The Stealth Assault on Employment-Based Immigration

The Trump administration’s Muslim travel ban and its end of DACA (Deferred Action for Childhood Arrivals) attracted widespread comment and protest.

Employment-Based Immigration
Ester Greenfield

Ester Greenfield

February 7, 2018 09:43 AM

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.

Related Articles

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?

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

H-1B Applications: Proactive Steps in 2018

by Brad J. Hendrick

Last year, USCIS received approximately 199,000 applications for the 85,000 H-1B visas allocated each year.

H-1B Applications

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

Trump Administration’s Termination of DACA, TPS, and H-4 EAD Immigration Programs Could Leave Employers in a Lurch

by Ann Massey Badmus

Several immigration programs that have authorized over a million immigrant workers are expected to end in 2018 and 2019.

DACA, TPS, and H-4 EAD

The Trump Administration’s Attack on Legal Immigration

by Bennett R. Savitz

The adjudication strategy achieved the change the Trump administration wanted to make to the H-1B program without having to amend the regulations.

Legal Immigration – Trump

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

Smart Policy and Smart Compassion

by David P. Berry

Why it makes sense to protect the Dreamers.


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

The Global Employer: Strategies and Best Practices for an International Workforce

by Garfinkel Immigration Law Firm

Developing and retaining an international workforce is essential to competing in the global marketplace.

Global Employer Best Practices

Trending Articles

How Palworld Is Testing the Limits of Nintendo’s Legal Power

by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

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 U.S. Best Lawyers Voting Season Is Open

by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

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

How To Find A Pro Bono Lawyer

by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

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?

2021 Best Lawyers: The Global Issue

by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

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

The Upcycle Conundrum

by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Best Lawyers Voting Is Now Open

by Best Lawyers

Voting has begun in several countries across the globe, including the United States, the United Kingdom and Europe. Below we offer dates, details and answers to voting-related questions to assist with the voting process.

Hands holding smartphone with five stars above phone

Inflation Escalation

by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards

by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

Presenting the 2024 Best Lawyers Family Law Legal Guide

by Best Lawyers

The 2024 Best Lawyers Family Law Legal Guide is now live and includes recognitions for all Best Lawyers family law awards. Read below and explore the legal guide.

Man entering home and hugging two children in doorway

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