RAISE Act

On August 2, 2017, Senators Tom Cotton and Sonny Perdue introduced the Reforming American Immigration for a Strong Economy (RAISE) Act. While the bill is not currently expected to be passed by Congress, it is worth noting that the administration’s support of the proposal signals potential drastic changes for employment-sponsored immigration.

The RAISE Act would result in a significant reduction in the level of legal immigration through the elimination of the Diversity Visa Lottery Program, the elimination of some family-based categories, and an annual quota of 50,000 refugees eligible to become permanent residents.

The current U.S. employment-based immigration system allows employers to select the workers they need, subject to U.S. laws and regulations. The RAISE Act replaces this demand-driven model with a point-based system utilizing a combination of factors, including age, education, English language proficiency, extraordinary achievement, job offer with high paying wage, and intent to invest in the U.S. The proposed change would favor younger (25–30 year old) adults, individuals with STEM degrees, and high-wage earners.

To be eligible for a green card, applicants would be required to reach a 30-point threshold (out of a possible 102 points). Applicants would be able to apply two times per year to the U.S. Citizenship and Immigration Services (USCIS). USCIS would invite candidates with the highest scores to file full applications and undergo security vetting. If the applicant is not selected after one year, s/he would have to apply for readmission.

The RAISE Act has been criticized for neglecting to address low-wage immigrants who serve vital roles in the “essential economy,” namely the food service and hospitality industries, construction, agriculture, elder care, and manufacturing.

Policy Shifts, Extreme Vetting, and “Buy American, Hire American”

President Trump has issued several executive orders regarding immigration. The executive order signed in March 2017 implemented a modified version of the travel ban; it also 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.”  

This mandate has resulted in stricter adjudication of petitions and applications to change or extend status in the U.S. It has also impacted the adjudication of employment-based green cards; USCIS recently announced that beginning on October 1, Foreign Nationals changing from an employment-based temporary visa to a permanent one (a “green card”) will be required to attend an in-person interview. This will significantly slow processing times as it will add over 100,000 interviews to field offices’ already overburdened workload.

This mandate also impacted visa issuance abroad. The U.S. Department of State has directed consular officers to collect additional information from certain visa applicants (using the new Form DS-5535). Applicants required to complete this form must provide extensive information including 15-year travel, employment, address history, their social media platforms and identifiers, and all phone numbers and email addresses used over the last five years.

President Trump has made multiple comments detailing his disdain of the H-1B program. On April 18, 2017, he issued the “Buy American, Hire American” executive order that, in part, ordered the departments of commerce, labor, homeland security, and state to strictly police the program. His order also proposed substantive changes, such as awarding H-1B visas to guest workers with the best skills and highest potential wages; such changes would require cooperation from Congress.

While no formal policy change has been announced by U.S. Citizenship and Immigration Services, employers are currently experiencing a dramatic rise in Requests for Evidence for H-1B Petitions across all industries.

Plan Ahead

Employers must be vigilant in maintaining required immigration compliance documents including, but not limited to, I-9 Forms and H-1B Public Access Files. Each employer who has sponsored a foreign national should prepare for unannounced site visits by USCIS. Prudent employers will inform their receptionist or security officer of this likelihood and prepare a designated list of responders within the company to handle these visits.

Employers should prepare contingency plans for anticipated delays in adjudications of petitions by USCIS and visa applications by Department of State when foreign national employees travel abroad. These plans should include managing internal workloads and implementing the company’s leave policy.

Finally, a close working relationship with immigration counsel is essential to ensure a current, flexible immigration strategy and legal compliance in a constantly shifting environment.

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Garfinkel Immigration Law Firm is one of the largest immigration practice groups in the Carolinas. Whether clients need assistance with work visas, complex family-based visa petitions and/or waivers, EB-5 or E-2 investor issues, I-9 compliance, global visas, or other immigration law concerns, we have the in-depth experience required.

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