Feeling Discouraged About Immigration?

by Miles & Stockbridge P.C.
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Feeling Discouraged About Immigration? You are not alone. Many agree that the U.S.’s current immigration system is in need of comprehensive legislative reform. In the absence of meaningful action by Congress, the strategy of the current Administration appears to be to subtly (and sometimes not-so-subtly) discourage immigration through executive order and agency action. The Secretaries of Labor, State, and Homeland Security have been directed to issue rules to protect the interests of U.S. workers in the administration of the immigration laws and to rigorously enforce all existing immigration laws and regulations. It is becoming increasingly clear that the immigration strategies and processes that worked last month or last year may no longer work. Here are some of the trends that we are seeing:

  • H-1B Under Attack: A dramatic and unprecedented increase in the scrutiny of H-1B petitions resulting in many requests for evidence from the USCIS challenging whether entry-level positions with entry-level pay rates (which in the past have been routinely approved as H-1B-eligible positions) qualify for H-1B classification. This appears to be a direct effort to discourage the filing of future H-1B petitions, especially petitions for entry-level positions, and we are expecting that many petitions that would have been approved in prior years may be denied this year. 
  • Student Visa Woes: Issuance of guidance from the State Department indicating its intent to subject applicants for student visas to greater scrutiny as to whether they intend to depart the U.S. at the conclusion of their studies or Optional Practical Training. This scrutiny is likely to discourage or even prevent some foreign students from traveling outside of the U.S.  Students who decide to travel internationally (especially those who have applied or intend to apply for H-1B status) will need to be prepared to prove substantial ties to their home country and to discuss their long-term plans following the completion of their schooling.
  • Stepped Up Worksite Enforcement: An increased level of worksite enforcement efforts, including government I-9 audits making it more important than ever for employers to review and improve their worksite compliance efforts.
  • Intense Questioning of Visa Applicants: In addition to the restrictions imposed by the on-again, off-again “travel ban,” visa applicants from around the world are experiencing delays in visa issuance and being asked to provide additional background information that was never required previously (such as social media user names, 15 years of travel and employment history, sources of funding for travel, etc.) – otherwise known as “extreme vetting.” In addition, the Department of Homeland Security has announced its intent to begin conducting in-person interviews of employment-based green card applicants (interviews which were legally permitted but almost never conducted prior to this year) that are likely to create substantial backlogs and delays.
  • Reversal of Several Obama-era Initiatives: The delay of the International Entrepreneur Rule until at least March 2018 and the rescission of the DACA and DAPA programs.

What lessons can be learned from these trends? First, it has never been more important to ensure that your company is in compliance with existing immigration laws and regulations. A review of existing policies and procedures for I-9 completion, international travel, visa applications, and similar issues can help to ensure compliance. Second, H-1B petitions need to be prepared with an eye toward the government’s current interpretation of the law. Foreign workers filling entry-level positions are no longer “slam-dunk” candidates for the H-1B visa category. Third, advance planning for international travel and preparing for potential issues and delays is key. Careful preparation of every visa applicant for likely visa interview questions can help to avoid some issues. Close coordination with immigration counsel can help you to stay on top of the latest developments.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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