In April 2017, three months after taking office, President Trump signed the “Buy American and Hire American” Executive Order, which confirmed that his administration would be taking a tough stance on business immigration, including the nonimmigrant work visa programs used by many American employers. The Executive Order itself did not put into action any substantive changes, but instead directed the agencies responsible for immigration—including those within the Department of Homeland Security and the Department of Labor—to propose new rules and reforms “to protect the interests of United States workers in the administration of our immigration system…” It also singled out the H-1B visa program, calling for initiatives designed to ensure that H-1B visas are awarded to only the most-skilled and highest-paid foreign workers.
While the “Buy American and Hire American” Order signaled that big changes were coming to the business immigration landscape, it provided almost no specifics. In the 13 months since, however, the picture has become clearer as the new administration has made a number of important policy changes to comply with the order’s mandate and promised that other changes are on the horizon.
In fact, USCIS Director Lee Francis Cissna recently provided an update on the measures being taken by his agency in its effort to comply with “Buy American and Hire American.” In a letter sent to Sen. Charles Grassley, the Chairman of the Committee on the Judiciary, Director Cissna first outlined a number of important policy changes that have already been implemented by USCIS or are currently in progress. These included:
- Publishing a policy memorandum designed to clarify the requirements relating to visa petitions filed for H-1B workers who will be employed at one or more third-party worksites. This new policy, issued in February 2018, means that employers will be required to comply with more rigorous documentation requirements and adjudication standards when petitioning for H-1B employees to work at client sites or other offsite locations.
- Setting up a dedicated email hotline for reporting alleged fraud and abuse in the H-1B system.
- Conducting more H-1B site visits and targeting H-1B dependent employers to verify that those employers are paying H-1B workers the statutorily-required salary.
- Expanding USCIS’s site visit program to include L-1B “specialized knowledge” worker petitions, initially focusing on employers who use L-1B workers at offsite locations.
- Releasing a policy memorandum instructing USCIS officers adjudicating nonimmigrant visa petitions to apply the same level of scrutiny to both initial petitions and extension requests. This memorandum, issued on October 23, 2017, rescinds USCIS’s previous policy which allowed adjudicating officers to give deference to a prior petition approval when adjudicating certain extension requests.
Director Cissna’s letter then laid out several other planned initiatives that will have a significant impact on employers who hire nonimmigrant workers. These planned changes include:
- Proposing a new regulation to remove H-4 visa holders (dependent spouses of H-1B workers) from the class of foreign nationals eligible for work authorization. This proposed change, which will require a public notice and comment period, would undo an Obama-era regulation that made certain H-4 visa holders eligible to work.
- Establishing an electronic registration program for H-1B cap petitions to allow USCIS to better manage the intake and lottery process for H-1B petitions.
- Implementing regulatory changes to revise the definition of “specialty occupation” for H-1B workers and to make other changes to the H-1B program. Although the specific proposed changes have not yet been announced, it’s a sure bet that these changes will only make it more difficult for employers to successfully sponsor H-1B workers.
- Drafting a proposed regulation to remove the International Entrepreneur Rule, another Obama-era regulation that was designed to allow certain foreign entrepreneurs to stay in the U.S. to establish and operate start-up businesses.
As these and other developments demonstrate, it’s clear that the Trump administration plans to take a hardline on business immigration. The policy changes that have been implemented or announced thus far are already chipping away at the ability of employers to successfully sponsor foreign nationals for nonimmigrant visas, with certain H-1B employers feeling the greatest impact.
Employers should watch to see how the planned regulatory changes play out and expect that there’ll be more to come. Stay tuned!