Potential Immigration Changes in 2019


The Trump administration’s future immigration intentions were recently announced in their semi-annual Unified Agenda. The Unified Agenda lists possible regulations under development by federal agencies for the coming year. The announcement indicates the administration’s plans to impose tighter restrictions on employment-based immigration benefits, such as the H-1B, H-4, and Optional Practical Training (OPT) for F-1 students.

The agenda specifies the administration’s intent to make the following policy changes in connection with Trump’s “Buy American, Hire American” executive order:

  • H-1B Eligibility: Redefining what a “specialty occupation” is for H-1B visa purposes to “increase the focus on truly obtaining the best and brightest.” The proposal would also “revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” This includes “additional requirements to ensure employers pay appropriate wages to H-1B visa holders.” The rule would also impose additional restrictions on H-1B dependent employers that rely on large H-1B workforces and those employers who have H-1B employees working off-site.

  • H-1B LotteryRevising the H-1B visa lottery system to establish an electronic pre-registration program for cap-subject H-1B applicants.

  • H-4 Work Authorization: Elimination of the regulation that allows H-4 visa holders (spouses of H-1B visa holders) to apply for work authorization. The Trump administration has already proposed a rule to remove this Obama rule which has provided work permits to thousands of H-4 spouses.

  • Fee Increases:  Increasing USCIS filing fees for employers and applicants filing for employment-based immigration benefits (including H-1B registration fees) and international students and U.S. universities.

  • Periods of Stay for F-1 Students: Limiting the maximum periods of stay for F-1 students and other nonimmigrants.

  • Adjustment of Status: Changing the process and procedures for foreign nationals to adjust from nonimmigrant status to lawful permanent resident status.

  • International Entrepreneur Rule:  Eliminating President Obama’s International Entrepreneur Rule which allowed qualifying foreign startups and entrepreneurs to apply for U.S. work authorization to grow their startup and create jobs.

These announcements do not currently modify or rescind any of the above mentioned immigration programs, and any changes to immigration policy can only be accomplished through notice and comment of proposed rulemaking in the federal register. This means that individuals and companies that may be affected by potential policy changes will have an opportunity to submit comments to the government before the policy becomes effective. 

As always, individuals and employers who may impacted by any of these potential changes should contact us with questions on how to best prepare.

Winning The H-1B Visa Lottery

Starting April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2019. As in years past, if USCIS receives more than the available 85,000 H-1B visas in the first few days of April, they will use a computer-generated random lottery to select the petitions they will process. Based on the number of petitions received in the first few days of April last year (over 199,000) and the previous year (over 236,000), combined with the current market demand for high-skilled labor and reports of possible changes to visa programs in the future, many our anticipating that USCIS will receive over 200,000 H-1B petitions in the first few days of this April. 

Accordingly, time is running out for employers to timely prepare their H-1B petitions for submission to play in this H-1B lottery on April 2nd. Generally, it takes at least 10-14 days to prepare and file an H-1B petition, due to the prerequisite filing requirements of the Labor Condition Application (LCA), which takes up to 7 business days to certify. Therefore, if you are responsible for your businesses' immigration planning and processing and you have already identified your H-1B candidates, please initiate the H-1B visa process in the next two weeks to ensure it is timely filed. 

In light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, USCIS has confirmed that it intends for the H-1B filing process and procedures to remain the same as it has in previous years.  Nevertheless, as indicated by the massive increase of Requests for Evidence (RFE) and denials of H-1B petitions issued by USCIS over the past year, employers and foreign nationals should be prepared to evidence the following, in order to increase their chances of getting their visa petitions approved:

  1. Document the specific scope and educational requirements for the position to show that the position is one which requires a Bachelor’s degree as a minimum to enter the occupation.
  2. Review the prevailing wage rates for the occupation through the Department of Labor’s Wage Surveys to determine whether the wage level is appropriate for the professional position you are hiring for.
  3. Document the nexus between the foreign national’s degree and the occupation they will be hired for.

WATCH my conversation on how to overcome issues with H-1B RFEs

Needless to say, the H-1B visa petition can be a technical and cumbersome application to file.  Working with qualified counsel will help to ensure technical mistakes are avoided and that a comprehensive petition will have the best chance at winning in the H-1B visa lottery.  If you have any questions about the H-1B visa process, please don’t hesitate to contact me.

Visa Options For Foreign Entrepreneurs & Investors

International entrepreneurs have a variety of immigration options available to them to establish startup companies in the U.S.  While there is not yet a specific U.S. entrepreneur visa available, there are a number of visa options which allow entrepreneurs to start and grow businesses in the U.S.   This article will focus on a few (but not all) of the main visa options available to individuals to begin working for a startup in the U.S.

L-1 Intracompany Transferee Visa

Generally, the L-1 visa is available to executives and managers, working for a company abroad, that will open a new branch, affiliate, or subsidiary U.S. company.  The foreign worker to be transferred to the U.S. must have spent at least one continuous year out of the preceding three years working for the affiliated foreign company; obtain a physical premises for the new U.S. office; and within one year the U.S. enterprise should be able to support an executive or managerial position.  L-1 status is granted for a one year period, after which the company must demonstrate that it is doing business in order for the petition and worker’s stay to be extended beyond one year.  Extensions are available up to a maximum time in the U.S. of 7 years in L-1 status.

E-2 Treaty Investor Visa

This visa option is for business owners that wish to start a company in the U.S. and who want to actively manage and direct the operations of the business in the U.S..  In order to qualify for an E-2 Visa, you must either start or buy a business that you plan to run, and you must invest a certain amount of money in the business.  The actual investment amount depends on the type of business you start.  Additionally, the investment must create jobs (no specific number of jobs) for more than just you and/or your family.  Finally, you must be a foreign national from one of the treaty countries (see list) (note that India and China are not on this list).

O-1 Extraordinary Ability Visa

This visa option is available to entrepreneurs with extraordinary talents in the sciences, arts, education, or business.  Generally, an entrepreneur able to demonstrate that (1) there are published articles about their business/skills in major media; (2) they will receive a high salary evidenced by contracts; and (3) they will be employed in a critical or essential capacity for organizations with distinguished reputations, may be able to obtain this visa to work for their own start-up company.  The full list of qualifications to be proved can be seen here.  This visa is available for 3 years initially with one year extensions thereafter.  

EB-5 Immigrant Investor Visa 

The EB-5 immigrant visa is the only option that provides a “green card” (i.e. U.S. permanent residency) directly.  The EB-5 visa is a great visa option if you have a large amount of capital (either $500,000 or $1,000,000) that you would like to invest in a new commercial enterprise.  Generally, to get an EB-5 visa you must: (1) invest or be actively in the process of investing either $1,000,000 USD in a commercial enterprise or $500,000 USD in a targeted employment area (an area that has experienced unemployment of at least 150% of national average rate or a rural area); (2) show that the funds come from a legitimate source; (3) prove the entire amount of the investment is active or at risk (this means that you cannot just be thinking about buying a business and you have to actually put capital up that could be lost); (4) make the investment in a “new” or “existing business enterprise” (this allows you to create your own business or buy one); and (5) demonstrate that the investment directly or indirectly results in the creation of 10 full time jobs.

As the U.S. realizes the need to enhance the immigration options for entrepreneurs and investors, there continues to be debate centered around options for investors and entrepreneurs.  To learn more, please contact our office and visit USCIS website on entrepreneur pathways.