In the first year of the Trump Administration, immigration policies targeting undocumented immigrants, refugees and nationals of certain predominantly Muslim countries made the headlines.

Nonetheless, new policies also impacted employment-based immigration.  USCIS announced that in-person interviews will be required for all employment-based Adjustment of Status applicants and USCIS issued an unprecedented number of requests for evidence (RFEs), even for what used to be straightforward H-1B cases.

In 2018, employers should expect further scrutiny of USCIS petitions, broader enforcement (e.g., USCIS onsite visits), and rescission of some Obama administration regulations. The changes that are likely to impact the employment-based immigration community include:

1. Redefining “specialty occupation” to steer H-1B approvals toward higher-paid and higher-skilled foreign nationals.
2. Compelling employers to meet prevailing wage for higher salaried occupations (e.g., meet prevailing wage for software engineers as opposed to programmers).
3. Redefining “employment” and “employer-employee relationship” to make it more challenging for staffing companies to employ H-1B employees.
4. Removing H-4 dependent spouses from the class of foreign nationals eligible for EAD (Employment Authorization Document).
5. Disallowing or scaling back H-1B extensions beyond the 6-year limit based on priority date retrogression (per country limit backlog).
6. Scaling back the 2016 regulation that allows international students with STEM degrees to extend Optional Practical Training by 2 years.
7. Rescission of the International Entrepreneur Rule (IER).
8. More “administrative processing” to conduct background checks on visa (stamp) applicants (including non-Muslim applicants who have not visited an ISIS controlled territory). Administrative processing currently take 4 to 6 weeks.

Precautions to Take:

• #4 would be disruptive for H-4 employees and their employers. The likelihood of rescinding the H-4 EAD program appears high and employers should prepare for the possibility of having to terminate H-4 employees or petitioning for H-1B change of status for eligible employees.
• #5 is likely to be highly disruptive given many H-1B holders have waited for green cards in H-1B status for over a decade, have U.S. citizen children, own a home, etc. Precautions may include speeding up the green card process by applying in a non-backlogged category such as EB-5 (for India-born applicants), or EB-1 for those with exceptional qualifications.
• #8 is a factor to consider before international travel. In light of the possibility of a 4 to 6 week visa processing delay, those who must apply for a visa should make arrangement to work from abroad and for friends/family to look after their personal affairs.

To be Determined:

There isn’t enough information regarding #3 at this time. USCIS has closely scrutinized staffing and IT services companies’ cases since its 2010 memo “Determining Employer-Employee Relationship for … Third-Party Site Placements.”  It remains to be seen how the administration will further challenge IT services companies.