Although we are just eight months into the Trump administration, the U.S employment-based immigration landscape has already shifted dramatically. In recent months, business immigration attorneys have witnessed the suspension of premium processing for most H-1B petitions (though premium processing finally resumed this week for H-1B cap-subject petitions after a five month delay); the postponement of the International Entrepreneur Rule, which was expected to go into effect on July 17; the denial of Form I-131 applications when an applicant travels abroad while the I-131 application is pending, in contradiction to long-standing USCIS policy; a surge of Requests for Evidence (RFEs) on H-1B cap petitions where a Level 1 wage was indicated on the Labor Condition Application (LCA); and a new requirement for in-person interviews for all employment-based immigration cases starting October 1, among many other developments. In addition, rumors abound about potential cuts to the J-1 cultural exchange visitor program, including those for au pairs and camp counselors. What is the source of this changing landscape and what can we do as immigration attorneys in response to these changes?
The source from which many of these dramatic shifts flow is the Buy American and Hire American Executive Order (EO 13788), which was signed by President Trump on April 18, 2017. This executive order has served as the foundation by which this administration is swiftly re-shaping the employment-based immigration landscape and setting up roadblocks in the immigration system to hamper U.S. employers’ ability to hire and retain foreign workers for employment opportunities in the United States.
For those who are not familiar with EO 13788, I encourage you to read it. Knowing how the administration views employment-based immigration is vital to understand the current environment and developing a strategy to respond. In the “Hire American” portion of the executive order, President Trump calls for the rigorous enforcement and administration of the laws governing entry into the U.S. of foreign workers for the stated purpose of creating higher wages and employment rates for U.S. workers, and to protect their economic interests. In carrying out his Hire American policy, President Trump directed the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to propose new rules and issue new guidance to protect the interests of U.S. workers in the administration of our immigration system. President Trump specifically highlighted the H-1B visa program and directed the agencies to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled and highest-paid beneficiaries.
The response by federal agencies in carrying out this executive order has been swift. USCIS is working on a combination of rulemaking, policy memoranda, and operational changes to implement this executive order and the recent surge of RFEs being issued by USCIS on H-1B petitions is likely a direct result. Similarly, the Department of State (DOS) has made changes to its Foreign Affairs Manual (FAM), which include new language referencing the EO in guidance regarding the adjudication of H, L, O, P, and E visas. The Department of Labor and Department of Justice have also announced efforts to step up monitoring and enforcement efforts of H-1B employers.
Taken as a whole, the future of employment-based visa programs under the Trump Administration appears bleak. In light of this changing landscape, it is important that we as immigration attorneys stay informed, get engaged, speak out, and sharpen our legal toolbox:
- Stay informed: Immigration attorneys can stay informed on the latest developments in immigration law and policy through AILA’s website, which offers a wealth of resources on every aspect of immigration. An easy way to stay abreast on the most up-to-date developments is to review AILA8, a daily e-newsletter that summarizes the top 8 immigration news items of the day.
- Get engaged: Now more than ever, we should work together to develop strategies to fight back against anti-immigrant rhetoric. AILA members should get involved with their local AILA Chapter, get connected with attorneys and mentors in their local community who are navigating these issues, and work together on initiatives locally to change the dialogue on employment-based immigration.
- Speak out: Immigration attorneys should speak out about the positive benefits of employment-based immigration to U.S. employers, our local communities, and our national economy. Write an opinion piece or a letter to the editor of your local newspaper on the importance of foreign workers to U.S. corporations, research institutions, medical facilities, universities, and small businesses in your community. To get started, check out AILA’s talking points on EO 13788 and other media tools and resources. Furthermore, it’s vital that we reach out to our Members of Congress to help them understand the value and importance of the employment-based immigration to their constituents and encourage them to support pro-immigration legislation. Encourage your business clients, who have utilized the H-1B program successfully and responsibly, to send a letter to their members of Congress highlighting the program’s value.
- Sharpen our legal toolbox: As we navigate this ever-changing landscape, we should re-assess our legal toolbox and sharpen those tools that may have gone unused for some time. This may require developing new and creative strategies when preparing an employment-based petition, such as proactively including information with applications submitted to USCIS or DOS on how the foreign worker will benefit the U.S. economy and create U.S. jobs; being prepared to appeal a case to the Administrative Appeals Office (AAO) that would typically have been approved in the past, and considering federal court litigation.
In this dramatically shifting “Hire American” landscape, we must fight back against anti-immigrant rhetoric and actions. We must work together to preserve the employment-based immigration system that has been vital to filling critical gaps in the U.S. workforce, generating innovation, and fostering the robust growth necessary to keep our economy thriving and to maintain jobs in the U.S.