12.19.18

There have been many immigration policy changes in 2018 that affect employers directly or indirectly. Most importantly, there has been a significant shift to a more restrictive immigration philosophy that has affected the ways that the law is administered, adjudicated, and enforced. This bulletin will summarize the key changes, several of which have been addressed in more detail in prior bulletins.

Policy changes that directly affect employers who seek to obtain work visas for foreign workers

Interpretation of H-1B “specialty occupation” and effect of Level 1 wages. There has been a significant increase in Requests for Evidence regarding employer non-immigrant petitions. Two items that have been focused on by the U.S. Citizenship and Immigration Services concern H-1B petitions. These petitions are used with workers with U.S. (or foreign equivalent) Bachelor’s or higher degrees who are to be employed in a “specialty occupation.”

The Immigration and Nationality Act defines “specialty occupation” to be one requiring the theoretical and practical application of a body of highly specialized knowledge and the individual’s attainment of at least a Bachelor’s Degree in a specific specialty or its equivalent. The USCIS has been narrowly interpreting this language, making it more difficult to meet the standard in occupations that do not require a specific field of study or its equivalent. The USCIS has also questioned whether, if the H-1B worker is paid at Level 1 wages, the duties in the position meet the standard for a professional, specialty occupation.

More summary denials of petitions and applications. As we have previously reported, the USCIS issued a Guidance that will make it easier for the government to summarily deny petitions and applications. The Guidance, which took effect September 11, will allow adjudicators “to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility.” The intent is to give adjudicators more discretion to deny a petition or application without requesting more information first. This new Guidance appears consistent with the agency’s more recent stringent standards for approval of petitions and applications.

Increased suspension of H-1B premium processing. The USCIS has suspended the use of premium processing for H-1B Petitions for a longer period of time and for more petitions than in the past. For many years, the USCIS has suspended the use of premium processing for the April “cap” filings, and that occurred this year. The 2018 suspension was expected to end on September 11, but the suspension was extended until February 19, 2019, and has been broadened to include most H-1B petitions. The inability of employers to file via premium processing has delayed the date of hire for H-1B workers because applicants are generally unwilling to start work (allowed on filing under H-1B portability) until the H-1B petition has been approved. We hope that the suspension will not be extended beyond its current extended date.

Interviews for all “green card” applicants. Interviews of all applicants for employment-based “green cards” began in full force in 2018, based on a policy change that became effective October 1, 2017. In the past, only problem cases required an interview.

Changes to method of selecting H-1B “cap” petitions. The USCIS recently proposed to change the rules regarding the manner in which H-1B “cap” petitions are filed and selected. In general, the agency proposes to institute a pre-filing electronic registration requirement during a designated period. An employer would not be able to file an H-1B cap petition unless (1) it registered and (2) the registration was selected by the USCIS. Although the agency does not propose making changes to the criteria for lottery selection, it does propose to change the method of selection with the goal of selecting more Advanced Degree professionals. This change would further the provision in President Trump’s Buy American and Hire American Executive Order that directed the Department of Homeland Security (the umbrella organization to the USCIS) and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

There is a short comment period for this proposed rule – comments are due on January 2, 2019 – suggesting that the USCIS would like to implement this new system for this year’s H-1B cap filings. Because of the expected opposition to implementation of this new system, particularly with so little advance notice, it is unclear whether the new system will be put in place in time. If not, the current system, without pre-registration, will apply for the coming Fiscal Year 2020 “cap” filings.

Other developments that may affect certain employers

Supreme Court upholds Trump travel ban. In a big victory for President Trump and for Presidential power to determine who enters the United States, the U.S. Supreme Court upheld 5-4 President Trump’s third “travel ban,” which was issued on September 24, 2017, as a Proclamation. The majority deferred to Presidential authority, even though it recognized claims that, based on candidate Trump’s campaign statements, the Proclamation was motivated by discriminatory animus against Muslims. According to the majority, “[B]ecause there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.”

“Travel Ban No. 3” was broader and more nuanced than the Administration’s earlier travel bansand applied to eight nations – Iran, Libya, Somalia, Syria and Yemen, all of which were covered by the original travel ban issued on March 6, 2017, plus Chad, North Korea and Venezuela. Sudan, which was included in the March 6 travel ban, was removed from the list of restricted nations. More recently, Chad has been removed from the list, based on further government review in accordance with the Proclamation.

“Dreamers” can stay for the time being. In February 2018, the U.S. Supreme Court refused to immediately review an injunction issued by a federal judge in California that blocked the Trump Administration from terminating the Deferred Action for Childhood Arrivals program. The Supreme Court’s decision not to review allowed the case to go to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit upheld the injunction last month, and the Trump Administration is seeking review by the U.S. Supreme Court – again.

Court order blocking termination of Temporary Protected Status is on appeal. On October 3, 2018, a federal judge in San Francisco entered a preliminary injunction barring the termination of Temporary Protected Status designations for Haiti, Sudan, Nicaragua, and El Salvador. The lawsuit, Ramos v. Nielsen, challenges the decision of the U.S. Department of Homeland Security to terminate TPS designations for these nations. The plaintiffs were TPS beneficiaries who have resided in the United States for years and their children, who are U.S. citizens. The government has appealed this decision to the Ninth Circuit, and the appeal is pending. Meanwhile, the injunction remains in effect.

Non-immigrant students, exchange visitors who overstay accrue unlawful presence. The USCIS announced that it would no longer allow F, J, and M non-immigrants to remain and overstay their authorized admission in the United States, even if they were admitted to the United States for Duration of Status. F, J, and M non-immigrants admitted for Duration of Status, like other non-immigrants in the United States in different classifications, begin to accrue unlawful presence the day after they are no longer pursuing their course of study or J-1 program, or the day after their course of study or J-1 program has been completed (plus any authorized grace period to depart the United States). The new rule was announced August 9, but the USCIS said that the rule would also apply to F, J, and M non-immigrants who failed to maintain status before August 9.

Unlawful presence for more than 180 days bars an individual from reentering the United States. If the individual has accrued unlawful presence of more than 180 days, he or she will also have to obtain a waiver of the three- or 10-year bar on re-entry to the United States.

Under the previous rule, F, J, and M non-immigrants who were out of status (who left their schools or Exchange Visitor programs, or whose school or Exchange Visitor programs had concluded) generally did not accrue unlawful presence if they were admitted to the United States for Duration of Status. Because unlawful presence was not being accrued, an F, J, or M non-immigrant could have been sponsored by an employer for any eligible work visa category. The only limitation was that the individual would have to leave the United States and re-enter under the sponsored work visa category after applying for a visa abroad at a U.S. Embassy or Consulate.

End of employment authorization for certain H-4 spouses of H-1B workers? The Trump Administration is expected to propose a rule that no longer will allow certain H-4 spouses of H-1B workers to apply for employment authorization.

Limits on training for STEM students? The Administration has considered ending the ability of F-1 students with U.S. degrees in STEM fields to obtain an additional 24 months of Optional Practical Training work authorization beyond the initial 12-month period. The Trump Administration has already limited the ability of these individuals to obtain this STEM training at client work sites.

Proposal to end green cards for more individuals who can’t support themselves. Finally, the Administration has proposed a rule that would expand the “public charge doctrine.” Under this doctrine, individuals cannot obtain green cards if they cannot support themselves, either directly or by means of a sponsor. In the past, the USCIS applied this doctrine only to individuals who were receiving cash assistance. The proposed rule would also exclude individuals who have received noncash benefits, including a variety of public subsidies.

We will continue to provide you information on important development in the field of immigration law that affect employers.

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