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Government Immigration Proposals That Will Affect Employers and Employees

Immigration Law Alert

The White House issued several Executive Orders last week limiting entry to the U.S. for refugees and people coming from certain countries, which garnered quite a bit of attention. At the same time the details of a proposed Executive Order on business immigration were leaked to the public. These, along with bills proposed in Congress could significantly affect the ways employers file work visas and green cards for employees.

Update on Previous Executive Orders

First, an update on the Executive Order. The final order issued late Friday increased the temporary travel ban on people coming from Iraq, Iran, Libya, Syria, Somalia, Sudan and Yemen from 30 days to 90 days. Citizens of the affected countries who hold dual citizenship with the U.S. should not be affected. Others who hold dual citizenship with one of the affected countries and another country (not the U.S.) may be affected. While the official Order still apparently includes barring people from those countries who already have green cards, the White House Chief of Staff and DHS officials said on Sunday that those with green cards (permanent resident status) would no longer be included in the ban. The ban does not include people who just merely travelled to those countries. All of these groups of people should expect additional screening upon reentry to the U.S. after international travel, and should contact us before travelling. Federal judges in several states have put a temporary stay on portions of this Executive Order, which seems to be helping at some airports.

The Executive Order suspended the Visa Waiver Interview program at U.S. Consulates around the world. This program allowed visa applicants who were simply renewing a previously granted visa in the same category to submit their application and passport to the Consulate without an interview. Now ALL people applying for any visa at any time will be required to appear for a visa interview.

The final Order also suspends the U.S. refugee program for at least 120 days and indefinitely for refugees from Syria.

Likely Future White House Orders

Second, the White House is apparently working on an Executive Order making changes to immigration policies and regulations related to employers in the U.S. This Executive Order is not finalized so changes could still take place. However, we thought it would still be important to disseminate this information to employers who are making plans to file H-1B petitions in the H-1B cap lottery in the next few months and also for other business planning.

The following is a summary of the important provisions in this draft Executive Order. In it the White House orders the heads of the various immigration agencies to do the following:

  1. Review all immigration regulations related to business immigration within 90 days to determine if they violate current immigration law;
  2. Propose new parole regulations that likely mean the termination of the current parole policies for Deferred Action for Childhood Arrivals (DACA). This is the policy created by the previous White House to allow children brought to the U.S. without documentation to obtain temporary work authorization while their deportation is deferred;
  3. Propose new regulations to reform business visa programs to protect American workers. This is likely aimed at adding more requirements to the H-1B and L-1 processes;
  4. Consider ways to improve the H-1B lottery allocation process;
  5. Within 180 days, commence L-1 worksite audits/visits of L-1 employers and L-1 worksites. H-1B worksite visits already exist. L-1A visits started last year. This order probably means that these government audits will extend to L-1B worksites, including client site visits if the employees do not work in the employers' offices;
  6. Within 2 years, expand the worksite visit program to include all employment based visas (such as O-1, TN, E);
  7. Within 1 year, establish an immigration commission to make immigration policy;
  8. Propose new regulations to reform F-1/J-1 work options (OPT, CPT, and EADs for recent college graduates to work as interns for 1-3 years);
  9. Propose new regulations to clarify what are acceptable activities in the U.S. on B-1 visas;
  10. Within 90 days, provide options to President to reform H-2A, agricultural worker visa program;
  11. Within 90 days, provide options to President to incentivize more employers to use E-Verify—an online employment verification system performed along with the I-9 process when employees are first hired;
  12. Within 30 days, reform the Visa Bulletin and how immigrant visas (green cards) are made available. There is currently a very long backlog of green card applications because there aren't enough green cards available for employers and employees who qualify. The Order also directs agencies to propose new regulations to reform the way I-485 Adjustment of Status Applications (green cards) are filed to reduce inefficiencies in the way green cards are allocated;
  13. Propose new E-2 regulations to conform with current law;
  14. Propose new J-1 Summer Work program regulations;
  15. Investigate the damage to U.S. workers of foreign visa employment and within 18 months provide a report to the president, and a similar report on the damage to U.S. workers specifically caused by the H-1B, L-1 and B-1 programs within 9 months.

Congressional Proposals

The new Congress began in December. Since that time both the Senate and House of Representatives have proposed bills that would affect the most common work visas that employers use in the U.S. Several of these are proposals of bills that were issued in previous sessions of Congress. The following is a summary of the most important among those:

1. Senate bill from Senators Richard Durbin and Charles Grassley (H-1B and L-1 Reform Act of 2017)

  • Replace the existing H-1B lottery process with priority system that CIS will create, which would prioritize H-1B petitions with higher salaries and non "H-1B-dependent" employers;
  • Increase Department of Labor audits/investigations of H-1B employers;
  • Prohibit companies that employ more than 50 percent of their U.S. workforce on H or L visas from obtaining any more H-1Bs;
  • Change the L-1 program to add a prevailing wage requirement similar to the H-1B, further restrict L-1B specialized knowledge standards, and add a cap on the number of L-1s issued per year.

2. House of Representatives bill from Representative Darrel Issa (Protect and Grow America Jobs Act)

  • Raise "H-1B dependent" exemption to $100k instead of $60k;
  • Discontinue current Master's degree exemption from H-1B dependency;
  • Result: those employers that employ a large portion of employees (usually more than 15 percent) on H-1B visas must advertise and prove there are no Americans available for the job anytime the salary is less than $100k.

3. House of Representatives bill from Representative Zoe Lofgren (High-Skilled Integrity and Fairness Act of 2017)

  • Increase H-1B prevailing wage requirements by eliminating the Level 1, entry-level prevailing wage;
  • Replace the H-1B lottery system with a system that grants new H-1B visas to the highest paid employees, starting with those who earn 200 percent of the highest prevailing wage level;
  • Replace the green card allocation system to be first-come, first-served, instead of the current system where employees from China, India, Mexico, and Philippines wait up to 10 to 15 years longer than people from other countries.
  • Similar to Issa's bill, raise the wage at which an H-1B dependent employer would be exempt from the recruitment requirement to $130,000, and eliminate the Master's degree exemption;
  • Set aside 20 percent of the 85,000 new H-1B visas for start-up companies with fewer than 50 employees;
  • Streamline H-1B filings (remove requirement to file amended H-1B when worksite changes) and give benefits to foreign nationals who attend university in the U.S. (remove nonimmigrant intent for F-1 students);
  • Allow employees to use experience gained on the job to apply for PERM Labor Certification Applications.

4. House of Representatives bill from Representative Jason Chaffetz (Fairness for High Skilled Immigrants Act)

  • Replace the green card allocation system to be first-come, first-served, instead of the current system where employees from China, India, Mexico, and Philippines wait up to 10 to 15 years longer than people from other countries.

Practical Effects

While immigration changes usually take quite a bit of time, it is possible that some of these proposals may affect the H-1B cap petitions that are filed by April 1 and authorize work by October 1.

With the proposed changes and the Executive Order freezing federal government hiring, it is very likely that adjudication times for all types of immigration petitions and applications will increase significantly.

As proposals are finalized we will provide analysis and proposals for continuing to fulfill business needs.

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