U.S. Supreme Court punts on DACA decision, leaving the program in place for now
The Trump administration’s policies on employment-based immigration will continue to stymie organizations seeking to hire foreign national talent in 2019.
The new year will likely be defined by:
- More technical interpretations of current policies, restricting eligibility for employment visas.
- Proposed rules on H-1B and H-4 visa employment.
- Court decisions, the most prominent being pending cases at the appellate level over the future of the Deferred Action for Childhood Arrivals (DACA) program
- The fate of hundreds of thousands of Temporary Protected Status (TPS) beneficiaries
- Little congressional action other than holding oversight hearings.
‘Silent Wall’ Will Remain
The United States Citizenship and Immigration Services (USCIS) will continue to implement policies emanating from President Donald Trump’s Buy American and Hire American executive order.
Since 2017, the agency has issued policy memos:
- Directing officers to no longer defer to prior approvals when examining renewal or extension requests.
- Allowing more scrutiny of H-1B petitions, especially if employers intend to contract those workers out to third-party client worksites.
- Facilitating visa petition denials without first issuing requests for evidence (RFEs).
- Instructing officers to serve a notice to appear, a charging document that orders foreign nationals to appear in immigration court to begin removal proceedings, to anyone unlawfully present in the United States when an application, petition or benefit request is denied.
- Changing the way unlawful presence is calculated for those with F-1 student visas.
Although the mainstream media focuses on the border wall and other immigration issues of interest to the general public, U.S. employers and their foreign national employees will continue to be impacted by this ‘silent wall’ of heightened scrutiny, denials and backlogs in processing, and adjudication of work visas and permanent residence applications.
Expect the high denial rates to continue. Attorneys and employers report multiple denials based on USCIS claiming a job is not in a specialty occupation or that it fails to meet the definition of an employer/employee relationship. Many H-1B visa holders are afraid to change jobs because of administration policies. They fear the increase in denials and processing times that could leave them out of status.
We expect more of the same from the administration this year because USCIS will keep viewing high-skilled, foreign-born professionals more as threats to U.S. workers than as assets to the U.S. economy.
The main challenge for employers in 2019 will be the systematic stagnation that has been imposed globally throughout all aspects of the immigration pipeline, including reductions in premium processing increased wait times for employment authorization documents, increased scrutiny of all applications and increased costs to employers.
Technical Changes Drive Policy
The standards that USCIS officers use to approve or deny visa petitions—and those officers’ interpretations of them—will continue to have a significant impact on employers. Each one of the employment-based visa categories have certain key terms which determine eligibility. For H-1Bs you must be working in a ‘specialty occupation’; L-1Bs must have ‘specialized knowledge. The way these terms are interpreted can have a profound impact.
The interpretation is getting more restrictive and focused, making it much more difficult for workers to qualify in the various visa categories.
An example of that is, previously, petitioning for a software developer with a degree in computer science didn’t draw any attention. But now that request is questioned or denied for failure to prove specialty occupation because a developer could potentially have more than one type of degree.
RFEs and denials issued for H-1B visa petitions have risen considerably since Trump issued the Buy American and Hire American executive order in April 2017.
USCIS has announced that they will produce a guidance memo on H-1B adjudication standards this year, to support what their officers have been doing. We could see something like that for L visas as well. The agency could issue more guidance on prevailing wages and third-party offsite employment to mitigate displacement of U.S. workers through outsourcing.
The administration is unlikely to do more with executive orders in 2019—that just seems to lead to instant litigation and instead will stick to regulatory guidance and rulemaking.
H-1B visas will continue to be a focus for regulation in 2019. Employers are currently awaiting White House review of a USCIS final rule that will require employers to register online to be randomly selected before they submit visa petitions under the annual H-1B cap. The rule would also reverse the order of the H-1B lottery to allocate more visas to individuals with advanced degrees from U.S. universities.
The agency has proposed having the new system finalized and in place for the fiscal year (FY) 2020 filing deadline on April 1, but it has also acknowledged that it may not be feasible to do so. Experts recommend organizations continue to work on H-1B cap preparation as usual.
Given all the uncertainty, we would advise employers to prepare cases as if the rule will not be ready this season. Employers should plan for the possibility that they will need to submit a full H-1B cap petition and supporting evidence for each worker, as in years past. Then if the rule does go into effect, they are still meeting all of the requirements.
In addition, USCIS plans to propose rescinding employment authorization documents (EADs) for the H-4 spouses of H-1B workers waiting for green cards. The H-4 EAD regulation will be one of the biggest changes in 2019.
The proposed rule, which would remove work authorization for up to 100,000 individuals and would prompt a flood of comments in response and a lawsuit.
Not Much Expected from Congress
Experts don’t believe that lawmakers will produce much significant legislation this year—certainly not the comprehensive overhaul many agree is needed to fix the country’s dysfunctional immigration system. Most of the reform we will see this year on workplace immigration will come from the federal agencies, not Congress.
We also believe that the House Judiciary Committee is likely to hold oversight hearings on the administration’s immigration enforcement and regulatory actions. The latter may include agency actions on issues such as requests for evidence that hinder employers’ ability to access global talent.
Limited measures are a possibility, such as providing legal status for DACA beneficiaries in exchange for border security funding. Congress will aim to address permanent legal status and work authorization for Dreamers. Should such legislation ever be enacted, it may serve as a gateway for Congress to consider other workplace immigration issues where bipartisan agreement is possible.
This may include legislation to modernize workplace immigration that impacts employers’ ability to access global talent, like eliminating the per-country limits on employment-based green cards, addressing access to workplace visas and work authorization of new hires with an E-Verify mandate.
Legislation expanding the number of H-2B seasonal guest-worker visas also has support in both parties and could also be introduced. Democrats have already filed legislation that would give temporary legal status to undocumented immigrant farmworkers, a key labor issue for an industry that relies heavily on foreign national employees who lack work authorization.
Court Decisions Could Be Momentous
Much of the Trump administration’s agenda on immigration is tied up in litigation. The most high-profile example of this, the decision to end DACA, is pending in three federal appeals courts.
Employers had been waiting to see if the U.S. Supreme Court intended to intervene in the issue, but it now appears likely that it will not during its current term, resulting in a continuation of the program until sometime after the court’s next term begins Oct. 1.
A U.S. Supreme Court decision on the fate of DACA—if and when it comes—will have a reverberating effect on the employment immigration landscape.
The DACA decision from the Supreme Court will be important because it deals with the fundamental question of the power of the President to issue these executive orders and by implication the agency’s administrative guidance memos.
The lead DACA case, Regents of the University of California v. DHS, began when Attorney General [Jeff] Sessions issued a decree revoking the program. The Ninth Circuit upheld the interpretation that the government’s revocation of DACA was an ‘arbitrary and capricious’ act and therefore unlawful.
The court will deal specifically with the power of the executive branch to make broad pronouncements without any kind of rulemaking or legislative process.
Courts will also decide challenges to the administration’s decision to end TPS for the nationals of several countries, specifically El Salvador, Haiti, Nicaragua and Sudan. The protected status of 325,000 individuals overall is in question, including 57,000 from Honduras. The construction, restaurant, food services and landscaping industries will be hit the hardest—particularly in California, Texas, New York, Florida, Maryland and Virginia.
Another case potentially before the high court, Kisor v. Wilkie, could change how much deference USCIS officials are given to interpret requirements that go beyond a plain reading of the statute or an agency’s own policy memos.
The outcome will have implications for companies considering litigation against the agency over its more restrictive interpretation of visa eligibility.
Additional Areas to Watch in 2019
Immigration and Customs Enforcement (ICE) will keep to the stepped-up pace of workplace enforcement seen in 2018 .
Worksite investigations rose by more than 300 percent last year, and the agency set a 10-year high for the number of I-9 audits conducted and criminal charges filed. ICE opened 6,848 worksite investigations in FY 2018, compared to 1,691 in the previous 12 months, and it initiated 5,981 I-9 audits, compared to 1,360 in FY 2017. More than 2,300 people were arrested at work in FY 2018―more than seven times the amount in the previous year.
International student enrollment at U.S. colleges declined in 2018 and may drop more in 2019. A proposed rule to establish a maximum period of authorized stay for F-1 students could be published this year. Replacing the current ‘duration of status’ for international students with a ‘maximum period of authorized stay,’ as the potential rule would do, would be another administration policy that would increase uncertainty and discourage international students from coming to the United States.
Another blow to students, universities and employers would be in store if the Trump administration decides to end or limit Optional Practical Training for students in science, technology, engineering and math fields, as it has talked about doing.