Tech Companies, Special Occupational Workers, and International Students Among the Many Affected by the (Mostly Negative) Changes Imposed by the Trump Administration

The Unwelcome Immigration Barrier Immigration Practitioner’s call “Trump’s ‘Invisible’ Wall”

Jeffrey Margolis recently gave a lecture to The Society of Human Resource Managers on this topic using a PowerPoint format. The first—and second—slides were entitled “Trump and Immigration:  The Good News.” Both slides were blank. (Yes, it’s bad, even for business cases…that’s why we refer to the “invisible” wall.)

That said, a few highlights, FYI:

1. H-1B—Professional Level Work Visas—mainly used by the high tech and financial services communities:  tightened criteria for H-1B approvals have been implemented, resulting in a more aggressive review system and a concomitant 41% increase in denials of new H-1B petitions. Even renewals—previously adjudicated as qualifying—are being re-scrutinized and in some cases extensions denied. The adjustments to the system also target the H-4, which allows the spouses of H-1B visa holders to obtain work. Other changes to the H-1B regulations include a pre-registration for H-1B petitions, which started in the fiscal year of 2020. A bit of good news, the revised selection order of the H-1B lottery is predicted to cause a 16% increase in the number of petitions available for holders of U.S. Master’s degrees.
2. Form I-9—US Employment Eligibility Form, must be maintained in a file at the employer’s HQ. Complicated form, often incorrectly or incompletely filled-out—even by employers who fully intend to abide by the law. These forms and files are subject to random audit by U.S. Immigration and Customs Enforcement (ICE). In fiscal year of 2019, the number of audits more than tripled. Penalties include fines and possible criminal charges for highly egregious cases. NOTE: I-9 penalties are not only levied when undocumented workers are found. Penalties are also levied for accepting facially inadequate documents, failing to complete I-9, failing to update or re-verify, and failing to have a properly completed I-9 on file within three days after work begins—the so-called 3-day rule.
3. Congressional Oversight of Immigration Policy.  With Republicans in the majority in the House there’s been little oversight activity in the past two years. Now, the whole picture is changing with Democratic control of the House Judiciary Committee and Immigration sub-committee. The volume of hearings is increasing and includes everything from separation of children from the parents at the border to immigrant entrepreneurs, making comprehensive immigration reform highly unlikely.
4. International Student enrollment declines with increasingly restrictive visa policies. Latest figures show a 4% decline, which reduces a schools’ resources for US students and may even end or restrict Optional Practical Training for STEM students.
5. NEW–Pre-screening of US citizens travel to Europe. Starting in 2021, U.S. Citizens traveling to Europe will be required to complete pre-travel automated screening and authorization. The ETIAS System does not have visa-like obligations, so there will be no need to go to a consulate or provide biometric data…as of now.

The invisible fence represents some real barriers for international business people, multi-national companies and their HR departments and immigration lawyers. The administration will continue to attempt to lock-in restrictions and compound delays in adjudication of cases and, overall make it more difficult for foreign-born individuals to study in, work in, or immigrate to America.

Dr. (Ok, Ok, so it’s Juris, not Medical) Margolis’s Practical Take Away: IMMunization: green cards for temporary workers and citizenship for green card holders. Upgrade your client’s immigration status to defend against the Trump onslaught.