Insight

Where Do We Stand? Predictions on Immigration in 2018 under the Trump Administration

What’s likely to happen within immigration 2018 under the Trump presidency?

Immigration under Trump
MB

Meredith Barnette

January 31, 2018 10:48 AM

The Trump administration made 2017 an interesting year in terms of immigration. So, what’s likely to happen in 2018?

Buy American, Hire American

The effects of President Trump’s Buy American, Hire American (BAHA) Executive Order, issued in April 2017, will continue to be felt. The order directed government departments to propose potential administrative and legislative changes to create higher wages and increased employment for U.S. workers and in order to more strictly police the H-1B visa category. The effect has been to quickly make H-1B adjudications more challenging. Employers and attorneys have seen a dramatic rise in requests for evidence (RFEs)—regardless of the industry. Subsequent to the BAHA issuance, U.S. Citizenship and Immigration Services (USCIS) published a memo that, henceforth, it no longer gives deference to prior approvals of work visa petitions, even if the job duties and employer remain the same. Now, an extension petition is given the same scrutiny as an initial petition, and in some cases, more scrutiny.

Proposed for 2018 are several rules by DHS concerning the H-1B program, including a rule to establish a point system to award H-1B visas to the most-skilled and highest-paid foreign nationals, as well as a system whereby employers apply for an allotment of new H-1B visas each year and thereby have a “pre-registration” for new H-1Bs. Along those same lines, the BAHA directive has prompted DHS to propose discontinuing the H-4 Employment Authorization Document. DHS is also reportedly considering new regulations that would limit eligibility for H-1B extensions past the usual six-year maximum. It’s important to note that the DHS has not yet issued proposed regulations or formal announcements regarding its intention to change its practices in connection with H-1B adjudications. To implement changes, DHS would need to issue a proposed regulation and follow the notice and comment rulemaking procedures set forth in the Administrative Procedure Act.

Enhanced Vetting and Increased Scrutiny

We will see continued enhanced vetting of applications for visas and all other immigration benefits, pursuant to President Trump’s March 2017 order. The executive order called for federal departments to develop “uniform screening and vetting standards” to identify terrorists or people who “present a risk of causing harm.” The order directed the U.S. Departments of State and Homeland Security to implement procedures to “enhance the screening and vetting of applications for visas and all other immigration benefits.”

The effect of this order has been felt at USCIS through stricter adjudication of petitions and applications to change or extend nonimmigrant status in the U.S. This directive has also impacted the adjudication of employment-based green cards; USCIS is now requiring, and will continue to require, all employment-based adjustment of status (green card) applicants to attend an in-person interview at the local USCIS office. This will significantly slow processing times as it will add over 100,000 interviews to field offices’ already overburdened workload.

Whether a direct result of the president’s BAHA order or the March 2017 order to enhance screening and vetting or a combination of the two, employers are seeing a dramatic rise in RFEs. For the H-1B category, these requests generally revolve around evidence qualifying the job and the foreign national. A common request for H-1Bs in 2017 focused on applications that propose a Level 1 or entry-level wage for the job. USCIS announced that the number of RFEs issued between January and August 2017 increased by 44 percent over last year. As a result of these additional requests, processing of all petitions and applications are taking longer.

Enhanced vetting through the Department of State will continue as well. Consular officers must now collect additional information from certain visa applicants (using a new Form DS-5535). Applicants required to complete this form must provide extensive information including 15-year travel, employment, and address history; their social media platforms and identifiers; and all phone numbers and email addresses used over the last five years.

Lastly, the Department of Labor is likely to employ additional scrutiny in 2018 through expected revisions to the Labor Condition Application used in the H-1B process, requiring additional information from employers. In addition, the processing time for PERM applications, the first step of the green card process, have increased since summer 2017.

Compliance

Recently Immigration and Customs Enforcement (ICE) raided almost 100 7-Eleven stores and made approximately 21 arrests in the biggest crackdown under this administration. ICE issued a press release on January 10 on worksite enforcement, detailing a three-pronged strategy: compliance through I-9 inspections, civil fines, and referrals for debarment; enforcement through the arrest of employers and unauthorized workers; and outreach through the ICA Mutual Agreement between Government Employers (IMAGE) program.

President Trump has also promised a “more targeted approach” to H-1B site visits to determine whether H-1B workers are serving in the appropriate position at the appropriate worksite and are receiving the appropriate wage.

DACA

On September 5, 2017, the Trump administration announced it would rescind the Deferred Action for Childhood Arrivals (DACA) program. USCIS immediately halted acceptance of new DACA applications, but the program was not set to officially end until March 5, 2018. Current DACA recipients were allowed to apply for a renewal by October 5, 2017. However, due to a recent court order, USCIS has resumed accepting requests to renew a grant of deferred action under DACA. For now, the DACA policy will be operated on the terms in place before it was rescinded. Congress is still debating legislation to protect the young immigrants that are the subject of DACA.

Be Prepared

Employers who sponsor foreign nationals should prepare for stricter scrutiny and longer adjudications of petitions by USCIS, as well as visa applications by the Department of State when foreign national employees travel abroad. They should be prepared for unannounced site visits by USCIS and must pay close attention to maintaining required immigration compliance documents including, but not limited to, I-9 Forms and H-1B Public Access Files.

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

Meredith W. Barnette has practiced U.S. immigration law since 2006. Ms. Barnette represents employers and employees in a variety of industries, including, but not limited to, manufacturing, information technology, medicine, and academia. She has extensive experience in the preparation of nonimmigrant visa petitions as well as extraordinary ability, outstanding researcher, and multinational executive and manager immigrant petitions.

Email: Meredith.Barnette@garfinkelimmigration.com

Phone: 704.442.8000

Website: www.garfinkelimmigration.com

Facebook: www.facebook.com/GarfinkelImmigrationLawFirm

Twitter: www.twitter.com/GarfinkelLaw


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

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

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

The New Business Immigration Regime


by Christy Nguyen

Five things executives and HR should do.

Business Immigration Regime

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

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

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?

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

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

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

H-1B Planning for Fiscal Year 2019


by Lisa Koenig

Employers should be prepared to pivot.

H1-B Planning

Trends in EB1 Self-Sponsored Extraordinary Ability Permanent Residence Cases for Researchers


by Douglas J. Halpert

Both the “mirror test” and the USCIS regulatory standard impose exacting standards subject to interpretation.

EB1 Self-Sponsored Extraordinary Ability Perm

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

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

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

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

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?

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

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: 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

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

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

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

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

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

Unwrapping Shrinkflation


by Justin Smulison

Through the lens of the United States, we take a closer look at the global implication of companies downsizing products while maintaining and often raising prices.

Chocolate bar being unwrapped from foil