Jul 31, 2018
Legal Immigration: The Other Crackdown
Jul 31, 2018
By Melissa Harms
There has been no shortage of press coverage about the challenges facing immigrants as they seek refuge in the United States. Indeed, the separation of families, ending the Deferred Action for Childhood Arrivals (DACA) program, and the travel ban are common stories in the mainstream media. However, the changes to immigration law that affect work-authorized foreign nationals and the businesses that employ them are just as widespread and have disastrous consequences for the U.S. economy. Although President Trump has been vocal in his aim to construct a physical wall, behind the scenes his administration has worked to curtail legal immigration through an abundance of policy memoranda and executive orders altering visa policies and procedures to the detriment of those seeking and even holding visas.
In January of 2017, the Trump administration enacted Executive Order 13788, “Buy American and Hire American,” with a stated purpose “to create higher wages and employment rates for workers in the United States, and to protect their economic interests…to rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”(1) In furtherance of this stated objective, the administration has enacted several initiatives that have drastically curtailed the approval of employment-based immigration applications.
Changing the definition of which applications qualify for H-1B status. The most common work-authorized visa, H-1B status, is accorded to individuals in positions that require at least a bachelor’s level degree in a specific field. The high-tech sector heavily relies on this H-1B foreign workforce to fill scientific and computer-related occupations. As part of this visa, the employer must guarantee the worker meets the prevailing wage for the occupation as established by either an authoritative or government survey. However, on March 31, 2017, the Customs and Immigration Service (USCIS) released a policy memorandum which not only restricted the types of computer professionals that would qualify for H-1B status, but also stated in a footnote that using a level 1 (entry-level) wage from the government’s own survey indicates that a position is not sufficiently complex and therefore would not qualify for H-1B status.(2) As a result, the USCIS issued a large number of requests for evidence (RFEs) on first-time H-1B applications. Indeed, from January 1, 2017 to August 31, 2017, the USCIS issued 85,000 RFEs on H-1Bs, representing a 45% increase over the same period in 2016.(3)
Re-adjudication of previously approved work-authorized visa applications. Shortly thereafter, in October of 2017, the USCIS issued a policy memorandum stating that when adjudicating petitions for extensions of a foreign national’s existing work-authorized immigration status, the USCIS would not accord deference to the previously approved application even when the facts of the case and law had not changed.(4) This policy has resulted in an increase in RFEs and uncertainty for businesses that have relied for years on the same workers who fill critical positions for which employers cannot locate similarly trained American workers.
Dismantling of International Entrepreneur Rule (IER). In August of 2016, the USCIS issued the International Entrepreneur Rule to grant parole (a specialized type of entry) to entrepreneurs who have already gained US investor funding to create start-ups to pursue technological innovations and research ideas.(5) After a notice and comment period in accordance with the Administrative Procedures Act (APA), the USCIS published a final rule to take effect on July 17, 2017. However, on July 11, 2017, the Department of Homeland Security announced that implementation would be delayed until March 14, 2018. After a legal challenge, a district court vacated the delay of the rule.(6) In December 2017, the USCIS began accepting applications. It remains to be seen, however, how the USCIS will adjudicate these petitions, as they require a subjective determination of whether the petitioner submitted compelling evidence of the potential for growth and job creation.
Charging the USCIS with issuing Notices to Appear. On June 28, 2018, the USCIS issued a policy memorandum expanding the range of circumstances in which USCIS officials may issue a Notice to Appear (NTA) to a foreign national after denial of an immigration benefit. An NTA is the charging document that places foreign nationals into immigration proceedings, requiring them to appear before an immigration judge to determine whether they should be removed from the United States. Previously, NTAs were generally issued by the enforcement arm of the Department of Homeland Security: Immigration and Customs Enforcement (ICE) or by Customs and Border Protection (CBP).(7) From 2013 to 2017, the USCIS issued only 12% of all NTAs. This policy memorandum is broad in scope and has implications for employment-based cases, as it states that if an applicant is not “lawfully present” in the United States at the time an application is denied, the USCIS should issue an NTA. The resulting effect will overburden the already backlogged immigration courts with cases where individuals could otherwise have opted to depart the United States on their own or simply re-file or appeal the denied application. In the past, most applicants for employment-based immigration status would re-file another application or seek another immigration benefit and very few would remain in the United States illegally.
Denials of immigration applications without an opportunity to address application deficiencies through the Request for Evidence (RFE) process. In one of the biggest blows to the consistency and transparency of immigration adjudications, on July 13, 2018, the USCIS issued a policy memorandum that provides USCIS adjudicators the discretion to deny an application without first issuing an RFE or notice of intent to deny (NOID). Effective September 11, 2018, this policy reverses a 2013 policy memorandum that stated that unless there is no possibility for eligibility, the USCIS would issue an RFE to allow the petitioner the opportunity to overcome any deficiencies in the application. Under this new policy, USCIS officers can use their discretion to deny applications for lack of sufficient initial evidence (as well as for statutory ineligibility), without specifying what additional information would have been necessary for a successful application. This memorandum together with the June 28, 2018 memorandum allowing the USCIS to become an enforcement arm of Department of Homeland Security substantially increases the likelihood that previously work-authorized individuals could find themselves in immigration proceedings--a costly and time-consuming process.
In-person interviews for employment-based permanent residency applications. Effective October 1, 2017, the USCIS announced that applicants for employment-based permanent residency (green card) must attend an interview at a field office of the USCIS.(8) Previously, the USCIS only required interviews for cases warranting additional scrutiny due to suspected fraud, inadmissibility, or ineligibility, while waiving the interview for the vast majority of employment-based green card cases. As a result of the change, the local USCIS field offices do not have the resources to process both employment and family-based applications, which has led to a backlog of many years for many permanent residency applications.
Elimination of work authorization for certain spouses of foreign nationals. The USCIS announced in December of 2017 that it plans to eliminate a regulation issued by the Obama administration that provides for work permits for spouses of H-1B workers who are awaiting USCIS adjudication of long-pending permanent residency applications.(9) From February of 2015 to June 29, 2017, USCIS approved over 104,000 work permits for these individuals who, along with their H-1B spouses, are sometimes facing processing delays of ten years or longer for their permanent residency applications. (10)
Additional security checks and processing time for overseas visa issuance. When U.S.-based foreign nationals travel abroad, they must have a visa in their passports to re-enter the United States. Previously, when these individuals applied for these visas abroad at a U.S. consulate or embassy, they would occasionally encounter a security processing “hit,” referred to as “Administrative Processing,” which could delay issuance of the visa for weeks to several months. Due to the Trump Administration’s “Extreme Vetting” policy, administrative processing delays are more common and lengthier. In many cases, foreign national employees leaving the U.S. for either work or personal travel are stranded outside the U.S. for weeks or months at a time, causing severe disruption to U.S. businesses.
As is evident from the numerous USCIS policy memoranda and procedures, the current administration has dismantled a significant portion of the existing immigration legal framework without congressional action or administrative rulemaking through the Administrative Procedures Act. These changes are having an enormous impact on businesses that rely on foreign talent to fill jobs for which there is a shortage of qualified U.S. applicants.
(1) Exec. Order No. 13788, 82 Red. Reg. 18837 (Apr. 18, 2017).
(2) “PM-602-0142, Policy Memorandum, Rescission of the December 22, 2000, Guidance Memo on H-1B Computer Related Positions” (03/31/2017).
(4) “PM-602-0151, Policy Memorandum, Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” (10/23/2017).
(5) International Entrepreneur Rule, 82 Fed. Reg. 5238 (Jan. 17, 2017).
(6) National Venture Capital Association v. Duke, Case 1:17-cv-01912 (D.D.C. Sept. 19, 2017), available at http://www.aila.org/File/Related/17091932.pdf
(7) “PM-602-0050, Policy Memorandum, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” (6/28/2018).
(8) USCIS to Expand In-Person Interview Requirements for Certain Permanent Residency Applicants, U.S. Citizenship & Immigration Services (Aug. 28, 2017), https://www.uscis.gov/news/news-releases/uscis-to-expand-in-personinterview-requirements-for-certain-permanent-residency-applicants.
(9) Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10283 (Feb. 25, 2015).
(10) Number of Approved Employment Authorization Documents, by Classification and Basis for Eligibility October 1, 2012 – June 29, 2017, U.S. Citizenship & Immigration Services, available at https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/BAHA/eads-by-basis-for-eligibility.pdf. (Note that some of these approvals include renewal applications).
MELISSA HARMS founded the Law Office of Melissa Harms in 2005, a full service business immigration law firm serving clients from around the world. She has advised multinational corporations, large public universities, private research entities, as well as small start-up ventures on a variety of immigration issues. Additionally, Ms. Harms has represented individuals in family-based permanent residence, naturalization, trader/investor, national interest waiver immigrant visa, and asylum applications and has been interviewed by the international press for her pro bono work. Ms. Harms earned her law degree from the University of Georgia where she served on the Editorial Board of the Georgia Law Review and graduated cum laude and her undergraduate degree from Duke University.