Possible Employment-Based Immigration Changes Under New Administration

While it is impossible to predict what changes are in store for immigration under the next Trump administration, the American Immigration Lawyers Association has developed a list of possible policies that could impact employment-based immigration matters.

What We Might Expect

 In the short-term, it is possible there could be:

• An implementation of travel bans for individuals from certain countries (countries previously impacted during the last Trump administration included Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, Venezuela, North Korea, Chad, Egypt, and Mali)

• A heightened level of scrutiny, greater unpredictability and potential delays in processing of petitions and applications filed with USCIS and U.S. Consulates, as well as upon entry to the U.S. for individuals from all countries.   For example, we may see an increase in RFEs and denials on cases

• An increase in consular administrative processing delays for visa applications

• Potential elimination of DACA, Temporary Protected Status (TPS), and other humanitarian parole programs.  Current TPS countries include Afghanistan, Burma, Cameroon, El Salvador, Ethiopia, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela, and Yemen

• Longer processing times for all types of applications

• Stopping the current practice of adjudicating H-4 EAD applications at the same time as the H-1B petition (leading to delays in the issuance of H-4 EADs)

• An increased emphasis on Worksite Enforcement, such as Anti-Fraud site visits and audits for I-9s and H-1B Public Access File compliance

• Reinstatement of in-person interview requirements for all green card applications

• Reinstatement of biometrics requirements for H-4 dependents and other dependent categories

• An increase in immigration-related expenses due to higher level of RFEs/denials, potential increase in filing fees, and increased need to use the premium processing program

Longer-term, we might see:

• A modification of prevailing wage requirements for H-1B and PERM cases, making it harder to sponsor foreign nationals for entry-level, Level 1 wage, or lower paying roles

• A restriction or elimination of OPT and STEM OPT work authorization programs for F-1 foreign student visa holders

• A reinstatement of stricter "public charge" requirements for green card applications, requiring applicants to provide extensive documentation of financial resources 

• An elimination of existing automatic extensions of EADs

• Potential revocation of the regulation authorizing the issuance of EADs to H-4 spouses

How to Prepare

The following are some ideas that could be implemented to prepare your team and your foreign national employees for these changes:

• Organizing a day where foreign national employees can schedule a brief (10 minute) consultation with an immigration attorney, where they can discuss their immigration concerns

• Advising your foreign national employees to exercise caution and restraint in traveling internationally on or after January 20

• Setting expectations for increased processing times and a higher level of scrutiny/unpredictability for all types of immigration applications

• Preparing for delays in consular processing of visa applications at U.S. Consulates abroad, including advising the business on the possibility that the foreign national employee applying for a visa abroad may be delayed in their ability to return to the U.S.

• Conducting an internal audit of I-9 and Public Access Files, in anticipation of potential government audits (let us know if you would like our assistance with this)

• Reviewing your H-1B cases to ensure that job/worksite locations are properly reflected on LCAs, in preparation for potential site visits from USCIS or DOL.  You might consider asking H-1B employees to confirm their current job title/work location (including home office) to identify gaps

• Increasing your immigration budget in anticipation of increased RFEs/Denials, in-person interviews, and usage of the premium processing program to ensure timely adjudication of applications 

• Reviewing HR records to identify employees in vulnerable statuses (TPS, DACA, Humanitarian Parole) and consulting with immigration counsel to determine whether there might be alternative immigration paths for them

• Reconsider your overall recruitment strategy if it relies heavily on F-1 student visa holders with OPT to fill entry-level positions

CML Attorneys are available to discuss any immigration questions, concerns or needs of your organization.