Insight

The President’s Quiet Attacks on Lawful Employment-Based Immigration

The president cannot unilaterally change immigration laws and regulations currently in place.

Employment-Based Immigration
Michael P. Nowlan

Michael P. Nowlan

January 10, 2018 01:05 PM

There has been no shortage of news articles in 2017 when it comes to the president’s administration and U.S. immigration. This includes reducing the number of refugees who will be admitted each year, ending the DACA program, and a host of travel bans. But there has been a lot of activity in the business immigration space. It has not been as newsworthy—so far—but has mostly impacted processes that the executive branch has the power to control.

The president cannot unilaterally change immigration laws and regulations currently in place.

Laws take congressional action, and that appears unlikely through 2018. Regulations require following the Administrative Procedures Act, and the notoriously slow notice and comment period to establish, change, or eliminate a regulation.

Below are a few of the more noteworthy process changes we have seen in 2017.

In-person interviews for 85 percent of the 140,000 employment-based green cards approved every year (15 percent are done at U.S. Consulates outside the U.S.).

For decades, only those with a criminal issue have been required to have an in person interview. There are a little over 85 U.S. Citizenship and Immigration Services (USCIS) offices around the U.S., and now these offices must perform time-consuming interviews of every employee, their spouse, and any children. USCIS has confirmed that to comply with this new requirement, family-based green card interviews primarily for spouses/family of a U.S. citizen, and naturalization interviews for persons who want to be U.S. citizens will be given a lower priority. The 140,000 employment-based green cards must be approved every year, or they disappear. Requiring interviews for a population that has never been involved in an act of terrorism in the U.S. seems very hard to justify.

New requests for evidence (RFEs) for H-1B applications.

USCIS reports have confirmed that H-1B RFEs have jumped from 20 percent to over 30 percent for 2017. These result in more delays in a time of heightened employer/employee compliance.

More I-9 Employment Eligibility Verification Form audits for U.S. employers.

This is not surprising, as I-9 audits have gone up with each president since George W. Bush. While these audits do not ensure undocumented workers are discovered and removed from the U.S., it does go a long way to help fund the U.S. Immigration and Customs Enforcement’s (ICE) operations, as fines quickly add up for simple paperwork violations for employers with no undocumented workers.

Hostility toward employment authorization documents, also called EAD cards.

Foreign national F-1 university students who have studied in a science, technology, engineering, or math field (STEM) can qualify for an EAD card for two years. The origins of this STEM EAD rule came into effect under President George W. Bush. Also, spouses of H-1B workers (H-4s), where the H-1B worker has completed several steps in the employment-based green card process, can apply for an EAD card. F-1 STEM and H-4 EAD workers are regulations the administration plans to repeal in 2018. Finally, timing for EAD card production is now well over four months.

Advance parole denials for persons who travel internationally when they file an employment-based green card.

Persons in H-1B or L-1 status have been allowed to travel without an advance parole when they file the last stage of the green card process. All other foreign nationals must wait four or more months for the advance parole to be approved before they may travel internationally. The denials of the advance paroles, for H and L visa holders who travel internationally, rarely have a substantive impact on a person’s application, but are a further irritation.

Lastly, reports abound regarding how the administration plans to change the H-1B rules, which on the whole, require a new law and/or regulation.

All of these actions have added a new level of insecurity to an already nervous population. Is this actually accomplishing anything other than just slowing processes down for persons who are doing everything they can to follow the rules? I have no doubt that change to the processes for those legally present in the U.S. will continue in 2018. What I do hope is that those whose technical and entrepreneurial skill set is in demand globally will not end up finding a path of less resistance in a different country that is more welcoming in their immigration processes.

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

Michael P. Nowlan is a member and immigration practice group co-leader with Clark Hill PLC in Detroit. He is a graduate of Eastern Michigan University and a graduate of the University of Detroit Mercy School of Law. He has served as member of the AILA Future of Immigration Law Practice Task Force (2016–2017); a member of the AILA Business Committee (2015–2016); chair of the AILA Business Committee (2011–2015); and vice chair of the AILA Nebraska Service Center Liaison Committee (2010–2011).

Related Articles

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

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

WATCH: Supreme Court Rules DACA Stays


by Best Lawyers

Three immigration law attorneys join the CEO of Best Lawyers to discuss the Supreme Court's decision to block the Trump administration's effort to stop the DACA program.

Panel: DACA SCOTUS Ruling

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?

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: Southern California


by Compiled by Nicole Ortiz

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

Southern California In the News

Trending Articles

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation


by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez


by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing The Best Lawyers in The United Kingdom™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023

Announcing The Best Lawyers in France™ 2023


by Best Lawyers

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

Blue, white and red strips

Announcing The Best Lawyers in Germany™ 2023


by Best Lawyers

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

Black, red and yellow stripes

Education by Trial: Cultivating Legal Expertise in the Courtroom


by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

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 Best Lawyers in Belgium™ 2023


by Best Lawyers

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

Black, yellow and red stripes

Announcing the 2022 Best Lawyers™ in France


by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in France

We Are Women, We Are Fearless


by Deborah S. Chang and Justin Smulison

Athea Trial Lawyers is a female owned and operated law firm specializing in civil litigation, catastrophic energy, wrongful death and product liability.

Athea Trial Law Female Leadership and Success

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

What If Johnny Depp and Amber Heard Had a Premarital Agreement?


by John M. Goralka

Oh, the gritty details we’re learning from the latest court battle between Johnny Depp and Amber Heard. This unfortunate airing of dirty laundry may have been avoided with a prenup. Should you think about getting one yourself?

What If Johnny Depp & Amber Heard Had Prenup?

Announcing the 2022 Best Lawyers™ in Germany


by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in Germany

U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules


by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

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?

Destiny Fulfilled


by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright