Insight

Buy American, Hire American Takes Its Toll on Business Immigration

USCIS is considering the reinterpretation of “may grant” language contained in the statute deeming it discretionary rather than mandatory.

Buy American, Hire American
Karen Gabriel Moss

Karen Gabriel Moss

February 8, 2018 01:45 PM

Although 2017 saw no major immigration legislation, the Trump administration has nevertheless had a major impact on immigration through executive order and adjudication. The travel ban, termination of Deferred Action for Childhood Arrivals (DACA), deportation, and chain immigration generated headlines and widespread attention. More quietly, similar changes were occurring in the area of business immigration under the policy of Buy American, Hire American.

In the past, there had been bipartisan support for employment-based immigration that brought the best and brightest to the U.S. The sea change has been felt most acutely in the H-1B specialty occupation category. Traditionally, H-1Bs were thought to be available to those professionals with at least Bachelor’s degrees and working in professional jobs. In 2016, approval rates were 92 to 93 percent. In 2017, requests for evidence doubled and denial rates more than doubled to 37.9 percent and 17.6 percent, respectively. Entry-level and computer-related positions were hit the hardest.

The U. S. Citizenship and Immigration Services (USCIS) is reportedly considering a new regulation that would limit H-1B extensions beyond the usual six-year limit for workers who have started the permanent residence status process. This change focuses on language contained in the American Competitiveness in the 21st Century Act (AC21) that was passed by Congress in 2000 to address backlogs in the immigrant visas based upon country quotas.

As the law is currently interpreted, an H-1B worker who has reached the six-year limit can extend H-1B status if certain provisions are met.

USCIS is considering the reinterpretation of “may grant” language contained in the statute deeming it discretionary rather than mandatory.

This is a departure from a 17-year precedent. The administration has also indicated its plans to end work authorization for spouses of H-1B holders waiting for their visa priority dates to become current. These changes have the greatest impact on tech workers in the U.S. from India, who face years of visa backlogs due to annual country limits on immigrant visas.

Likewise, the immigration community has seen a more restrictive application under North American Free Trade Agreement (NAFTA) of Trade National (TN) status. Most recently, the agency has taken aim at the economist category. Traditionally, the economist category was interpreted to include financial analysts, marketing analysts, and market research analysts who used applied economic principles. USCIS announced on December 18, 2017, that TN status would no longer be granted under the economist category.

Less favorable adjudications have also been seen in the area of intracompany transfers of executives and managers in both the nonimmigrant and immigrant categories. Generally, individuals who were transferred from their companies abroad to the U.S. to perform managerial or executive responsibilities were granted nonimmigrant and immigrant status. In 2017, there was an uptick of requests for evidence and denials of intracompany transfers who have six-figure salaries and manage scores of employees. Even when successfully defended, the issuance of requests for evidence delays transfers of key personnel and increases the costs of sponsorship. Additionally, USCIS is using a more restrictive view of qualifying relationships in joint ventures.

Moreover, USCIS is not adjudicating employment authorization documents in permanent residence applications where requests for evidence are pending.

With the increased number of requests for evidence being issued, this is causing further delays.

In August, USCIS indicated that it would be expanding in-person interviews for employment-based permanent residence applicants under the policy of “extreme vetting.” Previously, employment-based applicants were not routinely interviewed unless there were issues, such as the need to validate identity, legal status, or fraud. All applicants have always been subject to fingerprinting/biometrics and background checks. As the field offices are not getting the additional resources to handle the increase in volume, this is bound to cause backlogs in adjudication.

USCIS is making itself less available to attorneys representing immigrants and to members of Congress. USCIS and immigration lawyers have long enjoyed regular liaison meetings. Although the groups did not always agree, the meetings have been used to disseminate information and bring issues to the government’s attention. Although Ohio still enjoys this communication, an increasing number of field offices are discontinuing this outreach. Likewise, members of Congress are seeing their access to USCIS restricted. USCIS is currently considering requiring an original notarized form for each congressional inquiry into a pending constituent matter.

Without a public debate or a major change in immigration law, this administration has had substantial impact on business immigration, making the process more onerous, expensive, and longer.

--------------------------------

Karen Gabriel Moss is a partner at Nicola, Gudbrandson & Cooper where she practices exclusively in the area of immigration. Moss was named “Immigration Lawyer of the Year” in 2016 by Best Lawyers® and has been consistently selected by her peers in the field.

--------------------------------

Related Articles

There Is Hope after the H-1B Cap: Alternatives to the H-1B Visa


by Meredith W. Barnette

Alternatives and options if the change in H-1B visas applies to you or your business.

H-1B Visa Alternatives for 2018

The Price of Admission


by Janice Zhou

States and the federal government are engaged in a pitched battle over immigration and refugee settlement—with the legal profession caught in the middle, taking fire from both sides.

Immigration Reform in Connecticut

Loophole or Fatal Flaw?


by Joseph Begonis

Canada's Best Lawyers share their thoughts on the Safe Third Country Agreement

What Is the Safe Third Country Agreement?

U.S. Business Immigration: Year-in-Review


by Christian S. Allen

For more reasons than are probably appropriate to include here today, 2017 will be forever be burned into the memories of everybody in the U.S. immigration industry, and all HR and legal professionals who were involved in hiring and/or employing foreign workers in the U.S. No matter your political persuasion, 2017 turned out to not be anything like we all expected at the beginning of the year, fol

U.S. Business Immigration: Year-in-Review

Make the Workforce American Again


by Michael J. Wildes

The H-1B visa program allows U.S. companies to temporarily employ foreign workers in specialty occupations, including jobs in technology, engineering, science, architecture, accounting, and business.

Make the Workforce American Again

Chain Migration Solutions Desperately in Search of a Problem


by Aaron C. Hall

The White House insists that any new law giving Dreamers a permanent place in the United States also stop what it refers to as the chain migration problem.

Chain Migration

Interagency Cooperation: Raising the Bar for Immigration Compliance


by Kathleen Campbell Walker

Stove-piped legal representation is not advisable (e.g., only focusing on one agency segment or one portion of a filing process).

Immigration Compliance

Immigration Worksite Compliance Issues for Employers


by Maria I. Casablanca

Immigration worksite enforcement has become a balancing act between verifying eligibility to work and avoiding discrimination; thus it has merged two fields of law: labor and employment law with immigration and nationality law.

Immigration Worksite Compliance

H-1B Planning for Fiscal Year 2019


by Lisa Koenig

Employers should be prepared to pivot.

H1-B Planning

Trump and Immigration: Separating Truth from Fiction


by Harlan G. York

Deportations aren’t up, but the people who are being deported are more “newsworthy.”

Trump and Immigration

Dilip Patel, 2018 "Lawyer of the Year" for Immigration Law


by Nicole Ortiz

Dilip Patel of Dilip Patel Law Firm was named 2018 "Lawyer of the Year" in Tampa for Immigration Law.

Dilip Patel LOTY

In the News: South Florida


by Compiled by Nicole Ortiz

A summary of newsworthy content from South Florida lawyers and law firms.

South Florida In the News 2018

In the News: Southern California


by Compiled by Nicole Ortiz

A summary of newsworthy content from Southern California lawyers and law firms.

Southern California In the News

Employers Must Soon Use Yet Another New I-9 Form


by Fisher Phillips

New document could be liability trap for unsuspecting employers.

Begin Using the New Form Now

Trending Articles

The Best Lawyers in Spain™ 2023


by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Chile™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms in Chile.

White star in blue box beside white box with red box on bottom

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

The 2023 Best Lawyers in Portugal™


by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

Announcing The Best Lawyers in Peru™ 2023


by Best Lawyers

Honoring our awarded lawyers for 2023 in Peru.

Red and white stripes with green leaf symbol

The Best Lawyers in Spain™ 2022


by Best Lawyers

The results include an elite field of top lawyers and firms.

The Best Lawyers in Spain™ 2022

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Thirteen Years of Excellence


by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

IN PARTNERSHIP

Rewriting 𝙃𝙀𝙍𝙨𝙩𝙤𝙧𝙮 One Verdict at a Time


by Justin Smulison

Athea Trial Lawyers was formed only a year ago by several prestigious lawyers seeking justice for their clients, and together they are making history.

Six female lawyers sitting in office

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Strength in Numbers: When Partnering Up May Be Best in Whistleblower Litigation


by Justin Smulison

Whistleblower claims make headlines when they result in multimillion-dollar settlements. But the journey to the courtroom is characterized by complexity and requires time and resources. Bienert Katzman Littrell Williams partner and The Best Lawyers in America awardee Michael R. Williams discusses when and why partnerships between counsel will strengthen whistleblower litigation.

A Blue Person in the Middle of White People

Announcing the 2022 "Best Law Firms" Rankings


by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards