Immigration Law Changes in 2017: The First Six Months

Immigration issues have taken center stage for the first six months of the Trump administration. From the travel ban (and revised travel ban) to the most recent Executive Order, Buy American and Hire American, the administration is taking steps to realize President Trump’s campaign promises. Let’s start with some changes that were in the works during the Obama Administration.

The Final Rule affecting many highly skilled foreign workers took effect on January 17, in an effort to retain them in the U.S. workforce. One of the provisions affecting the majority of employers is the expansion of automatic extensions for certain Employment Authorization Document (EAD) categories. These categories are: (a)(3), (a)(5), (a)(7), (a)(8), (a)(10), (c)(8), (c)(9), (c)(10), (c)(16), (c)(20), (c)(22), (c)(24), and (c)(31). These individuals are eligible for an automatic extension of up to 180 days, provided that the extension application was submitted—requesting the same category—prior to the current EAD expiration date. Temporary Protected Status beneficiaries continue to receive automatic extension periods as published in the Federal Register.

On January 22, the new version of Form I-9 became effective. The new “smart form” includes features that will allow the employee and the employer to complete an I-9 either on the computer, on paper, or with a combination of the two. The smart from is designed to prevent individuals from inadvertently omitting required information. U.S. Citizenship and Immigration Services published a new I-9 Handbook for Employers in conjunction with the new Form I-9 with additional clarification on documenting automatic extensions for certain Employment Authorization Document categories.

Shortly after inauguration, President Trump signed three Executive Orders on January 25 and January 27: Protecting the Nation from Terrorist Attacks by Foreign Nationals, Enhancing Public Safety in the Interior of the United States, and Border Security and Immigration Enforcement Improvements. These Executive Orders included the infamous travel ban on citizens of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen; construction of the U.S./Mexican border wall; and setting enforcement priorities, including worksite compliance enforcement actions.

On March 6, President Trump signed a fourth immigration-related Executive Order, Protecting the Nation from Foreign Terrorist Entry into the United States. This new Executive Order revoked one of the previous Executive Orders with revisions on the travel ban. This Executive Order was first blocked by the U.S. District Court for the District of Hawaii. The U.S. District Court for the District of Maryland followed suit, issuing a nationwide preliminary injunction prohibiting the enforcement of the travel ban. On May 25, the Fourth Circuit Court of Appeals affirmed the district court’s issuance of a nationwide preliminary injunction.

On the first day of the Fiscal Year 2018 H-1B filing period, USCIS issued a memorandum regarding its adjudication policies on H-1B computer-related occupations, especially for the computer programmer positions. This memorandum indicated that the petitioner may no longer rely on the Department of Labor’s Occupation Outlook Handbook (OOH) to show that a computer programmer position is an H-1B specialty occupation where a bachelor’s degree is a typical entry requirement within the industry. The OOH has been the benchmark of how USCIS determines whether an occupation normally requires at least a bachelor’s degree. Going forward, the petitioner must present additional evidence to show how the position meets the statutory and regulatory requirements of specialty occupation, even though the OOH confirms the industry norm is to require at least a bachelor’s degree for the proffered position.

On April 3, USCIS announced additional measures to detect fraud and abuse of the H-1B program. This includes USCIS taking steps to verify the employer’s basic information, focusing on site visits of H-1B-dependent employers (employers with a high ratio of H-1B workers), and reviewing employers that places H-1B workers at another company. These measures signify the administration’s attempt to curtail, and perhaps discourage, the use of H-1B by IT consulting companies.
Shortly after the conclusion of the Fiscal Year 2018 H-1B filing, President Trump issued an Executive Order, Buy American and Hire American, directing government agencies to review policies relating to the H-1B visa program. The government agencies involved are the Department of Labor, the Department of Homeland Security, and the Department of State. These agencies are tasked to recommend changes to the H-1B program that would prevent the displacement of U.S. workers and to reform the program so that H-1Bs will only be awarded to the most-skilled or highest-paid foreign workers.

Finally, let’s review the result of the Fiscal Year 2018 H-1B filing season. Each federal fiscal year, there are only 85,000 H-1Bs available, of which 20,000 are reserved for individuals with an advanced degree from a U.S. higher education institution. The filing season began on April 3 and ended on April 7 this year. USCIS received approximately 199,000 applications this year, requiring it to select 85,000 cases by using the randomized computer generated lottery. The total number of submissions dropped over 18.5 percent from last year. It is unclear what caused this decline, but some have attributed it to the political uncertainty on immigration issues.

If you have questions about immigration law, such as visa options for foreign candidates, or concerns about I-9 and E-Verify, please visit our website, MSEC.org, or send us an email at immigration@MSEC .org.