Overhaul of US Immigration Regulations Ahead of Election
2020 is set to bring wide-ranging reforms in US immigration regulations as the Trump Administration moves ahead with planned changes against a deadline of this year’s Presidential election.
The proposed rules, as outlined in the Government’s Unified Agenda for the Department of Homeland Security (DHS), will, if enacted, profoundly affect employers, H-1B and L-1 visa holders and others reliant on economic migrants in the US.
Of these changes, we highlight the key areas of concern for multinational employers.
H1-B petition processing is in line for a number of changes. This includes revising the definition of a ‘specialty occupation’ to focus on allowing only the brightest and best to qualify under the route and amending the definitions of employment and the employer-employee relationship in favor of enhanced protections for domestic US workers.
DHS are also to propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.
The new regulations are expected to impact employers and job candidates alike.
Employers recruiting for roles that historically have qualified under the H1-B program are advised to reassess the roles against the Bureau of Labor Statistic’s Occupational Outlook Handbook.
The employer-employee relationship is also facing tougher scrutiny, for example, where the employee is deployed to work at US-based customer locations.
Denial rates for new H1-B petitions continue to rise in line with increasingly restrictive administration processes, with the new changes adding both to the bureaucratic and cost burdens on employers and to the uncertainty of recruiting under the H1-B route.
That said, the H1-B reforms are without Congress authority, and as such may be subject to legal challenge if applied by USCIS in violation of the rule-making process.
H-4 Visa Employment Authorization
Another proposal affecting the H-1B route is the withdrawal of automatic employment authorization (EAD) for spouses under the H4 visa. The change has long featured on the Administration’s agenda and is now expected to take effect in March 2020.
Denial rates for individual L-1B petitions continue to rise. This is fuelling greater frustration among employers who are facing decision-making by consular officers with little knowledge and understanding of the petitioner’s market and field of profession.
Specifically, we are seeing L-1B denials on the grounds that a company should only have a limited number of personnel with specialized knowledge, despite an asbence within the rules of a cap on how many specialist knowledge employees are permitted within an organisation.
Against this backdrop, DHS propose to revise the definition of “specialized knowledge”, clarify the definition of employment and the employer-employee relationship and ensure employers pay appropriate wages to L-1 visa holders.
Details of the new L-1 rules are expected September 2020, but once again, the changes may be met with legal challenge where USCIS is seen to be imposing new regulations beyond those defined by statute. For example, introducing a new prevailing wage into the L-1 requirements could be deemed as overreaching Congress’ statutory text in this area.
The decline in international students enrolling in US universities since 2016 is in large part being attributed to tougher restrictions on graduates being able to remain in the US to work after their studies.
This is inevitably impacting employers’ graduate recruitment strategies, particularly as other countries such as Canada proactively seek to attract international students through student immigration routes and encouraging international graduates to stay in the country and become economically active.
Yet the US Administration is pressing ahead with changes to the rules on practical training options available to F and M visa students, expected by August this year.
Proposals are also due in February 2020 for the introduction of a maximum period of authorized stay, as opposed to admitting students for the “duration of status” until they complete their studies.
ICE also proposes to vet all designated school officials (DSOs) and responsible officers (ROs), who administer student data via the Student and Exchange Visitor Information System (SEVIS).
A further specific area of focus for the Administration has been students overstaying their visas. A previous attempt by USCIS in 2018 to bar for ten years international students who have intentionally overstayed from the US was successfully challenged in 2019 in the ‘Guilford College’ case.
Undeterred, USCIS is set to publish new rules on this issue, entitled “Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions”, by September 2020.
Following unsuccessful attempts last year to effectively abolish family-sponsored immigration, we expect 2020 to bring measures refocused on significantly reducing family-based migration.
This includes a new rule to bar new immigrants from entering the US without health insurance and another relating to inadmissibility on public charge grounds. At the time of writing, both measures have been temporarily blocked by the courts, yet are expected to reemerge in amended form depending on the outcome of the legal challenges.
DHS is also set to update regulations by amending sponsorship requirements to better ensure a sponsor has the assets and resources to support the intended immigrant at the statutorily required level.
International recruitment – more complex but not impossible
In addition to classification-specific changes, the Trump Administration has pledged to continue with measures to increases fees for immigration applications, amend adjustment of status regulations and limit use of employment authorization.
How much of the reforms will make it into practice remains to be seen, but what is clear is the Administration is driven to have as many of its stricter rules in effect ahead of the outcome of this year’s Presidential Election.
If you have any queries about the changes and the potential impact your recruitment and global mobility activity, speak to our US immigration specialists.
Last updated: January 14, 2020