Insight

Employment-based U.S. Immigration

A look back at 2017 and what to expect in 2018.

Employment-based U.S. Immigration
MP

Matthew T. Phillips

February 12, 2018 10:54 AM

To little surprise, the past calendar year, which coincided with the first full year of President Trump’s new administration, brought significant change to employment-based U.S. immigration. In this article, we will briefly review some of the changes that employers and employees have seen in 2017 and provide some thoughts as to what to expect in 2018.

First, the administration announced the termination of the Deferred Action for Childhood Arrivals program, known as DACA, this past September. DACA provided an avenue for foreign nationals who were brought without authorization to the United States as children, provided that certain other requirements were met, to obtain the temporary right to live and work in the United States. The final round of DACA renewals were required to be submitted on October 5, 2017, and no further extensions are to be granted. Barring some change in these developments, employees who gained work authorization through DACA will be left unable to extend their most recent work authorization beyond its current expiration date. As a result, and in order to avoid unauthorized employment, employers must continue to carefully monitor employment expiration dates for DACA participants, as they would with all employees.

Second, there are a handful of temporary/nonimmigrant employment visas available in the United States. One of these is the H-1B specialty occupation visa. Because demand for this visa category exceeds the available supply of visas (20,000 visas for those with U.S. earned Master’s degrees or above, and 65,000 “regular” Bachelor’s level visas, regardless of where the degree was gained), an annual lottery for these visas is held each April. In addition to these limited numbers, this past year was marked by a significant increase in what are known as Requests for Evidence (RFEs) in which the United States Citizenship and Immigration Services (USCIS) requests additional evidence regarding applications.

Specifically, the number of RFEs from January 1, 2017, through August 31, 2017, jumped almost 45 percent over the prior year. As a result, it is also expected that the corresponding H-1B approval rate will drop.

It remains to be seen what impact, if any, this change in processing by USCIS will have on the upcoming H-1B lottery to be held this April 2018.

In addition to the above, the Department of Homeland Security announced changes to the Temporary Protected Status program (TPS). TPS provides a time limited approval for nationals of certain countries beset by calamities, such as natural disasters or political unrest, to remain in the United States and work on a temporary basis. The list of TPS countries is reviewed periodically. This year, the administration announced that it would be terminating TPS for nationals of Haiti, Nicaragua, and El Salvador. As a result, employees of those countries working in the United States under TPS authorization may have either already lost their employment authorization in the U.S. or may lose it shortly.

A series of high-profile legal battles were fought over travel bans to the United States. The Trump administration proposed no less than three separate bans, which were each the subject of litigation, through which numerous parties, including several states, sought to invalidate the bans. Most recently, portions of one ban have been upheld by the Supreme Court, under which the administration sought to limit admissions for nationals of countries including, but not limited to, Iran, Libya, Syria, Yemen, Somalia, Chad, and North Korea. Employers, particularly those involved with business travel from the included countries, should continue to update themselves regarding the status of these travel bans.

In addition to these changes from 2017, which are of course expected to continue to impact U.S. immigration into 2018, there are a number of proposals that could result in significant changes to employment-based U.S. immigration for 2018. First, it is anticipated that the administration may seek to limit certain forms of temporary work authorization. For example, spouses of H-1B visa holders, who hold H-4 visa status, and where the H-1B visa holder is also the recipient of an immigrant visa petition/I-140 approval have been able to obtain temporary work authorization in the form of an Employment Authorization Document (EAD). It is anticipated that the administration may seek to rescind the H-4 EAD, which would result in the loss of employment authorization to employees currently working under that status. As a result, it will be prudent for employers and employees to speak with qualified counsel to consider what visa options might be available to the H-4 EAD holder.

Foreign students in the United States who have graduated from a university in F-1 visa status are eligible to receive a 12-month employment authorization through Optional Practical Training following the completion of their Bachelor degree, with the potential of an additional 24-month extension if their degree is on an approved list of STEM (science, technology, engineering, and mathematics) fields. The administration may seek to limit the 24-month STEM extension, and, potentially, the 12-month OPT extension that precedes it. As a result, employers with employees in this visa status should consider other employment-based options that are available to these employees, including, and in particular, the H-1B visa lottery that will be held in April 2018.

Lastly, certain H-1B visa holders who have obtained approval on an employment-based immigrant visa petition have been eligible to obtain what is known as the seventh year extension, or extensions beyond the two- or three-year terms, that are typically available to the H-1B visa holder. It is believed that the administration may seek to limit the ability of H-1B visa holders to obtain extensions beyond their first six years of H-1B visa status. To avoid this possibility, employers should consider whether to file for an H-1B extension while it is still available and whether to sponsor their foreign national employees for permanent resident status in the United States, also known as the green card, as early as possible.

It is important to note that all the changes outlined above—the ones that actually took place in 2017 and the ones that may take place in 2018—have been and are expected to be made not through the legislative process, but rather by through executive actions of the administration, either through a reinterpretation of existing law at the agency level or through the exercise of executive orders under the authority of the president. As we’ve seen, even where changes are made without the involvement of Congress, such executive action can be challenged in the courts. However, and while such further challenges can be expected, it would be prudent for employers and their foreign national employees to consider taking proactive steps to avoid the impact of any such additional changes in the future.

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

Matthew T. Phillips has been practicing immigration law for over 20 years at Cohen & Grigsby, P.C., has been selected by his peers for inclusion in The Best Lawyers in America© for the last 10 consecutive years, and has been recognized by his peers as the 2018 Pittsburgh immigration law “Lawyer of the Year.” His practice focuses on employment-based immigration, including global/outbound immigration, family-based immigration, naturalization, and exclusion/deportation defense.

Related Articles

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

Smart Policy and Smart Compassion


by David P. Berry

Why it makes sense to protect the Dreamers.

Dreamers

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

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

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

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?

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

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

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

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

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

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 Best Lawyers in South Africa™ 2023


by Best Lawyers

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

South African flag

Could Reign Supreme End with the Queen?


by Sara Collin

Canada is revisiting the notion of abolishing the monarchy after Queen Elizabeth II’s passing, but many Canadians and lawmakers are questioning if Canada could, should and would follow through.

Teacup on saucer over image of Queen's eye

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

2022: Another Banner Year


by John Fields

Block O’Toole & Murphy continues to secure some of New York’s highest results for personal injury matters.

Three men in business suits standing in office

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

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

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?

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

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

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

Caffeine Overload and DUI Tests


by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

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 Australia™ 2023


by Best Lawyers

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

The Best Lawyers in Australia™ 2023

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