The Only Thing Certain is Uncertainty

Detail Of A USA VisaBy Frida P. Glucoft and David S. Rugendorf 

Workplace immigration law has been the focal point of increased anxiety and uncertainty because of various changes proposed by Executive Order. Discussions have heated up considerably in the offices of human resources professionals and personnel managers, in the break room, around the water cooler, as well as in the news media and on social media. Because the changes have not come in the form of formal regulatory changes through legislation, which require a prescribed notice and comment period (though those may soon be on the way), changes in enforcement priorities and how existing laws are interpreted create an unclear path about who will be impacted and when the new Executive Order priorities will be instituted.

What are these new priorities? At present they are best explained in Executive Order 13788.

On April 18, 2017, the President signed Executive Order 13788 “Buy American Hire American”, intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” The stated goal of E.O. 13788, by directing the Secretaries of State, Labor, and Homeland Security to propose new rules and issue guidance, is to protect the interests of United States workers in the administering of our immigration system, including through the prevention of fraud or abuse. We have seen this manifest itself in a number of areas, such as:

H-1B Visas

The Executive Order highlights the H-1B program and directs the agencies to focus on assuring that H-1B visas are awarded to the most-skilled and highest-paid beneficiaries. Accordingly, we have observed a dramatic increase in Requests for Evidence (“RFEs”) issued in a majority of H-1B lottery cap cases filed this past April and still pending. In addition, the same strict criteria is also being applied to change of employer H-1B visas and to H-1B visa extensions. The RFEs are long and require a great deal of documentation from the employer and the foreign national. In addition, since there is still no expedited processing of the H1B visa petitions (except for lottery H-1B visas and those filed on behalf of certain cap-exempt non-profit employers), delays are expected to continue in the adjudication process for many months.

These policy changes will also cause travel delays and, in some instances, cancellation of international trips. We have also been made aware of a trend in secondary adjudication and delays at the US embassies and consulates abroad, the agencies which issue visa stamps to enable individuals to return to the USA in valid work status.

The full impact of the executive order is yet to be determined as we await rules and regulations to be published by the various federal agencies, as well as policy memoranda or other official guidance in whatever form.

L-1 Visas

There has also been an upsurge in denials of both L-1A managerial and L-1B specialized knowledge visa petitions. Although the statistics have not yet been made available for the recent period, reliable sources which regularly monitor adjudicatory trends, as well as simple observation, confirms this fact. While strictness in the adjudications of L-1 visas has been the rule for some time now, we are currently seeing unprecedented enforcement issues as well. It has been reported that L-1 employers are receiving site visits while L-1 extension cases are pending. Immigration officers are said to come, in person, to check out the veracity of the claims in the L-1 petition. Given this, and the potential for the occurrence of site visits for other immigration purposes, it is probably a good idea for employers to develop a site visit protocol.

All employers who hire H or L visa aliens should have at least one or more person(s) on the business premises who is knowledgeable about immigration enforcement practices. This should be someone who has access to the company’s immigration counsel, and preferably has some understanding of the issues in business immigration law, or at the very least, a working knowledge of the substance of the company’s immigration filings. The contact should be someone who is level headed, who acts and speaks with confidence but also demonstrates the appropriate deference to the immigration officers. Of course, it is fundamental that immigration petitions should be truthful and that nothing discoverable on a tour through an employer’s premises should conflict with the facts as set forth in the petitions.

Moreover, the contact should be knowledgeable and firm, but also polite and friendly. It does not help to antagonize the officer(s), or otherwise create an adversarial atmosphere. If everything is truthful as is stated on the immigration forms, the job should be explainable in a clear and concise manner, communicating where the beneficiary’s physical workspace should be simple, and the work locations of other employees and company functions should be easily articulated. Most importantly, no one except for the designated individual or individuals should speak on behalf of the company and its management. The designated individual should also advise the immigration officers that the company has legal representation, and that immigration counsel should be notified if further questions or explanations are needed. The employee contact should also obtain the name and contact information of the site visitors in case any further contact is needed.

Conclusion

Business immigration is facing increased change and complexity, which provides fertile ground for anxiety. The uncertainty caused by this method of Executive Order makes it difficult for employers and employees, and even government personnel who are charged with enforcing the laws, to plan for the future and adequately prepare for the impact to business. At present we await rules and regulations to provide some guidance and details as it relates to future and currently pending petition filings.

Accordingly, it is important for employers to maintain a cool head, as panicking accomplishes little. We also recommend caution in believing unsubstantiated reports of changes to immigration laws and practices. Keep your paperwork and workspaces organized in case in-person enforcement should arrive. Employers should be prepared for these onsite visits and inquiries from various agencies charged with enforcement of US immigration laws. Preparedness and advance planning for these situations is the best policy.

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