More change, more scrutiny, more denials and more backlogs – this sums up 2018 in the immigration and global mobility field. As will be highlighted below, the Trump administration continued to radically alter established U.S. immigration rules and principles — and both Brexit and the General Data Protection Regulation (GDPR) added more sweeping shifts to a year of high-magnitude change. Outlined below are several (but not all!) hot button immigration and global mobility issues to reflect on as 2018 comes to an end and we look towards 2019.
2018 began with a government shutdown and will end with a government shutdown. As we covered in January, business immigration is affected in several ways during a government shutdown. The current December 2018 shutdown is only a partial shutdown, and not as many immigration services are affected. Specifically, the Department of Labor (DOL) is not affected with the current shutdown, as an appropriations bill had been signed in September funding the DOL through September 2019.
I-9 Compliance and Enforcement
According to Immigration and Customs Enforcement (ICE), worksite investigations rose 300 percent in 2018, which included 5,981 audits of employers’ Forms I-9 (compared to 1,360 in 2017). Nationwide sweeps and arrests of undocumented workers made front-page news most months in 2018, with more worksite enforcement activity expected to continue in 2019. Employers have sought electronic I-9 systems as a means to improve I-9 compliance, but that approach is not without risk.
Buy American Hire American (BAHA) Executive Order
In April 2017, President Trump signed the “Buy American Hire American” executive order. Although this EO was signed back in 2017, the full impact on H-1B work visas and other areas of immigration was not truly felt until 2018. The heightened scrutiny and increase in denials of H-1B work visas, L-1 work visas and permanent residence applications (to name just a few of the business-based immigration applications affected) has significantly impacted businesses and foreign national employees in 2018.
On December 3, 2018, United States Citizenship and Immigration Services (USCIS) issued a proposed rule requiring employers seeking to file H-1B cap petitions (including those filed under the U.S. master’s degree exemption and the regular cap) to register in an electronic system during a designated registration period. The rule, which we assessed in a December article, would also change the process by which USCIS counts H-1B petitions. The new process would run the lottery/registration for all beneficiaries and would then select from the petitions seeking the U.S. master’s degree exemption. USCIS expects that changing the order will result in a higher number of U.S. master’s degree petitions being selected. Comments to this proposed rule are due on January 2, 2019. Although it remains unclear, it is highly unlikely that this new H-1B preregistration system will be ready to go as of this year’s H-1B cap filing season which starts on April 1, 2019.
Although a final Brexit deal has not yet been approved in Parliament, the U.K. is poised to leave the European Union (EU) on March 29, 2019. On December 19, 2018, the U.K.’s Home Office and U.K. Visas and Immigration issued a White Paper describing the government’s post-Brexit plan to introduce a single, skills-based immigration system designed to end free movement and ensure full control of the border. The proposed changes to the U.K. immigration system are expected to become effective in January 2021 following a post-Brexit Implementation Period. During the Implementation Period, the U.K.’s EU Settlement Scheme will be implemented while other pre-Brexit immigration rules will continue to apply. More information on the proposed changes to U.K. immigration system can be found in our summary of the December 19 White Paper.
The EU General Data Protection Regulation (GDPR) became effective on May 25, 2018 and, with its wide extra-territorial scope, now becomes the international bar to meet for the processing and protection of personal data. With limited exceptions, organizations must request informed consent from individuals before processing their personal data, and individuals have the right to know whether their personal data is being processed, where and for what purpose. They likewise have a right to be forgotten. Breach notification within 72 hours of becoming aware of the breach is now mandatory in cases in which the breach is likely to “result in a risk for the rights and freedoms of individuals.” Organizations that violate the GDPR can be fined up to 4 percent of annual global turnover or €20 Million (whichever is greater) as a maximum penalty for the most severe violations. Fines ranging from €4,800 to €400,000 have been issued in 2018. There will be more to come.
Restrictive Policy Memos from USCIS
On July 5, 2018, USCIS issued memo PM-602-0050.1, “Updated Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens,” or the “NTA Memo.” This policy memo drastically changes the types of cases for which USCIS will issue a Notice to Appear before an immigration judge. An NTA is the charging document that initiates immigration court proceedings in front of a judge who will determine if the individual should be removed (i.e., deported) from the U.S. Once an NTA is issued, the recipient may not leave the U.S. without permission. A person who receives an NTA and does not attend the proceeding will be ordered removed in absentia and will be barred from reentering the U.S. for five years. On September 28, 2018, USCIS announced that the policy memo would not affect employment based cases at this time. USCIS is implementing the policy in phases. Current cases affected include Form I-485 and Form I-539.
On July 13, 2018, USCIS issued a second policy memo giving USCIS adjudicators the authority to deny an application, petition or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). As we detailed in our August update on the memos, this was another drastic policy change that has and will continue to result in more cases being denied by USCIS. This memo went into effect on September 11, 2018.
Uptick in Denials and Requests for Evidence (RFEs) From USCIS
With the combination of the implementation of BAHA and the issuance of the restrictive policy memos from USCIS, 2018 brought more RFEs, denials, appeals and court cases on business immigration cases. No type of work visa or permanent residence case was immune from the scrutiny — but it was clear as the year went on that a main target of USCIS and the Trump administration continues to be the H-1B work visa. In 2018, the following statistics from 2017 were released from the National Foundation for American Policy:
- RFE rate for H-1Bs for Q4 2017: 69 percent
- RFE rate for H-1Bs for Q3 2017: 23 percent
- Denial rate for H-1Bs for Q4 2017: 22.4 percent
Once 2018 statistics are prepared and released, these numbers will only increase. Specific topics for H-1B RFEs and denials included the H-1B specialty occupation standard, qualifications of the H-1B foreign employee including discounting degrees (such as engineering) that had been accepted on previous petitions, alternate salary surveys, LCA related to the job opportunity in the petition, availability of work, third party placement and others. USCIS also asked for more information on the ability to pay and previous experience for I-140 petitions and continued to request more information on L-1B specialized knowledge, L-1A intracompany managers and executives, multinational manager permanent resident cases and more. Most cases are receiving RFEs — some are approved and some denied after the response is filed. If denied, many individuals will need to leave the U.S. immediately, especially if their status has already expired and they have been remaining in the U.S. and working under the 240 day rule.
Suspension of Premium Processing for H-1B Petitions
As in past years, USCIS suspended premium processing for H-1B cap petitions during the April filing period. However, USCIS expanded the scope of the suspension with an effective date of September 11, 2018 to reduce H-1B processing times and implement the following goals: (1) processing long-pending petitions; (2) being responsive to petitions with time-sensitive start dates; and (3) prioritizing adjudication of extension of cases that have been pending for nearly 240 days. The H-1B petitions affected by the suspension include cap-subject H-1B petitions, all other H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings), change of employer filings, extensions in which there has been a change in employment and amended H-1B petitions. H-1B petitions not affected so that premium processing has been (and remains) available include H-1B petitions for extension filed exclusively at the Nebraska Service Center that are a continuation of previously approved employment without change with the same employer; and cap-exempt petitions filed exclusively at the California Service Center. USCIS expects the suspension to last until February 19, 2019 and highlighted that expedited processing based on USCIS expedite criteria remains available. Premium processing for other petition types remains available.
Travel Ban 3.0, as it is known, remains in effect for Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia, with specific visa restrictions for nationals of each country. Although waivers exist that allow individuals to gain visas despite the ban, very few have been granted, and travel for nationals of these countries remains restricted. The administration also issued a memo requesting that U.S. consulates and embassies around the world perform enhanced vetting of all visa applicants. The new supplemental Form DS-5535 (only required of some visa applicants) seeks information on social media handles and other information on travel over the past 15 years, including source of funds. Finally, in other travel news, the legalization of marijuana and the growth of related industries in Canada and some states has posed immigration challenges for non-citizens, as marijuana remains illegal at the federal level. Workers in the marijuana industry face exclusion and other penalties if seeking to enter the U.S. for reasons related to the marijuana industry.
Temporary Protected Status (TPS)
The Department of Homeland Security (DHS) sought to terminate Temporary Protected Status (TPS) from several countries, including Sudan, Nicaragua, Haiti and El Salvador, in 2018 due to updated country conditions. As of October 3, 2018, that termination has been enjoined by a federal court, pending resolution of litigation that claims DHS violated the Equal Protection Clause and the Administrative Procedures Act in deciding to terminate TPS for those countries.
Deferred Action for Childhood Arrivals (DACA)
Deferred Action for Childhood Arrivals was rescinded by President Trump in September 2017. In January 2018, the U.S. District Court for the Northern District of California ordered a preliminary injunction to partially stop the rescission. In response, USCIS started accepting renewal applications again on January 13, 2018, and is currently accepting renewal applications. No new DACA applications are being accepted and DACA recipients cannot file for Advance Parole. The Department of Justice (DOJ) filed writs of certiorari before judgment with the U.S. Supreme Court in November. A previous writ filed in January 2018 was denied.
F-1 Students / New Unlawful Presence Memo
In addition to H-1B workers, F-1 students were also a key target of additional scrutiny from the Trump administration in 2018. On May 10, 2018, USCIS issued a policy memorandum outlining how the government would be changing the calculation of unlawful presence for those in F-1 student, J-1 exchange visitor and M-1 vocational student status. After receiving and reviewing comments to this new rule, USCIS issued and implemented final guidance on unlawful presence for students and exchange visitors with an effective date of August 9, 2018. This new unlawful policy memo superseded prior more lenient policy guidance issued in 2009 and incorporated in the Adjudicator’s Field Manual. Specifically, the new policy memo now states that F, J and M nonimmigrants can start accruing unlawful presence based on unlawful activity (e.g. failing to maintain status, working without authorization, no longer pursuing course of study, etc.) without a formal finding by USCIS or an immigration judge. Accruing over 180 days of unlawful presence can lead to a three-year bar from returning to the U.S. and accruing 1 year of unlawful presence can lead to a 10 year bar. F, J and M nonimmigrants must be highly vigilant regarding their status to avoid such harsh consequences. Several colleges have filed lawsuits challenging this new policy. These lawsuits are in the initial stages of litigation.
Pursuant to a May 26, 2015 rule, certain H-4 visa holders may obtain work authorization and apply for employment authorization documents from USCIS. Under current rules, H-4 dependents whose spouses hold H-1B status and either have an approval of an I-140 immigrant visa petition or are beyond their six-year period of H-1B status are eligible for this work authorization. Not all H-4 spouses are eligible for an H-4 EAD. Litigation to overturn the H-4 EAD rule has been ongoing pursuant to the court case of Save Jobs USA v. U.S. Department of Homeland Security in the U.S. District Court for the District of Columbia. Although this case has been held in abeyance for over a year based on rule-making coming from DHS, on December 17, 2018, the court removed the case from abeyance, scheduled new briefing and allowed an immigrant rights group to intervene to become part of the court case. The Trump administration has repeatedly announced its intention to terminate H-4 EAD work authorization. Recent statements indicate that such a termination rule is currently undergoing review by the Office of Management and Budget (OMB). However, it is unclear when or how a termination of the H-4 EAD rule will result.
Permanent Residence, Including PERM Applications and I-485 Employment-based Interviews
Although the employment-based permanent residence process remained fairly quiet over the past year, we continued to see changes in the adjudication of I-485 adjustment of status applications. Although the new policy of implementing I-485 interviews for all employment-based cases was outlined in late 2017, most of the I-485 interviews under this policy started to be conducted in early 2018. Many of the questions asked during these I-485 interviews concerned current and prior status. Most cases are not adjudicated and approved until after the interview has been conducted and many cases were sent back to the National Benefits Center (NBC) when EB-1 and EB-2 priority dates retrogressed. In October, USCIS issued an updated policy memorandum about I-485 medical examinations with an effective date of November 1, 2018. This memo has updated the validity period of the Form I-693 from one year to two years from the date of the civil surgeon’s signature, and has also indicated that Form I-693 is valid only when the civil surgeon signs it no more than 60 days before the date an applicant files the petition for the underlying immigration benefit.
For PERM labor certification applications, we continued to see slower adjudication of prevailing wage requests (four-plus months on average) and faster adjudication of overall PERM applications (about three months) once filed with the DOL. As of end of Q3 2018, 80,864 PERM applications were received by the DOL with 78 percent under analyst review and 15 percent under audit review. There were increased issues with PERM employer account registration in 2018. A good practice pointer for this issue is to have the IRS FEIN letter ready in order to respond to a Request for Information on business existence.
Visa Bulletin and Permanent Residence Backlogs
The Department of State releases the Visa Bulletin around the middle of each month to provide visa number availability for the following month. For much of recent history, the EB-1 category has been current for applicants from all countries, including countries typically backlogged in other countries. In April 2018, cut-off dates were implemented in the EB-1 category for applicants born in India and China. In August 2018, these cut off dates spread to all countries. These backlogs have extended, even into the new fiscal year when additional visa numbers are typically available. Cut off dates in January 2019 have remained in the EB-1 category for all countries.
Each month, the Department of State also issues a second chart – the Dates for Filing chart. Each month, USCIS indicates which chart they will use. In the past, the Final Action chart was used. In September 2018, USCIS announced they would use the dates for filing chart. This has extended to date, although there are indications this will change in the near future. This means that applicants can file their I-485 applications, even though their priority dates are not current.
Outlook for 2019: The Silent Wall
As outlined above, although BAHA was issued in 2017, we did not start to see the full impact until 2018. This is what we will continue to see with BAHA, as well as with the several policy memos (RFEs, Denials, NTA, F-1 Unlawful Presence) that were issued in 2018. USCIS will continue to implement these and other restrictive immigration policies which impact U.S. employers and their foreign national employees. Although the mainstream media focuses on the border wall and other immigration issues of interest to the general public, U.S. employers and their foreign national employees will continue to be impacted by this silent wall of heightened scrutiny, denials and backlogs from USCIS, DOL, DHS, CBP and the State Department in its processing and adjudication of work visas and permanent residence applications.
As we kickoff 2019, H-1B work visas will continue to be a focus of the Trump administration. USCIS will review comments that are due on January 2 and will issue a final rule on the H-1B cap preregistration process. Preparations must also start for the H-1B cap filing season whether or not the new preregistration process is in place by April 1.
Please join our team for a free webinar on January 24: Hot Topics in U.S. Business Immigration – H-1B Visas, Getting Ready for H-1B Cap Season and More. More information and the invitation to be released in early January.