United States: Immigration 2017: What Businesses Need To Know

Since this past weekend, worldwide media has been fixated on President Trump's January 27, 2017 Executive Orders, including the temporary suspension of travel to the US by individuals from seven designated countries. Given no advance warning, employees of US companies who were outside the US when the Executive Orders were implemented have not been allowed to return. Others have upcoming trips for business or pleasure booked that need to be cancelled, and newly hired employees have been temporarily blocked from scheduled visa interviews at US consular posts overseas. The definition of "from [seven designated] countries" has changed back and forth throughout the week. Regardless of political opinion on the need or effectiveness of these temporary measures to prevent terrorists from entering the country, US businesses and international travel have been thrown off guard, and concern is mounting, as well, about other immigration changes that may be on the horizon in the near future.

Though not covered in most media reports, the Executive Orders also clearly suspended nonimmigrant visa interview waivers at consular posts. The interview waiver program was initiated in 2012 for certain low-risk visa applicants, and is used regularly by business visa holders whose visas were issued by the same consular office, and have expired by no more than 12 months. Yesterday reports came out from the Department of State Visa Office that in fact, the interview waiver program was not being eliminated in most cases. If all visa applicants must be interviewed, including low risk applicants that still will be fingerprinted and run through security checks, the likely consequence will be much longer waiting times for visa appointments. These employees might include intracompany transfers, already employed by the same US company and re-entering the US to work on specialized projects where timing is critical. Again, whether or not suspension of interview waivers or other such changes are necessary or effective tools in the fight against terrorism, US employers are scrambling to formulate alternate plans without knowledge on the scope or timing of change.

Another topic that has not been widely covered by the press is the growing concern about substantive and permanent changes to the business visa system, a topic of great importance to US companies, but not understood by most Americans. Thus far, the new administration has not formally announced any changes to the current immigration system, but several unconfirmed and unsigned Orders designed to reduce fraud and protect US jobs have circulated this week, suggesting controversial changes to current visa practices. In particular, the very popular H visa category for degreed professionals has been targeted for review, as well as the L intracompany transferee, and the post graduate practical training work authorization currently in place for F-1 foreign students during school or following graduation. Additional site visits and audits for companies filing any employment based visas have been mentioned, and reform to the J-1 summer work/travel program may be coming. Employers may be pressured by various means to participate in the voluntary E-Verify program, which requires computerized checks to confirm valid immigration status for job applicants. Even the E-2 investment visa category for foreign business investors may be slated for review. Though formally unannounced to date, any changes to long standing business visa requirements could have a serious impact on international investment and employment in the US. Employers will want to review any proposed changes as soon as possible, in order to provide input to Congress and administrative agencies before regulations are finalized. Although Executive Orders from the President can become effective immediately, most regulatory change should take place only after a formal process of review, including public comment.

In addition to Executive Orders and changes to administrative regulations, legislation has been introduced in Congress recently to impose restrictions and alter the qualifications for the H visa program. Additional legislation is expected to be introduced in the coming weeks impacting other common business visa categories. It is anticipated that legislation will be introduced to eliminate the "diversity visa lottery" program, for example, and to reduce caps on family based visas.

Many across the political spectrum believe that our current business immigration system is seriously in need of reform – but for different reasons. Some are concerned about losing US jobs to foreigners, and will push for rules requiring higher salaries and US worker recruitment before visa approval. Others argue that business related visas are necessary to remain competitive, and that additional visa categories and a more streamlined application process must be implemented. If you ask businesses that have filed employment based petitions in recent years, many will tell you that agency review is already much more extensive than in the past, including restrictive interpretation of statutes, detailed requests for additional evidence, and lengthy timing. Either way, businesses can benefit from well thought out immigration reform through legislation and regulations, and now is the time to get involved. If immigration policy impacts your business, be sure to let your Senators and congressional representatives know this.

We are watching for government updates on all Executive Orders, legislation introduced in Congress, and agency regulatory change (actual and leaked!) In the meantime, we strongly suggest that employers with any foreign national employees evaluate all employee visa expiration dates, file for extensions as soon as possible, and evaluate plans for permanent residency. It is very likely that in the coming months, we will see regulatory change governing the US Department of Labor, the US Citizenship and Immigration Services, and the US Department of State embassies and consular posts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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