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US Immigration under the Trump Administration: What We Know and What We Think We Know

After months of discussions on immigration issues, promises of sweeping reform and rumors about what reform would entail, President Donald J. Trump recently issued an Executive Order, followed by a proposed bill and other guidance, which would drastically change the current immigration system. The following summary highlights some of the proposed changes, actual changes and rumors which may or may not be based on fact.

Buy American, Hire American

The Buy American, Hire American Executive Order, signed by President Trump on April 18, 2017, promises a commitment to protect jobs for US workers, create higher wages and increase job opportunities and employment rates. The Executive Order broadly demonstrates an intent to vigorously enforce immigration laws, taking particular aim at the H-1B visa program.

The H-1B specialty occupation visa is available to those who hold at least a bachelor’s degree and who will work for US companies in positions which require the specific degree. Under the current H-1B visa program, 65,000 visas are available each fiscal year, with an additional 20,000 visas reserved for graduates of US master’s programs or higher. A “specialty occupation” is loosely defined as one which requires at least a bachelor’s degree based on education or a combination of education plus experience. Due to high demand for H-1B visas, over the past few years petitions have been selected by US Citizenship & Immigration Service (USCIS) for adjudication through a random lottery. The number of petitions submitted has been almost three times the number of available visas, leaving both employers and visa candidates disappointed. While there has been criticism that the current H-1B program may allow foreign workers to take coveted jobs from US workers, many employers feel the H-1B program is not generous enough to allow them to fill open positions.

While the Executive Order does not specify how the H-1B visa program will change, rumors have abounded. There have been discussions of limiting H-1B visas to those with both higher education and significant experience, as well as requiring that a position offered to an H-1B applicant must pay a minimum salary in the area of $120,000 or more. Filing fees for H-1B visa petitions may also be raised. Though currently there are no formal changes to the program, practitioners are seeing increased scrutiny of pending H-1B visa petitions. In particular, H-1B visa petitions filed for entry-level positions and/or lower paying positions are receiving requests for evidence, asking petitioning employers to explain how such positions qualify as a “specialty occupation.” The definition of specialty occupation in current regulations does not include a review of the level of position or the salary offered, provided that the salary meets at least the “prevailing wage” which can be determined in a number of ways. Though the increased scrutiny is under fire by immigration law groups and some business organizations because it is considered rule-making without an actual rule, the current trend does provide a glimpse into what a future H-1B visa program could require.

RAISE Act

The Reforming American Immigration for Strong Employment Act (S. 354), known as the RAISE Act, was introduced by President Trump, Senator Tom Cotton (R-AR) and Senator David Perdue (R-GA) on August 2, 2017. The RAISE Act would make the kind of sweeping immigration reforms that have been promised by the Trump administration. Not only would the RAISE Act decrease the number of immigrant visa to 140,000, half the current number allowable each fiscal year, but it would move the process to a point system. The Diversity Visa Lottery, a true lottery offering a limited number of immigrant visas each fiscal year to those from certain countries, would no longer exist.

Under the present immigrant visa system, visas are allotted in one tier based on family relationships and in another tier based on employment offers. Employers can petition for immigrant visas on behalf of individuals they have selected to fill a need within their businesses. The process is rigorous and involves scrutiny and evaluation by both the USDepartment of Labor and USCIS. Point systems are a part of legal immigration in Canada, the UK, Australia and New Zealand. Under the RAISE Act, individuals would qualify for immigrant visas based on points assigned for a number of factors including age, education, English language proficiency, job offer, extraordinary achievement and intent to invest in the US. The job offer awards points based on salary, using the median household income as a measuring stick.

Notably, under the RAISE Act, family-based immigration would all but disappear, allowing US citizens and legal permanent residents to petition only for spouses and minor children under age 18. Under the present system, a US citizen can petition for a parent or sibling and US citizen parents can petition for adult children age 21 and over. These categories would not exist under the RAISE Act.

Similar points systems were proposed in the US in 2007 and in 2013. Criticism of both systems is applicable to the RAISE Act in that the RAISE Act does not favor family unity, limiting the rights of US citizens by prohibiting them from applying for immediate family members. Moreover, the RAISE Act favors highly educated and skilled workers over less-skilled workers and disadvantages middle aged and older people. Under the RAISE Act many much needed lesser skilled jobs in agriculture, childcare, food and beverage, elder care, manufacturing and construction would suffer.

Entrepreneur Rule Delayed

The Obama administration supported a new visa program known as the International Entrepreneurs Rule (IER), commonly referred to as the “entrepreneur visa” or “startup visa.” The IER is very popular with and supported by many Silicon Valley and other tech innovators in the US as a step toward ensuring that the US can continue to compete with the tech industry in China and Europe.

Proposed more than a year ago, and based on another program several years in the making, the goal of the IER is to facilitate US entry for entrepreneurs who want to invest their talents in the US. The rule would require applicants to have a track record, funding of at least $250,000, a business plan and a substantial interest in a business which was established less than five years ago. The business must also be of a “public benefit” to the US. Applicants who meet the above criteria will be issued parole status to work in the US. Parole status avoids some of the lengthy processing and documentation required of nonimmigrant visas, offering a more generous option for those who do not want to be tied to a particular company.

The IER was to have been implemented earlier this year. While official word is that the launch has merely been delayed until March 2018, there has also been discussion that it may be totally eliminated.

Increased Scrutiny of Visa Petitions and Travelers upon Entry to the US

Pending H-1B visa petitions are not the only visa petitions which are receiving additional scrutiny by USCIS. Employers and immigration practitioners are reporting an increase in the number of Requests for Evidence (RFE) issued by USCIS in a wide variety of petitions including nonimmigrant L-1 visas, as well as immigrant visa petitions based on the multinational executive/managerial category, extraordinary ability and other employment-based petitions. Again, this level of scrutiny may be aimed at what the new administration views as the direction in which immigration should go in the future.

In a related development, on August 28, 2017, USCIS announced that it would begin scheduling in-person interviews for certain individuals applying for adjustment of status to permanent residence in the US (“green card” applicants). Notably, those who are applying under employment-based petitions will be scheduled for interviews. With an effective date of October 1, 2017, the move to interview is a reversal of a long-standing USCIS policy waiving interviews for most applicants filing for green cards through employers. At this point it is unclear whether those with pending applications will be scheduled for interviews or this will only impact those who file on or after October 1, 2017. What does seem clear is that without a significant increase in resources at USCIS, the wait for interviews, and therefore the wait to complete the green card process, will become increasingly long.

Perhaps most troubling are the reports received about travelers being extensively questioned upon entry or reentry to the US, including those who have been legal permanent residents for many years. Some of the conduct by US Customs & Border Protection (USCBP) officers has been deemed abusive, resulting in complaints being lodged against USCBP. While traditionally visitors have been questioned upon entry to the US to ensure an intent only to visit, some holding valid nonimmigrant work visas are being detained upon reentry to the US, even if they have never had a problem in the past. There have also been reports of those with valid visas being denied reentry to the US. In addition, some legal permanent residents are being pressured to give up their resident status, based on USCBP officers’ opinions that the residents are spending too much time abroad and therefore do not truly intend to reside in the US permanently, as required. Travelers with nonimmigrant work visas are cautioned to come prepared with a current job letter or contact information for their employers in case questions are raised. Legal permanent residents should be prepared to answer questions about their intent to remain in the US. While questioning by a USCBP officer can be intimidating, travelers do have a right to speak with a supervisor if an officer appears to be acting inappropriately.

Deferred Action for Childhood Arrival Program Terminated

On September 5, 2017, the Trump Administration announced that the Deferred Action for Childhood Arrival Program (DACA) would be terminated in six (6) months. Created by an Executive Order in 2012, DACA has enabled approximately 800,000 otherwise undocumented individuals who were brought to the US as children to be protected from deportation and obtain work authorization. At the present time there is no indication of how current DACA recipients will be handled once the program has been terminated, raising fears of mass deportations. Many employers and employment groups have expressed disappointment about this new development based on their employment of DACA individuals. In particular, the health care and hospitality industries expect to be widely impacted by the DACA termination. Businesses are now in a position of considering how to fill positions once their DACA employees are no longer employable.

Will Visa Status under the NAFTA Survive?

While the future of the North American Free Trade Agreement (NAFTA) clearly has a great impact on a number of areas, there is a concern about the future of visa categories specifically created by the NAFTA. Citizens of Canada and Mexico may be eligible for nonimmigrant NAFTA Professional (TN) status to work in the US if they will be filling certain positions listed on the NAFTA. These positions include engineers, accountants, nurses, scientists and many other job categories. A TN applicant must have a specific job offer in a listed job category and must have the qualifications outlined in the NAFTA for the particular job. TN status has been a good option for many employers and employees because it can be done very quickly and efficiently at a much lower cost than many of the other visa categories. If NAFTA no longer exists, the TN category will clearly disappear, however there is some thought that even if the NAFTA is revamped in some way, the TN visa may no longer be an option.

Conclusion

Though there is no certain path to reforming US immigration, it is safe to assume that changes will be made in both current law and policy. Employers should be prepared for changes in hiring and may want to consider applying for immigrant status for key employees at this time. Travelers also are cautioned to be prepared to answer questions upon entry to the US. 

© 2017 McDermott Will & Emery

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About this Author

Joan-Elisse Carpentier, Immigration Attorney, McDermott Will & Emery Law Firm
Partner

Joan-Elisse Carpentier is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm's New York office. She focuses her practice in all areas of immigration and nationality law affecting corporations and other businesses.

Joan-Elisse's work includes evaluations of immigration practices of corporations, development of corporate policies and procedures for handling immigration matters and obtaining immigrant and non-immigrant visas as well as citizenship.  She also works on behalf of United States citizens and foreign...

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