final submission. As far back as 1996, USCIS issued regulations allowing for the elimination of final interviews. In 2005, USCIS issued a related guidance memo. The goal was to promote more efficient adjudications for routine, non-suspect cases and to reduce backlogs.
While USCIS has indicated that the purpose of the interview is to verify the supporting documentation and information presented in the underlying applications, not to re-adjudicate the petition, early reports reveal that USCIS examiners, who have no prior experience with these applications, are re-adjudicating the bases for the underlying approvals. Indeed, a different government agency, the Department of Labor (DOL), not USCIS, often adjudicates the predecessor application, applying a unique set of regulations, policy memos and administrative case law.
The need for a district office interview will create a burden on employees and their attorneys who may need to travel a long distance to attend an interview. For example, a San Luis Obispo or Santa Barbara resident’s pertinent USCIS Field Office is Chatsworth, California – more than 175 miles from San Luis Obispo. USCIS’ failure to understand the bases of eligibility will produce indecision and delays, foiling efforts to reduce the prior salutary goal of “backlog reduction.”
- Be thoroughly prepared for the interview and be ready to address questions/concerns from an inexperienced examiner second-guessing eligibility.
- Be ready to produce all records demonstrating continuous maintenance of immigration status since first arrival to the U.S.
Possible Elimination of Work Permits for Spouses of H-1Bs
Since 2015 spouses of H-1B nationals can apply for a work permit pending the final processing of an application for permanent residency – which can take 10 or more years for Indian nationals and 5 or more years for Chinese nationals. The spouse’s ability to work has been quite beneficial in enabling the spouse to find work and supplement the family income – particularly in those cities with a high cost of living. Now, the Trump Administration is re-examining this benefit. The continued allocation of these limited work permits is uncertain. The Administration’s position may be forthcoming in early 2018.
- Because these work permits are not available until the latter stages of permanent residency, an employer may consider whether to file an application to transition the employee to permanent residency sooner, rather than later.
- The approval of the application may be fast-tracked with a premium fast track filing fee thereby facilitating and expediting the work permit.
Consular Processing Trends for Employment-Based Visas
Overseas American consular officers have increasingly examined visa applicants with approved employment-based petitions to ensure that the foreign nationals are eligible for the benefit. Now, adjudicatory standards not contained in the statutory framework are often raised in the interview. For example, managerial and executive level employees and those possessing specialized skills employed at overseas multinational corporations may be asked about U.S. labor shortages and wage compensation – questions deriving their impetus from President Trump’s “Buy American Hire American” Executive Order.
The Trump Administration has also increased administrative processing delays for individuals from Muslim majority countries under an informal “Extreme Vetting” program, wherein the applicant is required to provide additional details of their life over the past 15 years. Additionally, administrative processing delays may also be triggered for applicants who work in sensitive scientific fields at risk for knowledge technology transfer.
Reduction in Department of State staffing combined with hiring freezes will lead to a shortage of consular officers to process visas at overseas posts, which is likely to result in increased wait times for visa appointments.
- Applicants must be prepared to clearly communicate their eligibility. Failure to do so, in the best case scenario, may lead to delays in visa issuance, but more likely a visa denial might occur with a request to USCIS for petition revocation or re-examination.
- Although U.S. labor shortage and wage compensation are not relevant determinants, the positions filled by these global transferees are quite specialized, the skills are critical and are in demand. One should be prepared to address this level of examination.
- Employers should plan ahead and prepare for delays in the transfer of employees to the U.S.
Halt in Temporary Work Permits for TPS and DACA
Recent announcements by the Department of Homeland Security (DHS) regarding the rescission of the Deferred Action for Childhood Arrivals (DACA) program and termination of Temporary Protected Status (TPS) for certain countries will have far-reaching consequences. The impact will be felt not only by immigrants and their families, but also by their employers and local economies. Once TPS and DACA holders’ employment authorization expires, their employers must terminate these individuals or face fines and penalties for their continued employment without work authorization. Just how many employees face losing their employment? Approximately 800,000 people received employment authorization under the DACA program, and the Center for American Progress estimates that over 90% of those young people are employed. With the end of the DACA program, tens of thousands of individuals will lose their employment authorization, and their jobs, each month.
Similarly, the recent termination of TPS for Nicaraguans and Haitians, and the probable termination of TPS for Honduras in the near future, will result in the loss of employment authorization and protection from deportation for over 250,000 individuals living and legally working in the United States. Ending TPS will force employers to fire long-term and valuable employees, and estimates are that turnover costs will top $900 million.
It is uncertain whether Congress will pass long-overdue legislation that will provide a permanent solution to the hundreds of thousands of TPS and DACA holders who have been living and working lawfully in the United States for years – even decades.
- Although the current avenues for legalization are slim, employers might consider whether to offer immigration assistance for these valuable employees.
- With the threat of a fourfold increase in I-9 inspections which are designed to determine immigration employment compliance, employers need to clearly docket the expiration date of work permits and realize that the continued employment of someone with expired work authorization can lead to substantial fines.
Increased Worksite Enforcement and Compliance Audits: FDNS Inspection Audits
Following on the heels of an Office of Inspector General report entitled USCIS Needs a Better Approach to Verify H-1B Visa Participants issued October 20, 2017, it is anticipated anticipated that USCIS will conduct more “robust” Administrative Site Visits to companies that have filed H-1B and L-1 petitions by USCIS’ Fraud Detection and National Security (FDNS) unit. Some of these site visits are compliance-based, random and unannounced; and others are “targeted visits,” now called “For Cause.”
The purpose of these visits is to determine if the foreign national is working at the job site indicated in the petition, if the salary stated in the application is being paid, and if the job duties are accurately stated. The focus may even expand to whether the appropriate wage is being paid considering the job duties.
The Inspector General’s report as well as Executive Order 13768, Enhancing Public Safety in the Interior of the United States, signed January 25, 2017, confirms plans to increase targeted site visits which may focus on employers with a very high ratio of H-1B workers compared to U.S. workers and on staffing or consulting companies that place workers at other companies in order to supplement that company’s workforce or to provide consulting services.
- In order to prepare for an FDNS site visit, ensure that the H-1B has accurate information and file amendments for any material changes, such as relocation to a job site outside the geographic area or significant changes to the job duties. Relocations outside the geographic employment site may trigger salary increases and promotions to a managerial or senior level classification may also trigger a salary differential.
- Second, establish SOPs to address site visits that include the proper protocol for responding to the field auditor.
Threats to Eliminate North American Free Trade Agreement (NAFTA) Work Permits for Canadians and Mexicans
There has been much discussion about the renegotiation of the NAFTA agreement; however there has been little mention of the work permits that flow from the treaty – that is, until Senator Grassley sent a letter to the Office of the U.S. Trade Representative on October 23, 2017, expressing concern that the TN classification “permits Mexican and Canadian citizens to take high-paying professional jobs.”
Senator Grassley urged the re-examination of the TN work permit stating: “… I believe that it would be a mistake to essentially renew the TN temporary worker visa category, without considering the broader implications for the current U.S. economy. Given President Trump’s willingness to reevaluate – or reject – any and all of the NAFTA agreement, and in the interest of protecting American workers, I recommend that you specifically include temporary workers in the ongoing NAFTA review.”
Sen. Grassley’s concerns can be summarized as follows: 1) Unlike H-1Bs, TNs can be issued without regarding to the payment of “prevailing wages” for the position; 2) There is no limit to the length of employment for the TN employee; 3) With the increased scrutiny of H-1B applications, more employers will revert to the TN classification to secure work permits.
With the heightened attention on TN work permits, there are reports of increased rejections of applications by CBP at Canadian ports of entry. What can employers do about the threatened loss of this valuable workforce?
- Consider taking steps to move to another non-immigrant category such as H-1B or filing a permanent residency application.
- Ensure diligent and thorough preparation of the TN applications which, up to now, have been viewed by many as easy to prepare.
This article was originally published on the Professionals In Human Resources Association’s website on November 28, 2017. Click here to access the article. Acknowledgment is given to David Strashnoy and Amy Prokop Lenhert, senior attorneys with SGG, for their assistance with this article.