FGI News and Publications

10 Business-Based Immigration Updates Expected In 2018

In April 2017, President Trump issued the Buy American, Hire

American Executive Order. United States Citizenship and Immigration

Services (USCIS) has carried out and is considering a number of

policy and regulatory changes to fulfill the President’s

“Buy American, Hire American” executive order, including

conducting a “thorough review” of employment-based visa

programs. Further, there are several bills being considered in the

House and Senate pertaining to immigration. The following items are

immigration changes being discussed for 2018:

1. Possible Cancellation of H-4EADs

There is both a pending court case and a proposed rule to

eliminate the 2015 rule which granted H-4 Employment Authorization

Documents (EADs) to certain H-4 dependent spouses seeking

employment-based lawful permanent resident (LPR) status.

‘Save Jobs USA’ filed a law suit which was initially

dismissed in 2016. Subsequently, ‘Save Jobs USA’ filed an

appeal claiming the rule has no protections for U.S. workers and

increases the pool of workers looking for jobs and the U.S.

Department of Homeland Security (DHS) never had the authority to

grant EADs to H-4 visa holders.

Further, DHS is reviewing the 2015 rule which extended

employment authorization to certain H-4 dependent spouses. This

follows the issuance of Executive Order 13788, Buy American and

Hire American. The rule is proposing to remove H-4 employment

authorization. A rule addressing this issue may be published in

February 2018.

2. H-1B Cap Lottery and EmployerRegistration

DHS is considering a rule that would require H-1B employers to

pre-register for the H-1B cap lottery and only those employers that

have won a cap number would be allowed to file an H-1B cap

petition. DHS may also propose a rule to impose a priority system,

which would give preference to the most highly educated and/or

highly paid H-1B workers.   Rules addressing these issues

may be published in February 2018. Changes to government

regulations are subject to the rule making process, which usually

takes several months to complete and involves a notice and comment

period for the public. As such, it is anticipated that any proposed

rules would not complete the rule making process before April 1,

2018, the start of the filing period for the 2018 H-1B cap

season.  However, it is not clear, if some proposed changes

could be implemented prior. Further, a preference system that

requires pre-certification for the lottery would likely require

legislative action. Some bills are proposing this (including one

proposed by Congresswoman Zoe Lofgren) but this would not likely

move in Congress.

3. Changes to OPT

DHS is considering imposing a rule that would increase the

oversight of students on Optional Practical Training (OPT), and

impose additional obligations on the part of the U.S. employers who

employ F-1 students during their OPT period. It is anticipated that

a rule addressing this issue may be published in October 2018.

Additionally, the Trump administration is considering

eliminating the regulation on STEM OPT. The Obama administration

finalized a rule extending the work period for international

students in STEM fields by two years, for a total of three years of

work experience. The Trump administration may rescind this

additional two year period.

4. Potential FeeIncrease

DHS is considering a rule to increase USCIS filing fees for

various petitions and applications.  DHS indicated the rule

may be published in October 2018. Additionally, civil monetary

fines have been adjusted for inflation for H-1B program violations

effective January 2, 2018.

5. Changes in Definitions andAdjudications for H-1B Petitions and Revised LCA

DHS is in the process of promulgating a rule that would revise

the definition of the term “specialty occupation” in

connection with the H-1B program. The rule also proposes to revise

the definition of the terms “employment” and

“employer-employee relationship.”  It is anticipated

that a rule addressing this issue may be published in October

2018.

USCIS has already been amending their policy on what qualified

as a Specialty Occupation. In March 2017, USCIS released a policy

memo impacting adjudication of petitions listing a level 1 wage.

Companies are receiving numerous Requests for Evidence (RFEs)

addressing issues including:

• USCIS asserting duties indicate theposition is beyond entry level and LCA doesn’t correspond with

  position.

• USCIS claiming Level 1 is not aspecialty occupation.

USCIS announced that the number of RFEs issued between January

2017 and August 2017 had increased by 44 percent from the previous

year. The USCIS memo also stated that the U.S. Department of

Labor’s (DOL) Occupational Outlook Handbook (OOH), alone (which

has been used to determine if the petitioner’s position and

positions like it generally require a bachelor’s degree or

equivalent), will not be enough to prove the position is a

“specialty occupation” and USCIS may look more at the

proposed job duties when determining the complexity to determine

whether the position is a specialty occupation. In 2018, we can

anticipate even greater inspection of job descriptions and the

specialty occupation standard.

6. Increased Site Visits andIncreased Scrutiny by CBP

FDNS Site Visits

Following the Executive Order Buy American, Hire American, there

has been an increase in the number of USCIS site visits. The USCIS

Administrative Site Visit and Verification Program has Fraud

Detection and National Security (FDNS) officers make unannounced

visits to collect information as part of a compliance review. Going

forward, USCIS is planning a more targeted approach to site visits

focusing on:

• Cases where USCIS cannot validate theemployer’s basic business information through commercially

  available data;

• H-1B-dependent employers (those whohave a high ratio of H-1B workers as compared to U.S. workers, as

  defined by statute); and

• Employers petitioning for H-1Bworkers who work off-site at another company or organization’s

  location.

ICE Site Visits

In an October 2017 speech, Immigration and Customs Enforcement

(ICE) acting director Thomas Homan confirmed his plans to follow

the President’s orders increase enforcement to prevent fraud

and abuse. ICE has already increased inspections and worksite

operations, and going forward ICE indicated the agency will:

• Boost the number of inspections inthe upcoming fiscal year;
• Multiply time spent on enforcement byfour or five times;
• Target undocumented employees fordetention and removal; and
• Prosecute employers for knowinglyhiring or retaining workers who lack valid U.S. employment

  authorization.

DOL Investigations

In June 2017, the U.S. Department of Labor (DOL) announced plans

to more aggressively confront entities committing visa program

fraud and abuse. The DOL Secretary directed the Wage and Hour

Division to conduct additional civil investigations, instructed the

Employment and Training Administration (ETA) to propose changes to

the LCA, and told the ETA to coordinate the administration and

enforcement of visa programs to refer criminal fraud to the Office

of the Inspector General. The DOL will continue to work with the

DOJ and DHS to further investigate and detect visa program fraud

and abuse.

CBP Inspection

In addition to site visits for those workers in the United

States, Customs and Border Patrol (CBP) Officers are imposing

greater levels of scrutiny for those individuals seeking entry to

the U.S. Following the Buy American/ Hire American Executive Order,

The Foreign Affairs Manual (FAM) was updated for H, L, and O visas

so officers should take the executive order into consideration when

they review how visas are adjudicated at consulates abroad. The FAM

and associated Handbooks (FAHs) are an authoritative source for the

Department of State’s (DOS) procedures that govern the

operations of the State Department, the Foreign Service and other

federal agencies.

It is crucial that employers are prepared for greater scrutiny

of employment sites and immigration forms by auditing their public

access files and having accurate I-9 records.

7. Re-adjudication of ExtensionPetitions

USCIS issued a memo in 2004 which directed adjudicators when

adjudicating petition extensions involving the same parties and

underlying facts as the initial petition to defer to the prior

determination. An October 2017 memo rescinded the former USCIS

policy and stated that adjudicators must review the petition and

supporting evidence to determine whether the petition may be

approved. USCIS also indicated that they may still request

additional evidence in extension cases. Employers should be

prepared for greater scrutiny over extension petitions in 2018.

8. I-485Interviews

October 2017, USCIS started expanding in-person interviews for

employment-based Adjustment of Status applications. Previously,

applicants in these categories did not require an in-person

interview with USCIS officers in order for their application for

permanent residency to be adjudicated. Beyond these categories,

USCIS is planning an incremental expansion of interviews to other

benefit types. This new requirement may increase processing times

for these petitions. In our office’s experience, the interview

process appears to be going smoothly for employment-based

applicants.

9. “Travel Ban”Update

December 2017, the U.S. Supreme Court issued orders which

allowed the Presidential Proclamation from September 2017 to be

implemented imposing country-specific travel restrictions on

individuals from 8 countries:  Chad, Iran, Libya, North Korea,

Somalia, Syria, Venezuela, and Yemen. Some countries have specific

visas which are suspended while for other countries all immigrant

and nonimmigrant entry is suspended. A case-by-case waiver is

available if foreign national can show that being denied entry

would cause undue hardship to the individual, their entry would not

pose a threat to U.S. national security, and that their entry

“would be in the national interest.” Procedurally, cases

will continue to be reviewed and scheduled for visa interviews. The

officer will determine whether the applicant is affected by the

proclamation and, if so, whether the case qualifies for an

exception or may qualify for a waiver. No separate application for

a waiver.

10. Re-NegotiatingNAFTA

The U.S., Mexico, and Canada are currently renegotiating the

North American Free Trade Agreement (NAFTA). Businesses and

individuals are concerned that the entire NAFTA professional visa

category (TN Visa) might be eliminated during NAFTA renegotiations.

Movement of professionals was one of the key demands Canada listed

before NAFTA negotiations commenced in August 2017. The U.S., which

could terminate NAFTA, has not addressed labor mobility in the

first rounds of negotiations. Canada also would like the list of

NAFTA occupations to be expanded. In contrast, in November 2017,

USCIS issued a policy memo clarifying the types of duties

permissible under the TN visa category for Economists. It is

possible the Trump Administration may look at restricting other TN

categories in the future.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.