The Trump Administration has been very, very busy addressing business immigration in the last year. Three overriding themes are: 1) a slowdown in processing times in most categories and 2) increased Requests for Evidence (RFEs) in just about every immigration category and 3) a tightening of definitions by adjudication or policy memo.  Receiving an RFE doesn’t necessarily mean a case will be denied, but there are more denials out there. Despite all the talk about needing “merit based” immigration, the Trump Administration’s main goal is less legal immigration altogether, no matter how highly qualified a person is.  This is reflected in its “Buy American Hire American” Executive Order, even though the President and his family continue to use foreign workers for their own businesses.

Highlights from business immigration changes in the last year include:

• Lots of H-1B RFEs are being issued about wage levels and whether a job is truly a specialty occupation, which is the crux of the H-1B program.
• USCIS issued a policy memo eliminating deference to prior approvals when seeking an extension of stay. In other words, every application must be supported with all the evidence of eligibility despite prior approvals, as if it were a new case beginning from scratch. More cases are being decided on the basis of USCIS having made a prior “error” in approval.
• Employment based green card applicants must all be interviewed. This is having a massive impact on processing times for family based adjustment of status and naturalization cases. As a result, processing times are getting closer to consular processing times. Here is in Seattle, those interviews are taking 10-12 months and are expected to take longer from date of filing.
• Traveling even with a valid H or L visa but while an advance parole application is pending will cause the advance parole to be abandoned. In other words, wait until advance parole is granted before traveling. This is based on a USCIS -AILA national liaison meeting minutes.
• DHS may issue new EB-5 regulations around February increasing the minimum investment amount and changing other features of the program such as who would designate the TEA or geographic zones where the lesser investment amounts can be used. At the same time, there are different legislative packages pending in Congress that would address the January 2018 sunsetting of the EB-5s that are attached to budget related bills and whether the government shuts down.
• The Trump Administration was found by a court to have violated the Administrative Procedures Act (APA) when it cancelled the International Entrepreneur Parole regulation that was to go into effect in July 2017. National Capital Venture Association v. DHS. Thus, the window is open now to apply. However, a new set of regulations will be issued to revoke the program. Once those are published, there will be a notice and comment period. Who would like to be a guinea pig and try this program out while the window is open?
• The President’s Executive Order on “Buy American Hire American” is having an effect on consular processing. The US Embassy in London, among others, has gone amok denying even créme de la créme O and P visas (the people with the most merit based immigration credentials), among others. Consular processing is generally more difficult as are other categories of immigration. It’s all about being prepared and filing good, well-documented cases, having backup plans, and advocacy to keep officers in line with the law.
• USCIS issued a memo on the differences between “economists” and “market research analysts” and “marketing specialists” for TN purposes. (Only economists are on the NAFTA professional occupation list.) The focus is on the job duties, not the title, as is always the case in business immigration visas.
• USCIS issued a memo on “computer programmers” for H-1B purposes. It states that not all computer programmers are working in a specialty occupation because some can have a two-year degree or less experience. Therefore the petitioner has a higher burden to prove the position is truly a specialty occupation.
• USCIS adopted an AAO decision regarding physicians (MD and OD) of “national or international renown” who must be widely acclaimed and highly honored in the field of medicine within one or more countries, so long as the achievements leading to national renown are comparable to that which would result in national renown in the United States. The decision also suggests, but does not mandate, what types of evidence may be persuasive in establishing eligibility for this exemption.
• USCIS adopted another AAO decision as policy from a case involving an L-1B applicant (multinational transferee) whose pay was evaluated. The case and policy memo clarifies that USCIS cannot approve a visa petition that is based on an illegal or otherwise invalid employment agreement. To prevent a potential conflict with the Fair Labor Standards Act, USCIS must ensure that a beneficiary will not be paid a wage that is less than the minimum required wage under state or Federal law, whichever is higher, before approving an employment-based visa petition.
• USCIS adopted yet another AAO case as policy involving notice to employees who port to a new job based on a previously approved I-140 and pending I-485. Sometimes USCIS seeks to revoke a previously approved I-140 upon which the employee relied to port to a new job. The new policy now requires notice to the employee so he/she can participate in any litigation concerning that petition revocation.
• USCIS removed Haitians from the list of countries that can use the H2B program (that the President uses for his winery and Mar-a-Largo). We know how he feels about Haitians.

Current and Upcoming Business Immigration Issues for 2018

• H-1B cap season is approaching with filings due the first week of April 2018. This is the time now to solidify new hires and get those employees evaluated for eligibility and applications started. Once again, there will be a lottery and selected cases will be eligible to work starting October 1, 2018 assuming no RFE received that delays the case. Many of last year’s selected cap cases received RFEs, delaying start dates later into 2017 and 2018.  On the wage issue, expect more time and effort devoted to justifying level 1 wages (or spend that money on your employee’s wage rather than on legal fees). Most wage surveys have at least four wage levels per occupation. As a reminder, when you hear about the H-1B program being used to pay low wages, that is a misstatement of the law. The employer must pay the GREATER of the wages paid to US workers doing the same or similar job, OR the prevailing wage, whichever wage is HIGHER. (I previously recorded a Facebook Live video about preparing for the H-1B program that explains this and other H-1B issues in more detail.)   In addition, a new rule may be proposed this year to require electronic registration of H-1B applicants. Another proposed rule would change the definition of “specialty occupation,” address wages, and further define the required employer-employee relationships.  None of these proposed rules have come out yet!
• A forthcoming regulation would withdraw the H-4 work authorization for certain spouses of H-1B workers. While meant to prevent more foreign workers from starting businesses that hire US workers (because foreign workers steal Americans’ jobs), this regulation would surely cut down on the total number of H-1B workers accepting jobs because it makes the US a less attractive place to work if their educated and experienced spouses cannot also work. (Of course, that’s the Administration’s goal) Great idea!   There is a parallel lawsuit against the H-4 work regulation currently on hold.
• In the space of a week this month, there were suggestions that DHS would revoke the AC21 H-1B post six-year extensions to encourage mostly Indians to “self-deport” while waiting for their green card cases stuck in quota. But, after an uproar from the tech industry, the government backed off…for now.
• On the regulatory agenda is a proposal to create a rebuttable presumption AGAINST exceptional hardship and no-objections to the J-1 two-year foreign residence waivers. This proposed rule may come out in March approximately.
• Another rule that may come out would tinker with F-1 and M-1 student work opportunities.
• Finally, ICE is gearing up for more employer raids and audits. On January 10, ICE raided over 100 7Elevens. Although it was part of a criminal investigation, employers need to know it’s been the law since 1986 that they need to document the work permission status of every employee hired, including US citizens, by completing form I-9. Employers should be familiar with I-9 Central because I-9 audits and raids will continue.  UPDATE: On February 2, 2018, ICE produced I-9 audit notices on 77 businesses in Northern California. Keep in mind, ICE notices to inspect only allow three days to produce I-9 forms! Therefore, employers should make sure they are following the law now.