• International Entrepreneur Rule (Parole) Suffers the Trump Effect

    The U.S. Citizenship and Immigration Service officially released its notice to delay the implementation of the International Entrepreneur Rule to March 14, 2018.  The Notice seeks public comment on the prospect of rescinding the plan.

    Had the plan been left to go live on July 17, 2017 this year, entrepreneurs seeking to remain in the U.S. who were poised start hiring U.S. workers could stay in the U.S. to run their enterprises for 30 months.  If their start-ups were successful during that time period, they could renew for an additional 30 more months.  They could bring their spouses and children to the U.S. to develop their business and expand their operations.  This program would have been the closest solution to the lack of a start-up visa the last five sessions Congress have failed to pass into law.

    Meanwhile, Canada, Australia, the United Kingdom, Chile, Brazil, France and many other countries are all too eager to provide start-up packages for entrepreneurs willing to relocate their new endeavors there.  Though, the reality is that there is only one Silicon Valley and the start-up community is inherently different and unique to the Bay Area.  Many entrepreneurs come to the Bay Area to make connections in hopes of being the next big unicorn.

    It’s disappointing that the Notice that was published today, fails in an epic way, to explain exactly what aspects of the International Entrepreneur Rule would have a significantly negative impact on job creation or security in the U.S.  Rather, the Service explains that logistically, it would be unfair to expend USCIS resources beginning July 17th if the rule were to be ultimately scrapped down the road.  Unsurprisingly, the Trump Administration remains conveniently silent on this matter.

    One can only hope that a newer, better International Entrepreneur Rule will take it’s place but if the rewrite of the current Health Care bill is any indication of progress, we’re in for a long ride!

  • Trump Enjoys Partial Victory in Travel Ban

    Yesterday, the U.S. Supreme Court issued a decision to temporarily allow limited portions of President Trump’s Travel Ban to remain in effect.  Individuals who fail to demonstrate a “bona fide relationship with any person or entity in the United States” would be temporarily blocked from receiving a visa if they are citizens or nationals of the six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). Bona fide relationships include individuals who are coming here for school, for work, or have substantial connections to existing family members in the United States.

    What does this mean for folks with no previously established connection to family, school or work in the U.S.?  If they are nationals from any of the above countries, there’s a good chance their visa applications would be halted for the time being.

    The unsigned Supreme Court opinion also provides a glimpse into the near future into the direction the Court may lean when making a final decision on the constitutionality of the President’s Executive Order.  The Court will hear oral arguments later this October but in its recent opinion yesterday, it indicated agreement with the lower courts so far.  If the travel ban remains in effect at that time, we’ll see a real show-down between the President and the Supreme Court. Stay tuned!

  • Executive Order on H-1B Signed Despite Decreased H-1B Petitions Filings

    On April 17, 2017, USCIS announced it received just under 200,000 H-1B petitions.  Speculation is circulating this year as to why the significant decrease in H-1B petitions.  The most likely reasons are probably the most obvious: a shift in our economy and a shift in how companies are conducting business.  Notwithstanding, the President still signed an Executive Order yesterday highlighting the need to reform the H-1B program.

    Shift in Our Economy & Business Practices

    It’s no surprise that since the November election, the protectionist rhetoric stemming from the White House has been strong and increasing in volume.  No doubt this has had an effect on not just foreign job seekers, but also on U.S. companies considering how to balance their global workforce.  Should they stay in the U.S. and continue to struggle to hire high-skilled workers amidst this anti-immigrant sentiment coming straight from the administration?  Or should they develop subsidiaries in immigration-friendly countries (like Canada) and move a good portion of their workforce there, resulting in a loss of jobs in the U.S.?

    On the other hand, market forces may also be at play, forcing a significant dip in the number of H-1B petitions this year.  This may well be the harbinger of an economy that is downshifting gears.

    Executive Order “Buy American Hire American”

    Despite the changes in our economy, we hear the same resounding sentiment from this Administration: the H-1B Program Needs to Be Revamped.  Of course, anyone who knows anything about the H-1B program would agree; but many can’t agree on how to revamp the program.  Yesterday’s Executive Order “Buy American Hire American”, while grandiose in its release, lacked substance in its execution.  The order merely instructs various federal agencies to conduct research and make recommendations on changes to the program, as soon as possible.  In other words, a big snoozer, if you ask me!

    The interesting irony is that the company that hosted the signing of the Executive Order, Snap-On Inc., is actually a great example of how successful the H-1B program can actually be.  In fact, it is representative of many U.S. employers who employ a small fraction of high-skilled foreign workers as part of its U.S. workforce, in order to continue to innovate and grow.

    Almost 1,500 economists recently banded together to sign a letter about the critical benefits that immigration brings to the U.S.  This, coming from experts in how our market forces work and what will make our country prosperous!  And yet… it seems the cry has gone unheeded.

     

  • Can President Trump Unilaterally Change the H-1B Program?

    There’s a lot of chatter about changes to the H-1B program much of which are based on rumors and not facts; these include a rumor about a draft Executive Order that would alter this popular visa program, and various statutes introduced by Congress to revise the H-1B program.  However, as of today, nothing has actually changed about the H-1B program.  In fact, USCIS will be accepting H-1B petitions for the lottery this year starting April 3, 2017.  That’s less than a week away.  So why all the confusion and chatter?

    There’s uncertainty because there’s a grave lack of understanding as to how our immigration rules work, and what powers a President may have to change existing H-1B laws.

    Why the Law Matters

    The H-1B visa’s existence is because of a statute.  Congress passed multiple bills in the last century concerning immigration that eventually became laws of our land.  The last iteration on H-1B visas was revised in 2004, and provided for how many H-1B visas were to be issued, what types of fees would be paid, and what wage requirements would need to be paid to foreign workers.

    If the H-1B visa program exists because a statute was passed and signed into law, then the program shall too be altered or cease to exist by the same method.  Hence, that’s why you have various politicians angling to introduce bills that may someday get passed, signed into law and become a new statute to supersede the latest one.

    Congress creates.  Therefore, Congress must alter or destroy.  (Last time I checked, Congress had a really hard time agreeing on anything much….)

    Then Why the Talk about Presidential Executive Orders?

    Some might wonder why all the talk about Executive Orders if Congress controls what ultimately happens to the H-1B program.

    In any given statute, there will be certain portions that aren’t explicitly written in detail.  When this happens, the statute will typically and explicitly designate a federal authority to “fill-in-the-blanks” by empowering them to establish regulations that will help execute the intent of the law.  It is under this vein, that the U.S. President can provide guidance, priorities, and direction to those designated federal authorities.

    Under the current immigration statute, though, there’s not very much room for maneuvering by the President.  The statute requires employers to pay H-1B workers at least the prevailing wage.  Also, if the prevailing wage is made available to the public (which it is), then the prevailing wage must contain at least 4 levels of wages.

    Theoretically, there could be room to impose a filing fee for the Labor Condition Application (a prerequisite filing with the Department of Labor prior to submitting an H-1B petition to Immigration).  There could also be room for the Department of Labor to require an employer to conduct a labor market test (force employers to advertise to hire U.S. workers only), before it would agree to certify a Labor Condition Application.  Theoretically, the President could impose this in an Executive Order.  Though, both plans may fail if challenged in court, simply because it may exceed the authority of the Agency, since Congress did not contemplate these processes in the statute.

    Therein lies the challenge with the how much power a President could wield through an Executive Order.  The President’s primary role is to guide federal agencies in carrying out the law.  Until Congress can act to reform the laws, we may not see very much change with the H-1B program yet.

  • President Trump Issues Newly Revised Travel Ban

    President Trump signed a revised Executive Order, Protecting The Nation From Foreign Terrorist Entry Into The United States, March 6, 2017.  The Executive Order re-issued a new travel ban for international travelers.  This time, only six countries made it to the list.  Iraq was bumped off due to some heavy political diplomacy and maneuvering on the part of its leaders.

    What Purpose Does the revised Travel Ban Serve?

    The travel ban is meant to put a pause on certain foreigners entering the U.S. from various countries, in order to allow the government a chance to review existing security measures to determine if those measures are adequate to properly screen foreigners for terrorist related activities and their threat to the U.S.

    Which Countries Are Impacted by the Travel Ban?

    Six countries have been outlined to be impacted by the travel ban.  Individuals who are nationals (or citizens) of any of these six countries are impacted: Iran, Libya, Somalia, Sudan, Syria, and Yemen.

    Iraq was removed from this revised travel ban.

    When Does the Travel Ban Go Into Effect?

    This new, revised travel ban goes into effect on March 16, 2017 at 12:01am Eastern Daylight Time.

    Which Individuals Are Impacted by the Travel Ban?

    Individuals who are nationals or citizens of the six countries who meet all three of the following criteria are subject to the travel ban:

    1. Is outside of the United States as of the Effective Date;
    2. Does not have a valid visa at 5:00 p.m., Eastern Standard Time on January 27, 2017; and
    3. Does not have a valid visa on the Effective Date.

    Which Individuals Are Excepted from the Travel Ban?

    The following individuals are NOT impacted by this revised travel ban:

    • Lawful permanent residents in the U.S. (aka greencard holders)
    • Individuals who have been admitted to, or paroled into the U.S. on or after the Effective Date
    • Individuals who have received permission to travel to the U.S. (such as an advanced parole document) issued on or after the Effective Date
    • Dual-national individuals traveling to the U.S. using their non-designated country passports. (For example, an individual who holds a French passport and an Iranian passport who is seeking to enter the U.S. using the French passport is not subject to this travel ban.)
    • Foreign diplomats traveling on a C-2, G-1, G-2, G-3 or G-4 visas
    • Individuals granted asylum status, refugee status, or protection under the Conventions Against Torture are not impacted by this travel ban

    Waivers for the Travel Ban?

    This revised travel ban also carves out areas where consular and customs officers may grant visas/entries to individuals who would otherwise be subject to the travel ban, on a discretionary basis.  The individual must have been determined not to be a national security threat and a denial of entry would otherwise cause undue hardship to the individual.  The waivers may be applicable under the following circumstances:

    1. Previously admitted individuals who were working, studying or conducting other long-term activity in the U.S. prior to the Effective Date of the new travel ban
    2. Foreign nationals entering the U.S. to pursue work, study or other lawful activity
    3. Foreign nationals entering the U.S. to pursue significant business or professional obligations
    4. Foreign nationals entering the U.S. to visit or reside with close family members who are U.S. citizens, lawful permanent residents, or individuals otherwise lawfully admitted to the U.S. in non-immigrant status
    5. Foreign nationals who are young infants or children requiring medical care
    6. Foreign nationals employed by or on behalf of the U.S. government
    7. Foreign nationals traveling to the U.S. for purposes related to an international organization designated by the International Organizations Immunities Act (IOIA)
    8. Landed Canadian immigrants with a valid visa
    9. Exchange visitors sponsored by the U.S. government

    How Long Will the Travel Ban Last?

    The travel ban will last 90 days from the Effective Date.  (There are separate sections regarding refugees on this travel ban that suspends admission of new refugees into the U.S. for 120 days from the Effective Date.)

    Course-Correction For Previously Banned Individuals?

    Fortunately, the revised travel ban clarifies that any individual whose visa was previously revoked as a result of the first travel ban, would be entitled to a travel document to the U.S.  The Executive Order 13769 (the first travel ban) would essentially be revoked on the Effective Date of this revised travel ban.

    ***

    Stay tuned for more details on how Presidential executive power impacts immigration rules, laws, and regulations.

  • Alert: Travel Ban for Citizens of 7 Countries

    [Scroll down to read updates to this post – Travel Ban temporarily halted nationwide by Seattle Judge and upheld by the Ninth Circuit on appeal.]

    On Friday January 27, 2017, President Trump issued an Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States.”  *** Update: As of 1/30/2017  17:00 PST – The EO was only recently made available on the White House website, available here, despite its January 27, 2017 date.***

    The EO is meant to “protect our citizens from foreign nationals who intend to commit terrorist attacks in the United States” and “prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.”  One of its provisions suspends the immigrant and nonimmigrant entry of nationals from certain designated countries for 90 days from the date of the order.  Designated countries, thus far, include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

    The impact of this suspension means that individuals from those seven countries will not be allowed to enter the U.S. Reports from news organizations indicate the EO is impacting foreign travelers en route to the U.S.  The Department of Homeland Security has not issued any statements or guidance to the public to clarify the situation.

    The State Department posted instructions to embassies and consular posts worldwide to immediately suspend issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  Customs and Border Protection (CBP) is preventing entry of foreign nationals, including U.S. greencard holders who are citizens of those seven countries from entering the U.S.

    INDIVIDUALS “FROM” IRAN, IRAQ, LIBYA, SOMALIA, SUDAN, SYRIA, AND YEMEN.

    Lawful Permanent Residents (LPR or green card holders), nonimmigrant visa holders, immigrant visa holders, refugees, derivative (family member) asylees, or those with Special Immigrant Visas (SIVs), have been allowed to enter the U.S. on a case-by-case basis – but reports from various organizations and immigration attorneys indicate otherwise.

    DUAL NATIONALS

    Individuals who are nationals from one or more of the designated seven countries who hold citizenship to another country may still be barred from entering the U.S.

    GREENCARD HOLDERS

    There are varying reports of individuals who are legal permanent residents who are citizens of any of the seven countries being denied entry into the U.S.  DHS is providing conflicting reports at various airports on whether they are enforcing the EO with regards to greencard holders.

    INDIVIDUALS DENIED ENTRY AS A RESULT OF THE EO

    Foreign Visitors attempting to enter the U.S. on a temporary visa arriving at U.S. ports of entry will be allowed to withdraw their application to enter the U.S.  They may return to their countries on their own accord.  Those who refuse will be deported (aka processed for expedited removal).

    UPDATED AS OF FEBRUARY 4, 2017 (16:00 PST)

    On February 9, 2017, the Ninth Circuit issued a denied the President’s appeal to reverse the temporary restraining order imposed by Judge Robart.  The decision allows the travel ban to be halted indefinitely, until the lower District Court can substantively rule on the merits of the case brought by the States of Washington and Minnesota.

    On February 4, 2017, The Department of Homeland Security announced that it has temporarily suspended all enforcement of the Travel Ban imposed by President Trump’s Executive Order as a result of Friday’s ruling by U.S. District Judge James Robart.  Airlines have reportedly been allowing passengers to board flights again.  The Department of State also announced that it had electronically reinstated any visas that were previously revoked as a result of the Travel Ban.

    On February 3, 2017, U.S. District Judge James Robart issued a ruling halting the enforcement of the Travel Bank imposed by President Trump’s Executive Order of January 27, 2017 in the case filed by the State of Washington against the President (at 1:03:00 of the video, text available here.)  The ruling is effective nationwide but temporary.

    On January 31, 2017, DHS Secretary John Kelly is walking back his earlier statements, “clarifying” that the DHS was in full communication with the White House on the EO.  Also, the State of Washington has filed a lawsuit against the President for constitutional violations by this EO.  Its lawsuit is supported by Amazon and Expedia.  California tech giants Google, Netflix and AirBnB also considering filing lawsuits.  Acting U.S. Attorney General Sally had indicated she would decline to enforce the EO in court but was quickly fired by President Trump for these public remarks.

    On January 30, 2017, WhiteHouse.Gov finally published the text of the EO.  There are reports that Greencard holders are being pressured to give up their greencards and sign immigration forms.  It is recommended that greencard holders consult with an immigration attorney before signing any documents presented by U.S. Customs officers; or in the alternative, to refuse to sign any documents to which they may lose their rights.

    On January 29, 2017, DHS Secretary John Kelly confirmed that all Customs Officers will respect the orders from the courts and will allow all greencard holders to enter the U.S. despite the travel ban for individuals from those seven countries in the form of a waiver.  This was published on January 30, 2017

    On January 28, 2017, a federal judge issued an emergency stay, which prevented a portion of the EO from being enforced by DHS Customs Officers.  Essentially, Customs Officers may not prevent refugees, holders of valid immigrant and nonimmigrant visas and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen legally authorized to enter the United States who were en route to the U.S. at the time the EO went into effect.  At least two similar temporary court orders were by Federal District Courts in Massachusetts and the Eastern District of Virginia.

    The travel ban remains in effect for the next 90 days unless challenged in court.

  • Top 10 Immigration Updates for January 2017

    It’s a new year and there are changes, big and small, on the horizon for employers and foreign nationals alike.  Some of these changes are mundane and others will have rippling effects across the board for all folks who practice immigration law or are impacted by U.S. immigration policies.  Our top 10 immigration updates for January, and beyond ….

    1. DHS Responds to Congress

    On December 5, 2016, California Congresswoman Judy Chu inquired of President Obama how the Department of Homeland Security intended to handle the data collected from all DACA applicants in light of the new administration’s indication for mass deportation. On January 3, 2017, DHS Secretary Jeh Johnson responded, reassuring members of Congress that “representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored.”  Congresswoman Chu’s recent response to the new letter continues to ask that President Obama issue an executive order before January 20, 2017 to protect DACA recipients.

    2. Form I-9

    USCIS issued revisions last November to the Form I-9, making it the 12th revision since its debut in 1987. The latest, revised version, Updated 11/14/2016, must be used starting January 22, 2017 and thereafter.  You can download the “smart”, fillable PDF or a regular, paper version here.  Or, better yet, if your company is smart and savvy, you can go the route of the electronic I-9 form using software; but choose your I-9 software wisely since non-compliant I-9 software can get your company in more hot water.

    3. New Rules for Employment-Based VISAS

    On November 18, 2016, USCIS issued a Final Rule, as part of President Obama’s executive action to improve efficiencies in the immigration system.  The rule goes into effect on January 17, 2017 and effectively amends USCIS regulations for employment-based visas.  In sum, the new regulations are a benefit to employers and foreign nationals.  You can read a more specific analysis of the final rule here.

    4. New USCIS Forms

    USCIS announced updates to numerous forms back in December, giving employers and foreign nationals little warning. Fortunately, USCIS extended its effective date to February 21, 2017.  If you’re submitting immigration applications or petitions, make sure the most updated form is submitted.  Only updated versions will be acceptable starting February 21, 2017.  You can visit the USCIS Forms page to double check if the version being used is the most update version.

    5. Bills, bills, bills

    You’ll likely see many more immigration-related bills introduced by various Congress members this year – because optics are important.  We’ll see a patchwork of bills, bills and more bills.

    • HR 170 was recently re-introduced (formerly HR 5801) by Congressman Darrell Issa and others. It impacts only H-1B dependent employers.  (Read my analysis on Quora here.)
    • Congresswoman Zoe Lofgren indicated she might be introducing another H-1B bill of her own.
    • The Bridge Act was introduced by Senator Durbin and others aimed at protecting DACA recipients from being deported once Trump takes over.

    6. Accreditation Issues for STEM OPT Students

    On December 14, 2016, the U.S. Dept. of Education announced it was no longer recognizing the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.  More than 160,000 international students are impacted and for those students who were planning on extending their OPT work authorization based on STEM extensions, this might pose a problem because their school must maintain its accreditation at the time the student applies for their STEM extension.  Read more here.

    7. USCIS Case Processing

    It’s long overdue but USCIS announced recently that starting this year, it will be more transparent with how it indicates its case processing times.

    Starting on Jan. 4, 2017, we will post processing times using a specific date format rather than weeks or months. This is the first step in providing processing times that are timelier and easier to understand.

    We post case processing times on our website as a guide for when to inquire (service request) about a pending case. For the last several years, we have posted case processing times using two different formats:

    • For cases that were within our production goals, we listed processing times in weeks or months.
    • For cases that were outside of our production goals, we listed processing times with a specific date.

    The practical implications for the update to the case processing is minimal.  If USCIS could provide an update on a monthly basis, then it may have a bigger impact.

    8. AAO Case Processing

    In a similar vein, The USCIS Administrative Appeals Office (this is the office that reviews all cases that have been appealed from a USCIS decision), recently announced that it too would present its processing in a date format, rather than average completion times.

    9. New National INTEREST WAIVER STANDARD

    On December 29, 2016, the AAO issued a precedent decision entirely revising the criteria in which to judge a national interest waiver, clarifying and turning the “NIW” option for the a greencard much more attractive.  The case was argued by attorney Gerry Chapman of North Carolina, long-time immigration expert, and a friend. You can read the decision here.  The previous standard that was established in the Matter of NYSDOT case was vacated and superseded by Matter of Dhanasar.  The new National Interest Waiver criteria will now require the petitioner to prove the following:

    (1) that the foreign national’s proposed endeavor has both substantial merit and national importance;

    (2) that he or she is well positioned to advance the proposed endeavor; and

    (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

    10. Immigration Reform

    One way or another, it’s happening.  We don’t know the full scope yet and it may come in piecemeal format, but be assured changes are brewing…. Subscribe here to stay tuned…

  • How President-Elect Trump’s Immigration Plan Would Impact Employers & Entrepreneurs

    There’s been a lot of forceful soundbites from Donald Trump on immigration during his Presidential campaign but it’s yet to be determined how much of that rhetoric will transform into actual policy.

    From a logistical perspective, the Department of Homeland Security, who issues immigration benefits and enforces immigration rules, may be faced with changing course on how they evaluate immigration cases.  It’s not uncommon for Presidents to issue guidance and directives to federal agencies, including the Department of Homeland Security, on what priorities to focus.  While a President can issue executive orders, executive orders that unilaterally alter existing federal regulations might be challenged in court as an abuse of power.

    • Immigration laws require Congressional approval to amend
    • Immigration regulations issued from federal agencies require public notice and comment before being finalized as regulations. Any regulatory reversals would also require public notice and comment before being finalized.

    As of today, November 9th, here’s what we do know in terms of where Trump stands on immigration that would significantly impact U.S. employers and foreign entrepreneurs based on his August 31, 2016 10-Point Speech on Immigration.  (Keeping in mind that these policies were largely crafted by conservative-leaning immigration reform groups.)

     

    NAFTA and TN Visas

    Trump has lambasted NAFTA as a terrible trade agreement that hurts the U.S. and has promised to renegotiate better terms for the U.S. or otherwise withdraw if those new terms aren’t met.

    Under the North American Free Trade Agreement entered into by Canada, Mexico and the U.S., in 1994, a new professional visa category (TN visa) was created to enable Canadians and Mexicans to enter the U.S. and fulfill certain occupational work here. The Agreements allows for any party to withdraw under Article 2205, by providing written notice six months in advance to all parties.

    Impact to Employers: If the U.S. pulls out of NAFTA, it is possible employers may have to find alternative work options for TN employees in the U.S. (and for U.S. employees working in Canada or Mexico in TN status).  The timeline could be as early as 2017Q3 but more will be revealed….

     

    H-1B Visas

    As I previously indicated here, Trump wants to impose new requirements for all immigration-related visas, particular for the H-1B, by requiring employers to first test the labor market by 1) attempting to fill any open positions with U.S. workers first before hiring foreign workers and 2) by requiring employers to pay a certain prevailing wage level.  This is consistent with the 10th point of his 10-Point Ideal discussed in his August 31, 2016 speech:

    We will reform legal immigration to serve the best interests of America and its workers

    …The time has come for a new immigration commission to develop a new set of reforms to our legal immigration system in order to achieve the following goals:

    • To keep immigration levels, measured by population share, within historical norms
    • To select immigrants based on their likelihood of success in U.S. society, and their ability to be financially self-sufficient. We need a system that serves our needs – remember, it’s America First.
    • To choose immigrants based on merit, skill and proficiency
    • And to establish new immigration controls to boost wages and to ensure that open jobs are offered to American workers first.

    Employers currently already must meet prevailing wage standards in order to be approved for an H-1B visa for an employee.  While this new labor market test would be an added requirement, it must first jump through a few hurdles.  It’s unknown exactly how the labor market test will be structured, but if it’s anything like the current process for PERM, the Department of Labor may have to get involved in evaluating the sufficiency of each employer’s labor market test.  In this scenario, we’re talking months of delay due to increased backlogs and more work for any federal agency will likely mean more funding will have to be diverted to fund those operations.

    It would be interesting to see, logistically, how these new requirements would be implemented; either via federal regulatory change (requiring public notice and comment) or congressional amendment to the Immigration and Nationality Act.

    Impact to Employers: If Congress gets involved and passes an amendment to the law, then employers may have to follow these new requirements very quickly.  New requirement to meet certain wage requirements may actually end up producing a law that would pay foreign workers more than actual U.S. workers!  Additionally, the requirement to advertise for U.S. workers before being able to apply for the H-1B petition may delay innovation and corporate expansion.  As a result, multinational companies may consider offshoring jobs if the burden to hire qualified workers in the U.S. is too high.

     

    Update 11/10/2016: H-4 Spousal EADs

    Part of President Obama’s Execution Action involved enabling spouses of certain H-1B visa workers to apply for work authorization.  H-4 spouses, as they are called, could receive employment authorization documents (EADs) that would enable them to work for any U.S. employers of their choosing.  At that time, USCIS had proposed a change in regulations, made the rule available for public notice and comment, reviewed the comments and then issued a final rule as required by the Administrative Procedures Act.  In May 26, 2015, the rule went into effect.

    President-Elect Trump has stated he would “cancel every unconstitutional executive action, memorandum and order issued by President Obama” within his first 100 days in office.  If he orders USCIS to reverse course on EADs for H-4 spouses, then USCIS would have to follow the same procedures it did two years ago in notifying the public, requesting comment, reviewing comment and therefore issuing a final rule.  This may take time and likely any rule eliminated the EAD category for H-4 spouses may likely be prospective and not retroactive.

    Impact to Employers: Workers who hold an EAD based on their qualified H-4 status may possible lose the ability to continue to work after their EAD expires.  Employers may have to evaluate staffing needs in the next six – eight months, in preparation for this potential outcome.

     

    DACA Employees

    Trump has not been shy about wanting to reverse much of President Obama’s executive actions, including the Deferred Action for Childhood Arrivals (DACA) program that enabled eligible undocumented children who entered the U.S. before their 16th birthday to apply for work authorization.

    It would be within a new President’s powers to reverse the previous Executive Action as quickly as January 20, 2017, when the new President is sworn into office.

    Impact to Employers:  Employers who currently employ DACA workers may find themselves short-staffed as early as late January 2017 if DACA is rescinded by President-Elect Trump.  This is particularly alarming, as U.S. Citizenship & Immigration Service has received more than 1.54 million applications since the inception of the DACA program in 2012 and has approved more than 1.45 applications since then.  It’s unclear how many U.S. employers would be impacted by this policy change but data will likely reveal itself in the upcoming months.

     

    Startup Visa for Entrepreneurs

    President-Elect Trump has voiced little about a start-up visa for entrepreneurs.  As a serial entrepreneur himself, one would imagine he would appreciate the values and benefits that entrepreneurship carries with it.  Not so, as it appears at odds with his stance on isolation and populism. Further, even if entrepreneurs were allowed to enter the U.S. via a special visa,  if the entrepreneur stems from a country that has been historically (or is now) affected by terrorism, that that entrepreneur might now be subject to aggressive “vetting” despite their efforts, desires or ability to create U.S. jobs.

    As an aside, the U.S. Citizenship & Immigration Service had announced on September 1, 2016, the Parole for Entrepreneurs as a means to allow certain eligible, high-growth entrepreneurs to enter the U.S. to operate their business.  Comments had closed on October 17, 2016 and it’s still up in the air whether USCIS can review the public comments quickly enough to enact a final rule for the regulation to go into effect before January 20, 2017. If the regulation were to go into effect that quickly (although unlikely), the regulation could still be reversed in the future, but not without first having to go through various administrative hurdles.

    Impact to Entrepreneurs: We won’t know if the Parole for Entrepreneurs will go into effect, only to be later reversed, or if it will go into effect at all.  We also won’t know if the President-Elect will push forward a startup visa bill for Congress to pass that would jump-start innovation.  We’ll have to have wait and see what the next administration brings.

    ***

    As a general aside, the rhetoric from Trump about deporting millions of undocumented immigrants in the U.S. is not typically a topic that is discussed on this website.  However, it’s important to understand that a policy of this magnitude and impact would require significant taxpayer funding; funding that would need to be appropriated by Congress to support and execute.  It’s yet to be seen if the U.S. has room in its budget to finance this policy endeavor.

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