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 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.
- Re-define 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.
- Re-define 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 McClatchy and other 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 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” EO 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 (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 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 2017 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. If you need specific advice on a particular situation, please contact one of our attorneys directly.
- Counsel
Suzan’s practice focuses exclusively on immigration and nationality law. Suzan represents businesses and individuals in administrative proceedings before the U.S. Citizenship and Immigration Services, U.S. Customs and ...
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- News & Events
- Ninth Circuit
- NLRA
- NLRB
- NLRB Poster
- NLRB; NLRA; Labor Law; Union; Collective Bargaining; Workplace Rights
- NLRB; Property Rights; Misclassification
- NLRB; Union; Collective Bargaining Agreement
- No-Poach Agreements
- No-Rehire
- Noah’s Ark
- Noel Canning
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- OFCCP Developments
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- Off Duty Conduct
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- Ondray T. Harris
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- Patricia Shiu
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- Pay
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- pay scale
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- Pay/Compensation
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- PBGC
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- Pennsylvania
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- Personnel Policies
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- Range
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- Reasonable Accommodation
- Reasonable Accommodations
- Recess Appointments
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- recruiting
- Reduction-in-Force
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- Regular Rate
- Regular Rate of Pay
- Regulation
- Regulations
- Regulatory Compliance
- Rehabilitation Act
- Reilly Moore
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- Reimbursements
- release
- Religion
- Religious Accommodation
- Religious accommodation; Title VII; SCOTUS; Supreme Court; Third Circuit
- Religious Accommodations
- Religious Beliefs
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- Religious Institutions
- remedies
- Remote Work
- remote workforce
- Reopen Workplace
- Reopening Business
- Reopening Workplace
- Repeal
- report
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- Representation Election
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- Reprisal
- Reproductive Loss Event
- Reproductive Loss Leave
- Reproductive Rights
- Rescind
- RESPECT Act
- rest breaks
- Restaurant
- Restaurant Industry
- Restaurants
- Restoring Balance and Fairness to the National Labor Relations Board
- restriction
- Restrictive Covenants
- Restrictive Covenants Act
- Retail
- Retail Litigation Center
- Retaliation
- Retirement Plans
- Retirement Savings
- Return to Work
- Revenue Procedure 2013-12
- Revenue Ruling 2014-9
- Ricci v. DeStefano
- Richard Griffin
- RICO
- RIF
- RIFs
- right of first refusal
- Right to Disconnect
- Right to Know
- Right to Work
- Right-To-Sue
- Rising Star
- Rite Aid and Lamons Gasket
- Robert Quackenboss
- Roland Juarez
- Roland Juarez; Los Angeles Business Journal
- Roland M. Juarez
- Rollovers
- Roth
- Rounding Policy
- Rounding Time
- Rule 23
- Rule 68 Offer
- Rule-Making
- Rulemaking
- Ryan A. Glasgow
- Ryan Bates
- Ryan Glasgow
- Sabbath
- Safety
- Safety Incentives
- Salary
- Salary Basis Test
- Salary History
- Salary History Bans
- Salary History Inquiries
- Salary Inquiry
- Salary Reduction
- Sales Commissions
- Same-Sex
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- San Francisco
- San Francisco Fair Chance Ordinance
- Sanjee Weliwitigoda
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- SB 459
- SB 553
- SB 95
- SB-973
- SBA
- SBC
- SCA
- Scabby
- Scale
- Scheduling Letter
- Schneiderman
- School Closings
- Scope Of Coverage
- Scott Brown
- Scott H. Kimpel
- Scott Nelson
- SCOTUS
- Sealed Records
- SEC
- Second Circuit
- Secondary Boycotts
- Section 125
- Section 1557
- Section 1983
- Section 203
- Section 2802
- Section 302
- Section 7
- Section 7 Rights
- Secure Scheduling
- Security
- Security Screenings
- Seff v. Broward County
- SEIU
- Self-Insured Health Plans
- Senate Bill 1162
- Separation Agreements
- Settlement
- Settlement Agreement
- Settlement Agreements
- Settlement Disclosure
- Seventh Circuit
- severance
- Severance Agreements
- Severance Payments
- Severe Injury Report
- Sex Discrimination
- Sexual Harassment
- Sexual Orientation
- SFFA
- Shaena Rowland
- Shannon S. Broome
- Sharon Block
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- Shelter in Place
- Short-Time Compensation Program
- Shutdowns
- Sick Leave
- Sick Pay
- Silica Standards
- Single employer
- SIR Dashboard
- Sixth Circuit
- Slow the Spread
- Social Distancing
- Social Media
- Social Media Evidence
- Social Media Policy
- Solicitation Policy
- Solicitation/Distribution Policy
- Southern California Pizza Co.
- Speak Out Act
- Specialty Healthcare
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- Spirituality Programs
- Spokeo
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- Standard of Review
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- Staples
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- state court
- state legislation
- Statistical Audits
- Statute of Limitations
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- Statutes of Limitations
- Staub v. Proctor Hospital
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- Steering Claims
- STEM
- Stengart v. Loving Care Agency
- Stephen Pattison
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- Stillborn
- Strategic Objectives
- Strategic Plan
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- Stray Remarks
- Strike
- Strike Plans
- Strike Tactics
- Students for Fair Admissions
- SUB Payments
- Subcommittee on Health
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- Subpoena
- Subpoena Duces Tecum
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- Successor Bargaining Duty
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- Suitable Seating
- Summary of Benefits and Coverage
- Super Lawyers
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- Supply Chain
- Supreme Court
- Susan Wiltsie
- Suspension
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- Technatomy Corporation
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- Tenth Circuit
- Terence Connor
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- Tesla
- Test Factor
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- Texas
- Texas Constitution
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- Texas Mutual v. Ruttiger
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- Texting
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- The Boeing Company
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- Third Circuit
- Third-party Liability
- Thompson v. North American Stainless
- Thriving in Their 40s
- Time Rounding
- Timekeeping
- Tip
- Tip Credit
- Tip Pooling
- Tip Sharing
- Tipped Employees
- Tipped Workers
- Tipping Policies
- Tips
- Title III
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- Title VII of the Civil Rights Act of 1964
- Tolling
- Top Insurance Cases
- TRAC
- Trade Secrets
- Trade Secrets & Non-Competes
- Trademark
- Traditional labor
- Trailblazer
- Training
- Training Programs
- Transgender
- Transgender Rights
- Transparency
- TransUnion
- Tratree
- Traxler v. Multnomah County
- Trial Management
- TRICARE
- Trucking Industry
- Trump Administration
- Trump Rule
- Tyler S. Laughinghouse
- Typicality Requirement
- U.S. Senate
- U.S. Senate Finance Committee
- UAW
- Uber
- Uber Drivers
- ULP
- ULP Charge
- UNC
- Unconscionability Doctrine
- Undocumented Workers
- undue hardship
- Unemployment
- Unemployment Benefits
- Unemployment Compensation
- Unemployment Discrimination
- Unemployment Insurance
- Unfair Labor Charge
- Unfair Labor Practice
- Unfair Labor Practices
- Uniform Glossary
- Unilateral Change
- Union
- Union Apparel
- Union Button
- Union Dues
- Union Election
- Union Elections
- Union Information Request
- Union Insignia
- Union Logo
- Union Organizing
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- Union Rat
- Union Representation
- Union Representation Elections
- Union Sticker
- Unions
- United States v. Windsor
- University of North Carolina
- Unlawful Insistence
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- Unsuccessful Assisted Reproduction
- UPMC Braddock
- US Chamber of Commerce
- US Supreme Court
- USAction
- USCIS
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- Use or Lose Rule
- USERRA
- Vacation
- Vacation Pay
- Vacation Scheduling
- Vaccination
- Vaccine
- Vaccine Incentives
- Vaccines
- Valley Hospital Medical Center
- Variant
- VBA
- VCP
- Venue
- Veterans Preference Act
- VETS-100A
- VETS-4212
- VEVRAA
- Victoria Lipnic
- Video
- Viking River
- Virginia
- Virginia Business Magazine
- Virginia Center for Inclusive Communities
- Virginia Employment Legislation
- Virginia Human Rights Act
- Virginia Labor Law
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- Virginia Lawyers Weekly
- Virginia Marijuana Laws
- Virginia Overtime Wage Act
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- Virginial Lawyers Weekly
- Virus
- Visa Waiver
- Vital Industry
- Volks Rule
- Voluntary Incentive
- Voter List
- VW
- Wage & Hour
- Wage and Hour
- Wage and Hour Exclusion
- Wage Equality Act
- Wage Fixing
- Wage Inquiries
- Wage Investigation
- Wage Payment
- Wage Penalties
- Wage Reduction
- Wage Statement
- Wage Theft
- Wage Theft Prevention Act
- Wage Transparency
- Waiter
- Waiting Period Rules
- Waiver
- Waivers
- walk around
- Walling v. Portland Terminal
- Wang v. Chinese Daily News
- WARN
- WARN Act
- Washington DC
- We Can Help
- Weapons
- Web Accessibility
- Web Designer
- Webinar
- Website
- Website Accessibility
- Weight Restrictions
- Weingarten
- Wellness Programs
- Wesson
- West Virginia Workplace Freedom Act
- WHD
- Whistleblower
- Whistleblowers
- White Collar Exemption
- William Emanuel
- William J. Emanuel
- Wilma Liebman
- Windsor Decision
- Withdrawal of Recognition
- withholding requirements
- Witness Statements
- Women
- Women In Leadership
- Women of Influence
- Women’s Equality Act
- Work Schedule
- Work Transfers
- Work-Sharing
- Worker Misclassification
- Worker Protection
- Worker Safety
- Workers Bill of Rights
- Workers Compensation
- Workers' Compensation Insurance
- Workplace AI
- Workplace Diversity
- Workplace Investigations
- Workplace Monitoring
- Workplace Policies
- Workplace Privacy
- Workplace Rules
- Workplace Safety
- Workplace Technology
- Workplace Violence
- Workplace Violence Prevention
- WR Reserve
- Wrongful Discharge
- Year In Review
Authors
- Jessica N. Agostinho
- Walter J. Andrews
- Ian P. Band
- Ryan M. Bates
- Christy E. Bergstresser
- Theanna Bezney
- Jesse D. Borja
- Brian J. Bosworth
- Jason P. Brown
- M. Brett Burns
- Daniel J. Butler
- Christopher J. Cunio
- Jacqueline Del Villar
- Kimberlee W. DeWitt
- Steven J. DiBeneditto Jr.
- Robert T. Dumbacher
- Raychelle L. Eddings
- Elizabeth England
- Juan C. Enjamio
- Karen Jennings Evans
- Geoffrey B. Fehling
- Jason Feingertz
- Katherine Gallagher
- Ryan A. Glasgow
- Sharon S. Goodwyn
- Meredith Gregston
- Eileen Henderson
- Kirk A. Hornbeck
- J. Marshall Horton
- Roland M. Juarez
- Keenan Judge
- Suzan Kern
- Elizabeth King
- Stephen P. Kopstein
- Torsten M. Kracht
- James J. La Rocca
- Kurt G. Larkin
- Jordan Latham
- Tyler S. Laughinghouse
- Crawford C. LeBouef
- Michael S. Levine
- Michelle S. Lewis
- Brandon Marvisi
- Lorelie S. Masters
- Reilly C. Moore
- Michael J. Mueller
- J. Drei Munar
- Alyce Ogunsola
- Christopher M. Pardo
- Michael A. Pearlson
- Adriana A. Perez
- Kurt A. Powell
- Robert T. Quackenboss
- D. Andrew Quigley
- Michael Reed
- Jennifer A. Reith
- Amber M. Rogers
- Alexis Zavala Romero
- Zachary Roop
- Adam J. Rosser
- Katherine P. Sandberg
- Elizabeth L. Sherwood
- Cary D. Steklof
- C. Randolph Sullivan
- Veronica A. Torrejón
- Debra Urteaga
- Emily Burkhardt Vicente
- Kevin J. White
- Holly H. Williamson
- Susan F. Wiltsie