The Future for U.S. Work & Student Visa Programs Under Trump’s Next Executive Order

In follow up to last week’s Executive Orders, President Trump may be gearing up for his next round of Executive Orders which look to tighten U.S. work visa programs (including the H-1B visa), impose stricter limitations on foreign students, eliminate the International Entrepreneur Rule, and enact measures that will severely curtail the options for U.S. employers (especially in the tech sector) to attract the smartest and most innovative minds to our country. These proposed rules do not appear to suspend or terminate any foreign national’s current work authorization or visa status, but it does direct the Department of Homeland Security (DHS) to review all immigration regulations that allow foreign nationals to wok in the United States. Let’s look at what this could mean for visa holders, employers, and all foreign travelers to the U.S. in the future:

How will this impact the H-1B work visa?

The Executive Order does not propose immediate changes to the upcoming (April 3, 2017) H-1B visa program, but it does indicate the administration’s intent to revise the H-1B work visa lottery system in the future to prioritize applications for those who are paid higher wages and/or have advanced education. 

How will this impact the F-1 OPT student programs?

The Executive Order directs DHS to “reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, … and improve monitoring of foreign students.” While this would seem to indicate that steps will be taken to curtail current Optional Practical Training (“OPT”) programs available to F-1 students, it is not clear how DHS will modify the regulations.

How will this impact current visa-case processing and/or Green Card priority dates?

The Executive Order directs DHS to “restore the integrity of employment based visa programs to better protect U.S. and foreign workers” affected by those programs. While this guidance is vague, this could signal an increase in Requests for Evidence and Notices of Intent to Deny in immigration cases, as immigration officers may begin to apply stricter adjudication standards. This may also mean the introduction of new employer obligations as it pertains to recruiting and/or prevailing wages. Any changes to the Visa Bulletin system could result in a retrogression in Visa Bulletin priority dates.

How will this impact the International Entrepreneur Rule?

While the proposed Executive Order does not single out the recently published International Entrepreneur Rule (set to go in to effect this summer), it does call for the elimination of any use of parole that “circumvents statutory immigration policy,” which essentially would end the rule.

How will this impact L-1 intra-company transferee visa holders?

The Executive Order directs DHS to conduct site visits to all places where L-1 visa holders (international executive and managers) work, including third-party worksites. It also directs DHS to begin conducting site visits for all visa categories within two years.

How will this impact business / tourist (B-1/B-2 visa) visitors?

The Executive Order directs DHS to clarify the types of activities that are and are not permissible for B-1/B-2 visa visitors. Individuals entering the U.S. on B-1/B-2 visitor visas, should anticipate more comprehensive scrutiny at all ports-of-entry.

 

These Executive Orders also direct the Department of Labor to investigate more abuses of work visa categories, and require more employers seeking to sponsor foreign workers to participate in the E-Verify employment authorization program.

Businesses, foreign workers, and international students considering filing for an H-1B work visa this year should begin preparing their H-1B visa petitions NOW. Demand for H-1B visas on behalf of foreign employees is expected to reach record levels this year. Due to lengthy prerequisite filing steps which must be completed before the H-1B petition can be submitted to USCIS on April 3rd, employers should begin preparing their petitions NOW to ensure they are ready on time.

Employers, foreign nationals, and international students who may be impacted by changes to any of these proposed regulations should contact an Attorney immediately to begin evaluating legal strategies.  If you have any other questions, please contact me.

New Requirements for EB-2 National Interest Waiver Green Card

Last month, U.S. Citizenship & Immigration Services (USCIS) announced new, less subjective, requirements for foreign individuals seeking U.S. lawful permanent residence (“green card”) under the EB-2 National Interest Waiver (NIW) category.  The NIW category allows foreign nationals in the second employment-based immigration category to bypass the lengthy and sometimes difficult “labor certification” process, if they can show that their immigration to the U.S. is in America’s “national interest.”  

In order for a foreign national to prove “national interest” under the new criteria, he or she must demonstrate that:

  1. the proposed endeavor has both substantial merit and national importance;
  2. he/she is well positioned to advance the proposed endeavor; and
  3. on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

In order to prove these criteria, the foreign national will have to show their work has national or global implications.  One example of this can be proof that the foreign national’s work “has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area…”.  The applicant will also have to show that he/she is able to succeed with their plan by demonstrating that they have the ”education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals."  Lastly, the foreign national will have to prove that “in light of the nature of [their] qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification."  

This decision is fantastic news for U.S. employers, international entrepreneurs, startups, and professionals, and provides greater flexibility for foreign nationals seeking to qualify for EB-2 National Interest Waivers.

For more information, feel free to contact us.

USCIS Announces New Visa Bulletin System for Employment-Based and Family-Sponsored Permanent Residence

U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS) have announced that beginning with the October 1, 2015 Visa Bulletin, USCIS will be following a new system for determining immigrant visa availability for applicants waiting to file for employment-based or family-sponsored permanent residence.  This new system will allow eligible foreign nationals to file an application for adjustment of status to permanent residence before an immigrant visa becomes available to them; however, the application for adjustment of status still cannot be approved until an immigrant visa becomes available (i.e. the "priority date" becomes current).

Previously, in order for foreign nationals to apply for adjustment of status to permanent residence, individuals would have to wait until their priority date was listed as current in the monthly Visa Bulletin, which for most employment-based applicants would be the filing date of their PERM labor certification application.  That date would be considered current if it was prior to the cut-off date listed in the monthly Visa Bulletin for the individuals country of chargeability and employment-based preference category.

Under this new system, USCIS will begin accepting applications to adjust status to permanent resident according to a new Visa Bulletin filing date chart, which will establish two separate cut-off dates: 

  • “Application Final Action Dates” (the date when visas may finally be issued); and 
  • “Dates for Filing Applications” (the earliest date when an applicant may be able to apply).

Foreign nationals with qualifying priority dates according to the “Dates for Filing Applications” chart will be able to file their applications to adjust to permanent resident status.  While the foreign national will not yet be eligible to receive permanent residence until an immigrant visa becomes available according to the “Application Final Actions Dates” chart, this new ability to actually file the adjustment application will allow qualifying individuals and their dependents to be eligible to apply for employment authorization (EAD card) and travel documents (Advance Parole), while waiting for their “Application Final Actions Date” to become current.  Additionally, certain individuals may be eligible for I-140 Immigrant Visa Petition “portability” once their adjustment of status application has been pending for more than 6 months, which will provide many individuals with greater employment mobility.  

While the adjudication of all I-485 applications to adjust status will still be subject to the same per-country and per-category quotas, and respective visa backlogs (especially for immigrants from India and China waiting under the employment-based categories), this new policy will provide immigrants with benefits while they wait for their immigrant visa “Application Final Actions Date.” 

This Visa Bulletin change acts upon the recent White House report on “Modernizing & Streamlining Our Legal Immigration System for the 21st Century” to provide greater certainty to foreign nationals and their families seeking permanent residency.

DOL Outlining Review of PERM Labor Certification Program

The U.S. Department of Labor (DOL) has announced its plans to initiate a review of its PERM Labor Certification Program, in accordance with President Obama's recent Executive Action announcement to reform the U.S. immigration system.  As part of its review, DOL will seek input from the public on how its current regulations can be modernized to be more responsive to changes in the U.S. labor force.  DOL will be seeking input in the following areas:

  1. Options for identifying labor shortages and surpluses and methods for aligning domestic worker recruitment requirements to those shortages and surpluses.

  2. Methods and practices to modernize U.S. worker requirements.

  3. Processes to clarify employer obligations to ensure PERM positions are open to U.S. workers.

  4. Ranges of case processing timeframes and possibilities of introducing a premium processing program.

  5. Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

The Benefits of Obama’s Executive Order for Employment-Based Workers & Entrepreneurs

Amongst the details of President Obama’s executive order to improve the U.S. immigration system, we expect to see improvements affecting employment-based immigrants and entrepreneurs.  These improvements may include:

  1. The ability for employment-based immigrants to apply for adjustment of status (“green cards”) before an immigrant visa number is available for them under the annual immigrant visa quota;
  2. Increases in the employment authorization periods for STEM Optional Practical Training (OPT) graduates;
  3. Improvements to the PERM labor certification program for possibly “premium processing” and more modern recruitment methods and media;
  4. Employment authorization for H-4 spouses of H-1B holders;
  5. Guidance on L-1B specialized knowledge professionals;
  6. Guidance on the National Interest Waiver (NIW) program by entrepreneurs, inventors, and innovators;
  7. Parole opportunities and work authorization for entrepreneurs and inventors