• Why Every Immigration Case Needs a Good Credential Evaluation

    Today, we bring you a guest article authored by Shail Sturm, Manager at Park Evaluations, to discuss how credential evaluations are an important component in preparing successful immigration petitions to U.S. immigration.

    In the context of immigration, foreign academic credential evaluators are critical in evaluating higher education degrees obtained abroad. Some of the most popular work-based visas require educational degrees. A bachelor’s degree obtained in one country may not always equate to a bachelor’s degree obtained in the U.S. Today, we demystify the evaluation process by looking at the tools evaluators use to assess academic equivalency to a U.S. bachelor’s degree.

    UNITED STATES BENCHMARK

    In the U.S., primary and secondary school education starts with Kindergarten and lasts through 12 levels (or grades). The final four years (9th-12th grades) are called “high school.” Beyond that, students pursue secondary education at a two-year college, or four-year college or university.  The standard undergraduate bachelor’s degree usually requires four years of undergraduate study. Therefore, most foreign credentials are based on the four-year standard bachelor’s degree in the U.S.

    Foreign bachelor’s degrees that are a three-year program are usually not sufficient to be evaluated as the equivalent of a U.S. bachelor’s degree.  This is the common problem encountered with Indian bachelor’s degrees.  However, some three-year academic programs may equate to a U.S. bachelor’s degree.  For instance, a three-year degree from the United Kingdom, or Israel, can equate to a U.S. bachelor’s degree if you factor in the total requisite years of study for entry into the three-year program.  As foreign academic credential evaluators, we have precisely some of those tools at our disposal.

    AACRAO EDGE

    AACRAO (American Association of Collegiate Registrars and Admissions Officers) developed the Electronic Database for Global Education (EDGE). This database collects and analyzes data for degrees from around the world.  It categorizes the educational certificates and degrees from various countries around the world. Because USCIS has adopted the EDGE database, this tool has become indispensable to evaluators.

    CASE STUDY: AUSTRALIA

    In the U.S., the standard prerequisite for entrance to a college or university are entrance exams and/or completion of high school requirements.  In other countries, the requirements for entering university are different.

    For example, Australian students receive Technical and Further Education certificates (TAFEs). These certificates are designated by their levels: TAFE I, TAFE II, TAFE III, and TAFE IV and are the equivalent of a U.S. high school diploma.  However, because the certificates denote “further education” in its titling, it can lead to an erroneous conclusion by some that the certificates are the equivalent of a university-level degree.  While some of the certificates may reflect completion of undergraduate coursework, that alone would not normally equate to the equivalent of an undergraduate U.S. degree.

    In Australia, the length of a bachelor degree program can vary from three years to seven years of coursework. Some Australian bachelor’s degrees may even equate to a U.S. master’s degree, while other bachelor’s degree programs equate to a few years of college coursework in the U.S. It all depends on the length and robustness of the degree program.

    GENERAL TIP FOR EMPLOYERS AND FOREIGN CANDIDATES

    A common rule of thumb is that a bachelor’s degree with at least four years of continuous undergraduate study is usually considered equivalent to a U.S. bachelor’s degree.  If the degree program doesn’t meet this test, then accruing relevant work experience can also be helpful towards establishing the equivalent of a U.S. bachelor’s degree based on combined work and academic experience.

    ABOUT OUR GUEST AUTHOR

    Shail Shurm grew up in Canada.  His grandparents emigrated from both Germany and Hungary.  Immigration has been a steady focus in Shail’s life. He has been working with Park Evaluations for the past 3.5 years and has a passion for assisting attorneys and foreign nationals navigate the complexities of credential evaluation for U.S. immigration matters.  Shail can be reached at shail@parkeval.com.

  • 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.

  • NPR Talks H-1Bs with Immigration Attorney Ann Cun

    The topic of H-1B Visas has been on the top of many lawmakers’ minds.  On Monday, February 13, 2017, National Public Radio’s All Things Considered Host Robert Siegel interviewed Immigration Attorney Ann Cun to discuss why U.S. tech employers opt to hire foreign workers.

    Listen to the broadcast below.

    One of the most interesting portions of the conversation, which did not air, occurred when NPR host Robert Siegel inquired about whether NPR had also hired H-1B workers and if there was a way to find this out.  After some research on the internet, it turned out NPR had indeed submitted a few applications in 2016 to the Department of Labor in connection with what would eventually become a part of any H-1B petition that would have been submitted to the U.S. Citizenship and Immigration Services.  This fact was eventually spliced into the segment airing at the very end.

    The ubiquity of the H-1B visa would actually surprise many of its critics.  While many critics bemoan a program that is [allegedly] wrought with abuse by U.S. employers, critics would also be surprised at how entrenched our society has become in our reliance upon technology, therefore necessitating high-tech workers, even if they are foreign-born. These industries include restaurants and hospitality, traditional retailers, news corporations, entertainment companies, as well as the service providers like consulting companies.  In fact, many of the news corporations that often report on the complexities of the H-1B visas also rely on H-1B workers themselves (i.e.: Viacom, CBS, Comcast, Fox, Time Warner, Time Inc., and Hearst).  That’s because technology plays a vital role in how consumers digest information.

  • Four Immigration Bills Impacting H-1B Workers

    The H-1B program as we know it may be changing in the near future but just how quickly those changes occur will depend largely on how quickly Congress can review and vote on the bills.  As of today, four bills have been introduced (and reintroduced) by various congress-people.  As a reminder, a bill has no immediate impact on existing visa programs until the bill has been signed into law.  That, is inherently the challenge with our government.  (Click here for details on how bills become law.)

    Bill #1: H.R.170 Protect and Grow American Jobs Act

    Introduced on January 3, 2017 by Rep. Darrell Issa (R – CA)

    The bill has a limited scope applicable only to H-1B dependent employers.  H-1B dependent employers employ

    • ≤ 25 full-time employees, of whom 8 or more are H-1B workers; or
    • 26 – 50 full-time employees, of whom 13 or more are H-1B workers; or
    • 51 or more full-time employees of whom 15% or more are H-1B workers.

    (Full-time employees are individuals who work 35 or more hours per week according to the rules set by the U.S. Department of Labor.)  Currently, employers who are dependent on H-1B workers must undergo additional recruitment of U.S. workers and attestations in order to continue to hire H-1B workers.  In order to bypass those additional requirements, H-1B dependent employers may attest to paying their H-1B workers $60,000 per year or more, or hire individuals who hold a master’s degree or a higher degree.  Under H.R. 170, the bill would raise the $60,000 minimum to $100,000 and eliminate the master’s degree option entirely.  The impact of the bill is aimed squarely at H-1B dependent employers and would have little impact on most U.S. employers generally.

     

    Bill#2: H.R. 392 Fairness for High-Skilled Immigrants Act of 2017

    Introduced on January 10, 2017 by Rep. Jason Chaffetz (R – UT) and 24 other co-sponsors with a total of 66 co-sponsors to date (as of February 12, 2017).

    Current immigration quotas (as set by Congress) dictate that no more than 140,000 greencard (visas) be issued per fiscal year for those being sponsored through employment, and no more than 226,000 greencards be issued for those being sponsored by family.  In addition, no country may be issued more than 7% of the quota total per fiscal year (this additional rule is called the per country limitation rule).  In practice, the per country limitation rule has created significant backlogs in the “greencard line” for many individuals emigrating to the U.S. from countries like China, India, Mexico and Philippines.  In fact, its not uncommon for a Canadian to be instantly eligible to apply for a greencard whilst their Indian counterparts must wait 8 years or greater for the same employment category.

    H.R. 392 seeks to remove entirely the per country limitations for individuals seeking a greencard based on employment sponsorship.  This would help to speed up the waiting periods for those immigrants who have been waiting for years.  Their ability to obtain greencards would also promote greater job portability.

    For individuals being sponsored by family members, the bill seeks to raise the per country limitation from 7% to 15%, which would also alleviate some of the waiting periods for individuals.

    The bill also removes caps for Chinese Students seeking to immigrate to the U.S.

    Although the bill does not directly seek to change the H-1B program, if passed, its impact would trickle over to H-1B visa holders.  It levels the playing field for all immigrants waiting for their greencards to be approved, regardless of which country they were born.  Rather than having to rely on one employer to sponsor an H-1B for multiple years (8+ years for Indian nationals), workers may have a much shorter waiting period for their greencards.  Faster greencard processing times means greater job mobility for workers means greater competition for skilled labor.

     

    Bill #3: S.180 H-1B and L-1 Visa Reform Act of 2017

    Introduced on January 20, 2017 by Sen. Chuck Grassley (R – IA), Sen. Dick Durbin (D – IL), Sen. Sherrod Brown (D – OH), Sen. Richard Blumenthal (D – CT)

    S.180, as introduced, would revise the H-1B program in many ways.

    1. It would impose priorities on how the H-1B visa is allocated with priority given to advanced degree holders in STEM fields.
    2. All H-1B workers would be required to obtain a U.S. degree (or a foreign equivalent).
    3. Employers would be required to pay a fee to submit a Labor Condition Application to the U.S. Department of Labor. (There is currently no fee.)
    4. The U.S. Department of Labor would be empowered to demand employers comply with the rules (or face penalties) and conduct investigations based on fraud or non-compliance (for both H-1B and L-1 workers) and provide U.S. Citizenship & Immigration Service with any documentation necessary to investigate employer non-compliance.
    5. The U.S. Department of Labor would be required to conduct annual audits of companies with 100 or more employees if more than 15% of those employees are H-1B workers.
    6. The U.S. Department of Labor may hire additional 200 employees to administer its H-1B program.
    7. The H-1B program would be reduced from 6 to 3 years. A 3-year extension would only be allowed for workers who can demonstrate extraordinary ability or have advanced degrees or who are professors.
    8. Consulting companies are specifically excluded from utilizing the H-1B visas for its workers.
    9. Employers would face stiffer penalties for displacing U.S. workers with H-1B workers and face additional penalties for employee lost wages and benefits.
    10. Employers would no longer be able to hire L-1B workers based on specialized knowledge for more than one year, if the worker will be placed at a third-party site rather than the employer’s worksite, unless a waiver has been obtained from the U.S. Department of Labor.
    11. Employers may not replace a U.S. worker with an L-1 worker.
    12. Additional rules will be imposed for L-1 workers, including work location, minimum salary rates, working conditions and employer penalties.

    Of the four bills indicated in our article today, this bill is the most ambitious in revising the H-1B program.  It imposes lots of penalties and changes to both the H-1B program and the L-1 program and seeks to eliminate an entire industry (consulting companies) from existence in the U.S.  Moreover, the attempts to remove as many business operating decisions from the discretion of employers.

    The bill, if enacted into law, would be prospective, but it doesn’t clarify what would happen to the hundreds of thousands of H-1B workers in the U.S. who had previously qualified for H-1B status based on years of experience in the field (or a combination of experience and education).  Moreover, it leaves open as to how foreign degrees would be determined to be the equivalent of a U.S. degree, when many countries operate on a three-year university degree whilst the U.S. uses the four-year standard.

    We’ll dig deeper into some additional questions this bill raises (more than it answers) so stay tuned to this blog.  If you have questions, feel free to leave us a comment.

     

    Bill #4: H.R.670 High Skilled Integrity and Fairness Act of 2017

    Introduced on January 25, 2017 by Rep. Zoe Lofgren (D – CA)

    H.R. 670 also attempts to raise the bar for employers seeking H-1B visas for their workers.  Unlike S.180, which whacks all business necessity rationale out of the H-1B and L-1 programs and imposes heavy-handed rules, H.R. 670 uses a market-based approach. If employers really want to hire a skilled worker, they must pay for it!

    1. Wages for H-1B workers will go up but a lot! Rather than use the 4-tiered system currently in place, the U.S. Department of Labor will be required to conduct a new survey using three tiers.  Based on those three tiers, employers who pay the most (i.e. X% of Tier 3 wages) will receive priority for hiring H-1B workers.  (I’m oversimplifying the math for brevity’s sake.)
    2. The bill also factors in much of what H.R. 170 (above) proposes, by raising the H-1B dependent-employers exemption from $60,000 to almost $130,000 and also eliminating the master’s degree allowance.
    3. The bill also factors in H.R. 392 (above) by removing the per-country limitations as well for employment-based immigrants.
    4. Sets aside 20% of the annually allocated H-1B visas for small and start-up employers (50 or fewer employees) to ensure small businesses have a chance to compete for high-skilled workers.
    5. Removes hurdles to allow F-1 students to apply for a greencard.
    6. Requires employers to legally make available copies of the H-1B petitions to their workers as well as all approval notices.

     

    It will take a long time for Congress to convene and the bills to traverse its way through committees, subcommittees and debates.  In other words, it will be a while before the bills have any actual impact on H-1B workers or U.S. employers but don’t be surprised by surprises.  This year is proving to be very eventful.

    ***

    Some of you might also be pondering the big question of what would happen if President Trump issues an Executive Order that impacts that the H-1B program.  How quickly would the program be revised?  Would salaries be impacted?  Would it impact this year’s H-1B lottery?  Want to learn more?  Stay tuned for an update by subscribing to our blog.

  • Summary of Final Rule for Employment-Based Visa Programs Issued by USCIS on November 18, 2016

    USCIS recently issued a Final Rule on its employment-based immigrant and non-immigrant visa programs.  The Final Rule becomes effective on January 17, 2017.  Here are some highlights of the final rule for employers and foreign nationals:

    1. Priority Dates

    Clarified that priority dates are issued at the time it was properly filed. Also indicates that for retention of priority dates from EB-1, EB-2 or EB-3 petitions, employees may now use previously issued priority dates for porting to another employer. Finally, priority dates cannot be transferred to other individuals.

    2. Employment Authorization

    Employees in E-3, H-1B, H-1B1, O-1 and L-1 nonimmigrant status with an approved EB-1, EB-2 or EB-3 I-140 petition may request employment authorization for up to one year, if the priority date is not current, under compelling cases. Spouses and children may also apply. Renewals may also be permitted for both the principal employee and his/her family members.

    3. Revocations

    Approved I-140 petitions will no longer be automatically revoked by USCIS based on a withdrawal from the Petitioner, if the I-140 has been approved for 180 days or more. So long as there was no fraud, material misrepresentation or other invalidating purposes, the approved I-140 petition will be valid for job portability, retention of priority dates and extensions under AC21.

    4. Grace Periods

    E-1, E-2, E-3, H-1B, L-1, and TN nationals and their dependents now get a 10-day grace period. For those holding E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status whose employment has ended, they may receive a grace period of up to 60 days.

    5. Licensure

    For those H-1B applicants stuck in a catch-22 who cannot obtain a license to engage in the relevant occupation because of a lack of social security number or work authorization, DHS will issue the H-1B petition for up to one-year to facilitate the licensure rule.

    6. H-1B Cap Exempt Employers

    Clear definition for which organizations qualify as an “institution of higher education” and “related or affiliated nonprofit entity.”

    7. H-1B Extensions based on AC21

    Employees may request an extension beyond the six years of H-1B, in one-year increments, if the underlying labor certification application or employment-based immigrant visa petition has been pending for more than one-year. Extension requests may be submitted six-months in advance of the start date. The employee must file for their greencard applications within one year from the date the priority date is current, or they risk losing the ability to seek future H-1B extensions in one-year increments. Employees need not be in H-1B status to be eligible for extending their H-1B for three additional years beyond the six years.

    8. Retaliation

    For employees who reported LCA violations and switched employers, the new employer may attach documentation of these extraordinary circumstances to mitigate failure by the employee to maintain status at the prior job.

    9. Proof of Valid Job Offer

    All greencard applicants with an approved I-140 petition must prove their job offer is valid and pending at the time the application is reviewed by a USCIS officer.

    10. EAD Automatic Extensions

    Applicants of timely filed extensions for EADs requesting the same EAD category, unencumbered by other dependent status petitions or applications, will receive an automatic extension of their EADs for 180 days from the date of the initial EAD expiration. If the EAD application is denied, the 180 days is terminated. USCIS will issue a Notice of Action (Form I-797) granting an additional 180 days employment authorization. This document, along with the expired EAD, may be used as proof of work authorization for Form I- 9 employment verification. Employers should reverify upon expiration of the 180 days. USCIS will no longer be bound by the rule to issue EADs within 90 days.

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    The above summary is for educational purposes only and is not intended to be legal advice. Please be sure to touch base with an experienced immigration attorney for a discussion as to how the new rules may impact you or your company. Subscribe to our blog for more updates and articles!

  • 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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