Upcoming Changes in Business Immigration Law and Policy

Upcoming Changes in Business immigration Law and Policy

Roundtable Discussion Leads

Karine Wenger, Partner
11238 El Camino Real

Suite 100

San Diego, CA 92130

T: +1 (858) 793-1600

Monica Sherman Ghiglia, Associate

11238 El Camino Real

Suite 100

San Diego, CA 92130

T: +1 (858) 793-1600

Immigration in the Trump Administration

On January 20, 2017, Donald Trump was inaugurated as President of the United States. With immigration playing a big part in the presidential campaign, changes to U.S. immigration law and policy are likely to impact not only refugee admissions and humanitarian issues, but business immigration as well.

While changes to some government policies and procedures can be made quickly, rescission of longstanding regulations will take longer. In the longer term, new legislation related to immigration can also be expected in the new Congress.

What seems certain is that more government resources will be devoted to immigration enforcement—not just along the U.S.-Mexico border, but also in the U.S. interior. With an expected rise in investigations and employer audits, compliance with the complicated immigration rules and regulations will be more important than ever.

What Changes Can Be Made Most Easily, and What Changes Require More Process?

Easiest to Change:Sub-regulatory actions, such as policy memos, FAQs, executive orders, administrative processing decisions based on National Security and ICE enforcement policy
Harder to Change:Published regulations —generally requires APA rulemaking to modify or rescind.
Possible Regulatory Changes: AC21 Implementing Regulations; STEM OPT and Cap Gap; H-4 Spousal Employment Authorization; International Entrepreneur Parole Rule; Increased penalties for immigration-related employment violations; Broadened employer liability for immigration-related discrimination claims; EB-5 immigrant investor program modernization.
Hardest to change: statutes, requiring legislative action.

Executive Order Entry Ban

On January 27, 2017, President Trump signed an executive order that suspended entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen to the United States for a period of 90 days.The entry ban was challenged by a number of lawsuits. As a result of the State of Washington v. Trump case, on February 3, 2017, a Nationwide Temporary Restraining Order was issued on the entry ban.

On March 6, 2017, President Trump signed a revised executive order to suspend the entry of nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen for a period of 90 days beginning March 16,2017. The new order rescinded the January 27thentry ban.

Who Would Be Subject to the Revised Entry Ban?

The executive order prohibits nationals of the six restricted countries from entering the United States unless they qualify for an exemption or are granted a waiver.Iraqi nationals are not subject to the ban, though they were covered by the original January 27thorder.

The order also suspends the admission of refugees from any country—including Syria—for 120 days as of March 16th.The previous entry ban suspended the admission of Syrian refugees indefinitely, but that restriction has been dropped.

The following classes of foreign nationals are exempt from the ban:

U.S. lawful permanent residents (Green Card holders)
Holders of a valid U.S. visa, even if they have not yet used it

Visas that were provisionally revoked under the January 27thexecutive order should be valid for travel
Foreign nationals with a visa that was physically cancelled under the January 27thexecutive order may be entitled to a new travel document for entry to the United States

Dual nationals traveling on a valid passport from a non-restricted country

Must hold a valid U.S. visa or be visaexempt
Canadian landed immigrants are subject to the ban but may be eligible for a discretionary waiver (see below)

Foreign nationals holding a valid advance parole document
Foreign nationals holding a valid A, C-2, G or NATO visa
Foreign nationals granted asylum
Refugees already admitted to the United States and those with travel formally scheduled by the State Department

Under the ban, non-exempt nationals of the restricted countries would be prohibited from entering the United States for the duration of the ban, unless they are granted a waiver.

Waivers of the Entry Ban

The executive order permits the Departments of Homeland Security and State to grant discretionary waivers of the entry ban.Waiver applicants must show that a denial of entry would cause undue hardship and that their entry is in the national interest and would not pose a threat to national security.

The executive order suggests that a waiver may be appropriate for several classes of foreign nationals, including:

Canadian landed immigrants applying for a visa in Canada
Persons with significant business or professional obligations in the United States
Nonimmigrants previously admitted to the United States for a continuous period of work, study or another long-term activity who are seeking to resume that activity.

However, given the stringent criteria, waivers may be difficult to obtain.

Current Status of the Entry Ban

On March 15, 2017, a federal district judge in Hawaii issued a nationwide temporary restraining order (TRO) that prohibits the U.S. government from enforcing the executive order. The Hawaii TRO was issued in a lawsuit brought by the State of Hawaii against the Trump Administration.

The TRO means that foreign nationals who would have been subject to the executive order should be able to apply for visas and enter the United States, provided they are otherwise admissible.However, these individuals should contact their immigration counsel when planning travel to the United States, because future rulings could permit the federal government to enforce the entry suspension.

“Buy American and Hire American” Executive Order

The Trump Administration is planning to increase restrictions and heighten scrutiny of the H-1B program, according to a new “Buy American andHire American” executive order signed by President Trump on April 18, 2017.Though the executive order will not have an immediate impact on the H-1B or other employment-based immigration programs, it initiates a wide-ranging administrative review that could lead to new regulations and policy.

The executive order directs the departments of Labor, Homeland Security, Justice and State to propose revisions to employment-based immigration program rules and guidance, with the goal of protecting the economic interests of U.S. workers.The order does not provide specifics, but indicates that the agencies will focus on increasing H-1B wage minimums in an effort to promote the hiring of U.S. workers over foreign workers.This is in line with new guidelines from U.S. Citizenship and Immigration Services (USCIS) indicating that positions with entry-level wages may be ineligible for the H-1B program.

The immigration agencies are directed to recommend ways to replace the H-1B cap lottery with an allocation system that gives priority to foreign nationals who have earned advanced degrees or are paid higher wages. Such changes would likely require legislation; severalbills now pending in Congress propose similar priority systems for H-1B visa allocation.

The Administration also announced its intention to focus on eradicating immigration fraud and abuse, and promoting the integrity of the U.S. immigration system.This is consistent with recent enforcement warnings from the departments of Labor, Justice, State and Homeland Security, issued to coincide with the opening of the FY 2018 H-1B cap filing season. The announcements signal that the agencies will coordinate more closely on compliance and enforcement in employment-based immigration programs generally, which is likely to trigger more worksite audits and investigations.At a press conference, administration officials offered additional details, including an indication that the immigration agencies will pursue higher H-1B filing fees.

Key Immigration Bills in the 115th Congress:

Some of the legislation we are keeping a particularly close eye on include:

H.R. 170, the Protect and Grow American Jobs Act, introduced by Representative Darrell Issa (R-CA) on January 3, 2017. The bill aims to limit exemptions from H-1B dependency requirements by increasing the minimum salary to $100,000 (with increases tied to CPI) and eliminate the master's degree exemption.
H.R. 670, High-Skilled Integrity and Fairness Act of 2017, introduced by Representative Zoe Lofgren (D-CA) on January 24, 2017. The bill aims to amend the Immigration and Nationality Act to reform the H-1B visa program and revise the allocation of employment-based visas.Among the bill's key provisions are a three-tiered prevailing wage system, a wage-based allocation of H-1B numbers, a carve-out of H-1B numbers for small businesses and start-ups, and the elimination of per-country caps on employment-based immigrant visas.
S. 180, H-1B and L-1 Visa Reform Act, introduced by Senators Charles Grassley (R-IA) and Richard Durbin (D-IL) on January 19, 2017. Reintroduction of Grassley-Durbin reform bill. Previously introduced in 2015 (S. 2266). Key provisions include:

•Heightened H-1B wage requirements

•New L-1 wage minimums

•Recruitment obligations for all H-1B employers

•Non-displacement obligations for all H-1B and L-1 employers

•Restrictions on third-party placement of H-1B and L-1 employees

•More restrictive definition of L-1B specialized knowledge

•Broader investigatory authority to DOL, DHS and DOS

•Penalties for L-1 program violations

•Elimination of B-1 in lieu of H-1B

H.R. 392, the Fairness for High-Skilled Immigrants Act of 2017, introduced by Rep. Jason Chaffetz (R-UT) on Jan. 10, 2017. The bill aims to amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants and to increase the per-country numerical limitation for family-sponsored immigrants
S. 354, Reforming American Immigration for Strong Employment (RAISE) Act,introduced by Sens. David Perdue (R-GA) and Tom Cotton (R-AR) on Feb. 13, 2017. The bill proposes to: eliminate certain family-based preference categories, eliminate the Diversity Visa (DV) lottery, and limit refugees offered permanent residency to 50,000 per year.

Renegotiation of NAFTA

The Trump Administration is reportedly seeking swift renegotiation of the North American Free Trade Agreement (NAFTA), after earlier indications that it was considering an order to withdraw the United States from the trade pact with Canada and Mexico. Renegotiations are not expected to have an immediate impact on U.S. NAFTA-related immigration programs, but could lead to changes in the immigration provisions of the trade agreement in the future.

U.S. immigration programs under NAFTA include the TN category for Canadian and Mexican professionals, streamlined procedures for Canadian and Mexican L-1 intracompany transferees, and broader permissible activities for Canadianand MexicanB-1 business visitors. The Trump Administration’s plans for these programs are not yet clear, nor is the impact of a renegotiation on reciprocal Canadian and Mexican programs.It is not certain that the immigration provisions of NAFTA would be altered in a renegotiation.

The timing of a NAFTA renegotiation is not yet known, but could take several months or more.The White House is reportedly asking Congress to pass legislation that would allow for fast approval of a renegotiated agreement.

What This Means for Employers and Foreign Nationals

Renegotiations are not expected to affect Canadians or Mexicans currently admitted in TN, L-1 or B-1 status or those applying in the near term. However, because changes are possible, your organization should work with its immigration counsel to stay apprised of NAFTA developments. It may be prudent to identify current employees working in a NAFTA-related immigration category in the United States, Canada or Mexico and assess alternatives in the event that renegotiations limit those programs in the future.

Department of State Increased Scrutiny and Delays

The State Department has ordered U.S. Consulates to increase the screening of visa applicants and restrict the number of visa appointments held each day, according to new agency guidelines.

Visa officers will conduct more intensive interviews to determine whether visa applicants are eligible for the immigration category they seek. In addition, officers will have more discretion to order additional security checks beyond the regular background checks that all visa applicants undergo.
The new guidelines apply to all visa applicants, but certain classes of applicant will be subject to even more intensive screening that could include checks of social media accounts. This includes Iraqi nationals and foreign nationals who have been in an ISIS-controlled territory. Additionally, each consulate will have the ability to identify groups of foreign nationals in their applicant population who will be subject to increased scrutiny.
The new guidelines were issued to comply with a presidential memorandum that orders the departments of State, Homeland Security and Justice to increase the vetting of applicants for all immigration benefits.
In conjunction with the new screening guidelines, the State Department is limiting the number of visa interviews for each officer to 120 per day. Fewer appointments will allow consular officers to conduct longer and more intensive interviews with each applicant.
What This Means for Foreign Nationals and Employers
Applicants should expect to be questioned closely about all aspects of their visa applications. In the near future, some applicants could be required to provide detailed information about their travel, work and
residence history over the preceding 15 years, and phone numbers, email addresses and social media accounts used in the last five years.
Applicants should also be prepared for the possibility that they will be subjected to extra background and security checks, commonly known as "administrative processing." These checks can add days or weeks to the process.
These new processes, and the limits on the number of visa interviews, are likely to cause longer waits for interview appointments, and longer waits for passports with visas to be returned after the interview.

Increase in Site Inspections, Audits and Government Investigations

USCIS's Fraud Detection and National Security (FDNS) unit conducts unannounced inspections of the worksites of employers who sponsor foreign workers. The purpose of a site inspection is to verify the existence of the employer, check the truth of the information provided by the employer in its immigration petitions and ensure that sponsored workers are complying with the terms of their admission to the United States.
FDNS has been making site visits for several years, focusing principally on H-1B and L-1A employers. But the Trump Administration plans to broaden the program in the near term to cover the L-1B specialized knowledge category and in the longer term to all immigration categories.

What Happens During a Site Inspection
During a site inspection, an FDNS officer will verify the contents of a specific immigration petition, usually by visiting the work location listed in the petition. The officer may ask to speak to a human resources manager or other company representative, the foreign worker and his or her direct supervisor or manager. The officer may ask for a tour of the premises and request documents like payroll records and organizational charts. The employer can ask to have an attorney present during the site visit. Officers will not typically reschedule a site visit so that an attorney can be there, but may agree to allow counsel to be present by phone.
After a site visit, the officer may contact the employer by phone or email to request additional information. If there appears to be a discrepancy between the petition and the information gathered during the visit and in subsequent communications, USCIS may notify the employer of its intent to revoke the petition. If that occurs, the employer will have the opportunity to explain any perceived inconsistencies. If there have been material changes to the foreign worker's job or conditions of employment since the approval of the petition, the employer may need to file an amendment with USCIS.
What This Means for Employers

Your organization should make sure it is prepared for an FDNS site visit. A point person should be designated at each worksite where a sponsored foreign national is employed. Receptionists and security personnel should be instructed about receiving FDNS officers. Foreign nationals and their managers should also be advised of the possibility of a site inspection and what to expect.

Employers should also be prepared for increased worksite audits and government investigations by all agencies including the Department of Homeland Security, Department of Labor, and Department of Justice. Employers should consider conducting internal audits and implementing risk management protocols for their immigration/global mobility programs with respect to: government or legal changes, compliance, safety, security, business continuity and vendor management.

Questions?

Please feel free to reach out to us at 858-793-1600 with any questions.

Please note that this handout is for informational purposes only.