Commentary: Threats, Opportunities for Employers in 2018
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
After a tumultuous, difficult year in 2017 with respect to immigration and border issues, we share our thoughts, along with those of other lawyers from the Alliance of Business Immigration Lawyers (ABIL) on what employers can expect in 2018. Below is a summary of our collective thoughts and reports from the field.
Where Things Stand Now
The Trump administration appears to be attempting to keep various campaign promises on immigration and border enforcement that mesh with the president’s (and his supporters’) overall dim view of foreign people entering the United States. Before he was elected, President Trump made a wide range of anti-immigration promises couched in national security terms. Those promises included, among other things, building a massive wall along the southern border and making Mexico pay for it; immediately deporting undocumented migrants; barring Muslims from entering the United States; “extreme vetting” of immigrants; and creating a “deportation force.” The president has waffled on Deferred Action for Childhood Arrivals (DACA) “Dreamers,” verbally expressing his support and understanding of their plight and then canceling the DACA program with an exhortation for Congress to handle it.
Executive orders issued since his inauguration have included various entry/travel bans, limits on refugees and threats to sanctuary cities to pull their federal funding. The first travel ban on people entering from several predominantly Muslim countries was announced seven days after his inauguration with no apparent advance process, discussion, preparation, warning or guidance to the Department of Homeland Security. The result was chaos and protests at airports. Various court challenges and subsequent travel bans ensued.
Arrests for “noncriminal immigration violators” are up, with 31,888 noncriminal arrests during the first eight months of the Trump administration, according to U.S. Customs and Immigration Enforcement. On the other hand, deportations have actually decreased by about 14,000 this year, reports say, but Attorney General Jeff Sessions has called for a “concerted effort” by immigration courts to speed up processing of pending immigration cases.
Concerns for 2018
Current concerns for 2018 include:
- Animosity of the administration toward immigrants: This is leaching into all areas of USCIS adjudications and the attitude of U.S. Customs and Border Patrol agents toward travelers with a bona fide legal basis for entry.
- Creeping arbitrariness and unpredictability: Attorneys report clients being held up at the border or turned away in some cases due to considerations that do not seem to be based in law or regulation. Denials are being issued in some cases filed by employers on behalf of professionals that previously would have been considered routine. Some agents of the federal government appear to believe it is now open season on cracking down, and to be acting accordingly. Officers are no longer required to defer to previous decisions when extensions are requested. An attorney reported an example of such decision-making: a “perfectly clean” request for a three-year L-1 worker was approved without an RFE for one year because “she is an employee at will, so only one year is allowed.” Another attorney reported similar treatment for Trade NAFTA clients at certain ports of entry. A third attorney said, “To me the top threat is something that affects everything we do—it is the sense (which is not universal but permeates the ranks) inside the Departments of Homeland Security and State that they have impunity and are not bound by the rule of law. Unless and until employers adopt a long-term view and sue—as opposed to the short-term approach of just refiling and hoping for a better result—the agencies are right.”
- More and more demands for additional documents, interviews and requests for evidence (RFEs): Among other things, U.S. Citizenship and Immigration Services (USCIS) is reportedly considering mandatory interviews for all applications to renew or replace green cards (Forms I-90). Interviews for petitions to remove conditions on residence for certain married couples (I-751) are already a “nightmare.” USCIS is phasing in interviews for adjustment of status applications based on employment, including for some who have already filed their applications. Executive orders are requiring visa applications and adjudications to be reviewed for compliance with “extreme vetting” and “Buy American/Hire American” policies, for both initial petitions and extensions. There has been a sharp uptick (45 percent compared to last year, according to USCIS) in RFEs on H-1B visa petitions for skilled workers.
- Massive backlogs and delays in applications and petitions increasing as a result of the greater scrutiny, in some cases leading to disruptions in travel, work and study plans.
- An overall “brain drain” and reduction in quality employees as immigration decreases, deportations increase, and more and more people leave the United States for Canada or other countries perceived to be friendlier to immigration, or never apply to enter the United States in the first place.
- Arbitrary caps on H-2B workers and lack of a returning worker exemption.
- A lack of visa categories for unskilled workers who are not temporary (which constitutes about 75 percent of the entire workforce).
- Denials of advance parole renewal requests filed by green card applicants if they leave the country.
- Stress on employers as they find it harder to fill important positions in a timely manner or are accused of not wanting to hire U.S. workers when in some cases there are simply not enough U.S. workers qualified and available to take the jobs.
- Stress on clients, including would-be immigrants and their families; family separation; and stress on attorneys.
- Travel restrictions on people from certain countries based on a new ban issued in September that the Supreme Court allowed to be put into effect while appeals run their course.
- Ending temporary protected status for some (e.g., Nicaraguans, Haitians and most recently Salvadorans – see later article) and making it harder to designate or extend such status in the future.
- A planned removal of the regulation allowing certain H-4 spouses of H-1B nonimmigrants to obtain employment authorization documents (EADs), with a notice of proposed rulemaking scheduled for February 2018. This is expected to result in lost filing fees and labor turnover costs for employers with workers on H-4 EADs.
- A proposed electronic registration program for H-1B petitions subject to numerical restrictions, with a notice of proposed rulemaking considered for February 2018, along with possible further restrictions on H-1B visas.
- A proposal to make it more difficult to obtain a J-1 waiver.
- Privacy issues: As of the middle of fiscal year 2017, approximately 30,000 travelers had their electronic devices searched at the border or at ports of entry. This was three times the number searched in 2015.
In addition to those noted above, future concerns include:
- A planned revision (not yet described) of the definition of Specialty Occupation for H-1B workers and additional requirements for H-1B wages, with a notice of proposed rulemaking scheduled for October 2018.
- Proposed new requirements for F and M students with respect to the practical training period, to include increased oversight of schools and participating students, with a notice of proposed rulemaking scheduled for October 2018.
Although no one has a crystal ball and things look bleak overall for the foreseeable future on the immigration front, there are a few positive indications on the horizon. For example, the government was recently opened after a three-day shutdown until February 8, predicated in part on finding a legislative “fix” to allow DACA “Dreamers” to stay in the United States. As of September 4, 2017, there were 689,821 people with valid DACA status in the country. Also reportedly under serious consideration is meaningful EB-5 reform legislation, such as the Fairness for High-Skilled Immigrants Act, which would allow some EB-5 investors to obtain immigrant visas more quickly because their place in the waiting line would no longer depend on chargeability to specific countries. And USCIS began accepting applications again under the International Entrepreneur Rule in December, albeit temporarily while the agency drafts a notice of proposed rulemaking to quash it permanently.
Otherwise, some court challenges are either already working their way through the system (e.g., on the latest travel ban) or may be filed in the future.
In general, we recommend that employers and employees consider:
- Allowing much more time than before for the application/petition process. Posted processing times are not reliable. Several additional months may be required if there is an RFE or an unanticipated additional security check or other problem.
- Filing a mandamus action in federal court to compel the agency to act if a case experiences extreme processing delays.
- Not leaving the United States in the short term if status is in any way uncertain.
- Contacting your Fredrikson & Byron attorney for advice and help in specific situations.