Trump Administration’s Changes to Work Visa Programs
Insight & Impact - Labor & Employment Regulatory Newsletter 06/20/18 By: Eric Ledbetter and Nneka Umeh
ISSUE: The Director of U.S. Citizenship & Immigration Services ("USCIS"), L. Francis Cissna, recently announced several changes in how the agency is administering foreign work visa programs. The changes impact the following four areas:
1. Increased Worksite Visits for H-1B and L-1 Employees
USCIS enforces employer compliance with the H-1B and L-1 regulations through its internal Fraud Detection and National Security ("FDNS") unit, which has been operating since 2010 and is funded by immigration petition fees. With an increase in unannounced FDNS visits at U.S. worksites, USCIS hopes to identify and combat the fraudulent use of H-1B and L-1B programs. Statistics regarding the extent of purported fraud involving these programs has not been made publicly available recently, although FDNS statistics from prior years has shown only negligible incidence of fraud and abuse.
Now, more than ever, it is imperative to ensure the accurate completion and retention of H-1B Public Access Files to avoid potential fines and civil penalties. It is also important to notify USCIS of any material changes in H-1B or L-1 employment, via a timely filed amendment petition. If a required amendment is not submitted, FDNS could make a finding that the new employment arrangement was not authorized by USCIS, thus initiating the process to revoke the visa petition and find the employee out of status or, worse, unlawfully present.
2. Narrowing Scope of TN Economist Profession
The 1994 North America Free Trade Agreement ("NAFTA") created the TN work visa for citizens of Canada and Mexico. NAFTA carves out 61 specific qualifying professional categories for the TN visa. To qualify for a TN visa, it must be demonstrated that the TN candidate's job fits into one of these 61 professions. While NAFTA delineates the education and experience requirements for TN professions, there is no guidance regarding the job duties that make up these professions. In the absence of such guidance, USCIS now looks to its own interpretation of the Department of Labor's Occupational Outlook Handbook ("OOH"). In doing so, USCIS has concluded that jobs such as Financial Analyst and Market Research Analyst, which have long been accepted as belonging to the Economist profession under NAFTA, will no longer qualify and therefore are likely not eligible for a TN visa.
USCIS scrutiny over TN petitions involving the Economist category is likely to increase. For example, USCIS may question whether a Bachelor's level position qualifies for a TN visa in the Economist category because the OOH states most Economists have advanced degrees. It is important to note that such a reading of the OOH would be inconsistent with Appendix 1603.D.1 of NAFTA, which states that to qualify for the TN category of Economist, the beneficiary need only have a baccalaureate or a licenciatura degree.
3: No Longer Deferring To Previous USCIS Decisions
When reviewing a request to extend an already authorized H-1B or L-1 visa status, USCIS has historically limited its review to instances where there is a substantial change in jobs, new information has emerged that would have an effect on eligibility, or evidence indicates that the earlier approval contained a material government error. In other words, to conserve resources USCIS typically would not re-adjudicate an H-1B or L-1 petition each time it comes up for a simple extension unless there were the type of extenuating circumstances outlined above. However, the Trump Administration has announced, via memo, that USCIS adjudicators should now disregard any previous USCIS approval and dedicate resources to a thorough review of petition extensions.
The increased scrutiny by USCIS means that each petition, whether a first-time filing or an extension that has been renewed multiple times in the past, must be reviewed by an experienced immigration attorney to ensure its approvability. On a practical level, the increased focus at USCIS on all petitions is likely to result in longer processing times as well as increased questions in the form of requests for additional evidence.
4: Proposed Rescission of H-4 Employment Authorization
In 2015, the Department of Homeland Security ("DHS'') amended its regulations to provide work authorization eligibility for certain H-4 dependent spouses of H-1B employees. This employment authorization eligibility is limited to H-4 dependent spouses waiting to complete the last step to transition from nonimmigrant to green card status. A Notice of Proposed Rulemaking (“NPRM”) to rescind this employment authorization for H-4 dependent spouses is expected this summer. After a formal notice of the proposed rule in the Federal Register, organizations and individuals will have an opportunity to provide feedback during a public comment period of 30-60 days.
U.S. organizations with employees on an H-4 EAD should be mindful of the upcoming termination of this program and, if appropriate, file for H-4 EAD renewals as early as possible while also exploring alternative employment authorization options. The government has three probable options if they move forward with the plan to end work authorization for H-4 dependent spouses waiting to become green card holders: immediately cancel issued and pending H-4 EADs, invalidate issued and pending H-4 EADs on a future date, or prohibit the adjudication of pending H-4 EADs while issued H-4 EADs remain valid.
Read more Insight & Impact from June 2018:
- Department of Labor Wage and Hour Division Sets Forth 2018 Regulatory Agenda
- Federal Agencies Issue Additional Guidance and Signal Stepped-Up Enforcement of Mental Health Parity Rules
- Trump Administration Proposes Changes to Several Obama-Era OSHA Regulations
IMPACT: Employers should follow developments to determine how these changes impact their foreign work visa programs.
For more information, please contact your local Quarles & Brady attorney or these members of our employee benefits group: