The Trump administration’s Muslim travel ban and its end of DACA (Deferred Action for Childhood Arrivals) attracted widespread comment and protest. However, the current administration is also conducting a quiet, behind-the-scenes attack on employment-based immigration that is upending settled expectations for many employers across the United States. Affected employers include major tech companies that employ large numbers of visa dependent employees, as well as smaller employers who have just a handful of employees on visas. No matter how prestigious or successful the employer, no employer is immune.
Expectations based on past practice have been shattered as U.S. Citizenship and Immigration Services (USCIS) puts more restrictive adjudication patterns in place, releases memo after memo announcing narrowing policies, and experiences ever-increasing adjudication delays.
Here are some highlights:
- USCIS no longer grants deference to its own past decisions. This means that an employee who is already in the U.S. as a specialty worker (H-1B) or an intracompany transferee (L-1), for example, cannot count on approval of an extension, even if the terms and conditions of employment stay the same.
- USCIS has increased the percentage of H-1B cases that receive requests for evidence (RFEs). In the past, for example, software engineers with degrees in computer science were considered to be specialty occupation professionals. USCIS now questions whether many long accepted occupations qualify as specialty occupations.
- Although the regulations clearly allow entry-level professionals to qualify for H-1B status, USCIS also routinely issues RFEs for such petitions. For example, USCIS has questioned whether an entry-level civil engineer position requires a Bachelor’s degree in a specific field.
- In the past, processing time for a new application for employment authorization took two and a half months. Now processing time may be twice as long, causing hardship for applicants who are entitled to employment authorization but face delays in getting USCIS approval before they can actually start working.
- Numerous reports said that USCIS was considering discontinuing three-year extensions of status for certain individuals who are subject to long wait times for a green card. Some individuals must wait up to 10 years or more for immigrant visa availability, depending on their birth country and type of job. As there is a six-year maximum stay in H-1B status, these employees must rely on extensions to remain in the U.S., where they often have purchased homes, had children, and established ties. One-year extensions would have remained available for these employees, but with increased RFEs and the elimination of deference for prior approvals, employers would face increased risk and expenses to keep their employees in the U.S. while they await green cards. After pushback from the business community, this proposal may be off the table for now.
- The administration has announced that it will issue regulations ending the ability of certain H-4 spouses of H-1 employees to apply for employment authorization. This creates a particular hardship on spouses from India or China, who typically have to wait many years for immigrant visa availability. The H-1 spouse qualifies for visa extensions in many cases, but the H-4 spouse will not be able to work if this regulation is revoked.
- All employment-based green card applicants in the U.S. must now be interviewed by a USCIS officer. USCIS has always had discretion to call in applicants for an interview, and did so in approximately 5 to 10 percent of cases. But now every applicant must be interviewed, adding tens of thousands of interviews to USCIS’ already delayed docket. The interview requirement takes up scarce time of USCIS examiners and delays cases that require an interview (such as marriage-based green cards or naturalization).
- USCIS will now exclude financial analysts, market research analysts, and marketing specialists from the TN (Treaty Nafta) category of economists. This means that many Canadian and Mexican citizens, who are working in the U.S. in one of these occupations with a valid TN economist visa, will not be able to extend their TN stay and might not be able to return to the U.S. after an international trip.
Many of the new restrictions are based on the Buy American Hire American memo that this administration released in March 2017. We can expect increased scrutiny, more denials, and a harsher regulatory climate for employment-based visas while this administration remains in power. Visa petitions are still being approved, but success requires more determination and increased resources to overcome the hostile climate.
Ester Greenfield is of counsel at MacDonald, Hoague & Bayless, in Seattle, Washington, and her practice is limited to immigration law. She represents employers and individuals in business and family immigration cases as well as citizenship matters. She was recognized by Best Lawyers® as “Lawyer of the Year” in immigration law for Seattle for 2013 and 2015.
Eryne Walveka’s practice focuses on immigration law. She assists individuals and companies in securing temporary work visas and employment-based permanent resident status. During law school, Eryne worked as a judicial extern for the Honorable Ricardo S. Martinez in U.S. District Court for the Western District of Washington. She has also assisted individuals with asylum and citizenship claims.