Outlook 2018: More Scrutiny, Enforcement for Employment Visas

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By Laura D. Francis

Increased scrutiny of visa applications, greater enforcement, and a rollback of Obama administration regulations, programs, and guidance are likely to dominate immigration policy in 2018.

“It’s really been the first administration where immigration has been a high priority” and “an area of personal interest to the president,” Austin Fragomen of Fragomen, Del Rey, Bernsen & Loewy in New York said. “That’s highly unusual,” Fragomen said during the Practising Law Institute’s Immigration and Naturalization Institute.

Agencies involved in the immigration process will remain focused on protecting U.S. workers, in line with President Donald Trump’s priorities. That focus includes implementing the president’s Buy American and Hire American executive order, which prioritizes the hiring of U.S. workers. It also directs the agencies to find ways to ensure that H-1B specialty occupation visas go to the most skilled and highest-paid candidates.

U.S. Citizenship and Immigration Services wants to ensure that H-1Bs and other employment visas with annual caps are “intended to be for the best and the brightest, the highest paid, the most educated,” Kevin Cummings of the USCIS’ Office of Policy and Strategy said at the Citizenship and Immigration Services Ombudsman’s annual conference in December.

The USCIS is undertaking a “thorough review of employment-based immigration programs” to ensure that they “benefit the American people to the greatest extent possible,” USCIS Director L. Francis Cissna said at the conference.

That includes “a combination of rulemaking, policy memoranda, and operational changes” in line with the executive order, a USCIS spokesman told Bloomberg Law. “We have been charged by the President to ensure that the laws are faithfully enforced and we are currently reviewing policy and procedure to make sure it comports with the letter of the law,” he said.

In December, Cissna met with U.S.-born information technology workers who were laid off and replaced by temporary foreign workers on H-1B visas. “Their stories and the indignities that they suffered inspire our work,” he said.

The USCIS’s most recent regulatory agenda shows plans for regulations overhauling the H-1B program. The agency is planning a new definition of “specialty occupation” to ensure that the visas go to “the best and the brightest foreign nationals.” In addition, the USCIS will rework the definitions of “employment” and “employer-employee relationship” to “better protect U.S. workers and wages,” it said.

Extra Scrutiny, More Enforcement

The Department of Homeland Security as a whole is undertaking the “extreme vetting” Trump called for during his campaign, DHS Deputy Secretary Elaine Duke said at the CIS Ombudsman’s conference. “We’re spending more time with each case,” she said.

The additional scrutiny also could translate to longer, more complex immigration forms, Betsy Lawrence, director of government relations for the American Immigration Lawyers Association, told Bloomberg Law.

It’s also likely that the administration will continue to add to the immigration process, Heather Prendergast of Aljijakli & Kosseff in Cleveland, told Bloomberg Law. Additional screening such as in-person interviews for all employment-based green card applicants who apply within the U.S. are likely, she said.

The additional scrutiny of visa applications is likely to be accompanied by increased enforcement measures.

Immigration and Customs Enforcement Acting Director Thomas Homan has promised a fourfold increase in work-site enforcement actions, to include actions against both employers and undocumented workers.

“We’ve got to get rid of the magnets,” Homan said at a DHS press conference on immigration enforcement statistics. “Work-site enforcement is a big part” of ICE’s priorities, he said.

An ICE representative declined Bloomberg BNA’s request for further comment on the agency’s plans for 2018.

In addition, Cummings said, “employers who petition many times for dozens of beneficiaries should expect to be more often randomly selected for a site visit.”

The Labor Department has been “largely silent” on enforcement since an announcement in early 2017, Vic Goel of Goel & Anderson in Reston, Va., told Bloomberg Law. “It remains to be seen what happens with DOL,” but increased enforcement of the visa programs’ wage requirements is likely, he said.

Drop in Petitions?

The additional scrutiny could cause a drop in H-1B petitions next year, Goel said. There won’t be a “massive dropoff” such that the annual cap on the visas won’t be reached, but the “you need not apply” message the government is sending may cause some companies to think twice, he said.

Goel referenced the “astronomical” number of requests for evidence the USCIS issued in 2017 where it asked for additional documentation to support wages offered to H-1B workers. Lawrence said there’s also “a recurring pattern” of additional RFEs that’s spilling over into L-1 intracompany transferee visa petitions and certain employment-based green card petitions.

As a result, some employers may ask “is this worth the time and trouble?” Goel said.

Foreign nationals also may rethink whether the U.S. “is the right place for them” if getting a visa is too difficult or time-consuming, Prendergast said.

There’s also likely to be increased litigation over USCIS decision-making, according to Goel. While some companies may shrink away from engaging in the visa application process, others could take to the courts because they don’t feel they’ve gotten a “fair shake,” he said.

Regulatory Rollbacks

The Trump administration also is likely to continue rescinding the policies of its predecessor.

Chief among the expected rollbacks is a 2015 regulation that has provided more than 104,000 work permits to the spouses of H-1B workers who are waiting for their green cards to become available. The USCIS announced its plans to rescind the rule in its most recent regulatory agenda.

The DHS is defending a lawsuit by U.S.-born tech workers who say the regulation causes unfair job competition. But the agency has twice delayed proceedings in the case, telling the court that it’s deciding what it wants to do with the regulation.

Also likely to be rescinded or scaled back is a 2016 regulation that allows international students with science, technology, engineering, and mathematics degrees to work for up to three years post-graduation. ICE said it plans to revamp the optional practical training program “to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas.”

The planned changes, announced in the recent regulatory agenda, “would implement new requirements that would reduce fraud and abuse,” including increased oversight, ICE said.

In fact, “any category of work authorization that’s in the regulations” but not “explicitly authorized by statute” is likely to be rescinded or scaled back, Lawrence said. Temporary protected status and deferred action are two examples—both programs provide temporary deportation relief as well as work permits.

In addition, the USCIS is working to rescind a 2017 regulation that admits international entrepreneurs to start businesses in the U.S. A proposed rule was submitted to the White House’s Office of Management and Budget in December.

In the meantime, however, the agency is launching the program created by the regulation after a federal judge ruled that a delay the DHS issued in July violated the law.

“We are working right now to implement it,” and “you’ll be hearing more about that very soon,” Cissna said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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