There are a number of ways an individual may immigrate to the United States, including as a refugee, in temporary protected status, on a work visa, as a tourist, as a student, or as a spouse of someone lawfully admitted to the United States. While this list is not exhaustive of the ways to immigrate to the United States, it highlights the complexity of the Immigration Law field. Business Immigration can be loosely defined as the immigration, both temporary and permanent, of individuals and their families who are coming to the United States to work. For purposes of this article, we will be discussing policies and regulations and how they pertain to Business Immigration.
Through the use of Executive Orders and other regulatory changes, the Trump Administration has effected sweeping changes through the U.S. immigration system. Many high profile issues, such as the “Travel Ban” and concerns about migrant caravans coming through Mexico, have arisen in Immigration Law during the last two years. Yet many of these prominent, and occasionally infamous, issues have little direct impact on Business Immigration.
That is not to say that the field of Business Immigration has remained unchanged under the Trump Administration. The last two years have created an ever changing regulatory and practical landscape in the field of Business Immigration. The White House and the United States Citizenship and Immigration Services (USCIS) have promulgated Executive Orders and Policy Memoranda pushing for sweeping changes to the U.S. Business Immigration System. We have gathered pertinent Business Immigration updates for you.
January 27, 2017 (the “Travel Ban”)
“Protecting the Nation from Foreign Terrorist Entry into the United States” is an executive order that places limits on travel to the U.S. from certain countries and bars entry for all refugees who do not possess either a visa or valid travel documents. The Supreme Court upheld the most recent version of the travel ban on June 26, 2018.
Due to the limited scope of the travel ban, it will not directly affect immigration for those individuals who are not nationals of Libya, Yemen, Venezuela, Iran, Somalia, Syria, and North Korea, and should only have a limited impact on Business Immigration.
April 18, 2017 (“Buy American, Hire American”)
Since the introduction of the Executive Order “Buy American, Hire American” (BAHA), federal agencies, including the Department of Homeland Security (DHS) through USCIS and the Department of State, are following the directive to focus on protecting U.S. workers and U.S. resources. Petitions and visa applications that would have previously been approved without question are being audited and/or denied. This Executive Order has led to record denials of visa applications and petitions worldwide.
The graph below details the denial rates of L-1B visas from October 2015 through July 2018. The data shows that between the end of January 2017 and May 2017, there was a significant increase in the denial rate of L-1B visas from 21.88% to 27.91%. Additionally, since the implementation of BAHA, the denial rate has steadily risen, peaking at 30.50% at the end of 2017. Through 2018, the denial rate for L-1B visas has declined, though it remains above pre-BAHA levels. While this data is only available for L-1B adjudications, these trends are indicative of what immigration practitioners are seeing in all visa categories.
October 23, 2017 (Previously Submitted Evidence Does Not Count Anymore)
On October 23, 2017, USCIS issued a policy memorandum to address how officers should review nonimmigrant petitions for extension. Previously, USCIS officers would grant deference to previous adjudications and accept previously submitted evidence. However, moving forward, USCIS will adjudicate all extension petitions at the same level of scrutiny as initial petitions for many nonimmigrant categories.
Even if there has been no change in the circumstances of an applicant, their employer, or their job, a previous approval is not a guarantee that an application will not be denied when an extension is filed. An employer can no longer assume that USCIS will reach the same result with the same evidence when deciding whether to grant an extension. Employers should be ready to provide complete and enhanced documentation when it is time to extend their employee’s visa.
February 22, 2018 (No more “Nation of Immigrants”)
Prior to February 21, 2018, the USCIS’s mission statement read: “USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.” Now, the statement reads: “US Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.” This is a meaningful change of emphasis.
July 13, 2018 (Immediate Denials of Petitions)
Previously, if USCIS received an application or petition that was missing information, the agency would issue a request for more evidence, commonly known as an “RFE”. This request allowed applicants the opportunity to correct any mistakes or omissions. This new USCIS policy memorandum states that USCIS can now outright deny applications missing information without providing an opportunity to supplement an application or remedy a deficiency.
While this policy raised concerns amongst immigration practitioners, it appears that USCIS is currently denying petitions that do not establish the basic case for visa eligibility. These petitions are typically prepared by individuals or non-specialist third parties. This policy increases the importance of petitioners and applicants utilizing immigration practitioners to prepare visa petitions.
August 9, 2018 (Students and Trainees can now accrue Unlawful Status)
Remaining in “unlawful status” for over 180 days (or 365 days) would result in a ban from returning to the US for three years (180 days) or ten years (365 days). That ban would apply even for an immigrant who was eligible for another status, even a “green card” as the spouse of a U.S. Citizen.
There was a bright line for determining “unlawful status.” If an alien entered the US illegally, she would immediately be in unlawful status. If an alien overstayed the period for which they were admitted (i.e. the date on their I-94), they would begin accruing unlawful status when their I-94 expired. An alien who was ordered to leave the US would accrue from the date of their ordered departure, if they did not leave.
Some aliens have a status without a fixed departure date. Those aliens would not be subject to the 3 or ten year bar. Students and trainees who are admitted for “Duration of Status” rather than a specific period of time used to be included in the group of aliens without a fixed departure status.
A new regulation now interprets “unlawful status” to begin whenever an alien with “Duration of Status” violates that status. This is a drastic change, particularly for students whose status is dependent on timely and proper actions not only by the student, but by their foreign student advisor and by USCIS. Due to the delay in adjudicating H-1B petitions, many students in F-1 status are accruing unlawful status as their F-1 status expires October 1, but USCIS has not adjudicated the H-1B petition on their behalf. As of February 1, these students had crossed the 180 day accrual of unlawful status threshold and could be banned from returning to the United States for three years.
September 2018 (Visas and Public Benefits)
The Trump administration has proposed a rule to deny non-immigrant visas and green cards for those individuals likely to use certain public benefits. Individuals who legally use public benefits like food assistance and Section 8 housing vouchers could be denied green cards under this proposed rule. The rule is so strict that some immigrants have been afraid to use public hospitals for their U.S. citizen children.
Immigration and Customs Enforcement Worksite Enforcement
Over the past two years, there has been a significant increase in the number of work site investigations conducted by Immigration and Customs Enforcement (ICE):
|Criminal Worksite Related Arrests
|Administrative Worksite Arrests
In FY 2017, businesses were ordered to pay over $95 million in fines related to immigration violations, while in FY 2018, businesses were only order to pay $10.2 million. ICE is not solely concerned with the “big fish” but has also begun targeting smaller businesses and less egregious violators for investigation. Worksite investigations and I-9 audits can be costly to defend against and ICE can levy significant fines against businesses for violations.
January 30, 2019 (Major Changes to H-1B Visa Lottery)
Beginning April 1, 2019, USCIS will change the visa lottery system for H-1B visas. In the past, 20,000 candidates with advanced U.S. degrees were selected in a preliminary Master’s Cap lottery. Those candidates with advanced degrees who were not selected were placed in the pool with other H-1B candidates and, 65,000 individuals were selected in the general H-1B Lotter. This year, USCIS is reversing the order and everyone participates in the general (65,000) H-1B lottery, and those with Masters degrees not chosen will then participate in the Masters Cap lottery. This substantially increases the chances for selection of those with U.S. Master’s degrees as the expense of all other applicants.
With last year’s H-1B lottery, which started at the beginning of April, USCIS suspended “Premium Processing” for lottery applicants. The reasoning was that this would allow USCIS to catch up on its work load and be fairer, particularly as lottery winners would not have H-1B status begin before the start of the new fiscal year on October 1st, by which time USCIS expected to have adjudicated all the H-1B cap cases in the normal course.
Not only has the backlog of H-1B processing increased dramatically, but USCIS did not come close to finishing adjudicating the lottery petitions by October 1st. Many applicants lost work authorization as a result.
Nonetheless, on January 25, 2019, USCIS announced that H-1B lottery cases filed in April 2018, could now be expedited via premium processing for an additional fee of $1,410. After delaying processing for nearly ten months, USCIS offers to expedite for a fee, which actually was increased during the delay.
Finally, USCIS also announced that beginning April 2020, businesses wishing to file new H-1B Cap and Master’s Cap petitions will be required to register electronically with USCIS during a designated registration period. USCIS will then select registrations, which will be eligible to file an H-1B petition. The electronic registration may reduce costs for businesses and immigration practitioners in that complete applications won’t be required for petitions not selected in the H-1B lottery.
In the past two years, the landscape of Business Immigration has experienced significant upheaval. It is more important than ever for all immigration filings to be extensively documented and for companies and individuals to develop timely and comprehensive global mobility plans. Further, it is critical for businesses who are employing individuals, whether in a non-immigrant or immigrant capacity, to develop thorough immigration action plans from visa petitions, to visa processing, through employment obligations in the United States.
William Adams is a second year attorney in the International/Immigration Practice Group at Arnall Golden Gregory LLP. He received his J.D. from the University Of Georgia School Of Law in 2017 and is admitted to practice in the State of Georgia.
Matt Ohm is a fifth year attorney in the International/Immigration Practice Group at Arnall Golden Gregory LLP. He received his L.L.M. from the University Of Georgia School Of Law, is a Rechsanwalt, and is licensed to practice in the State of New York.
Teri A. Simmons is the Director of the International/Immigration Practice Group at Arnall Golden Gregory LLP. She has almost 30 years of experience in immigration law. She received her J.D. for the University Of Georgia School Of Law.