United States: Possible Changes To U.S. Business Immigration Law And Policy Under The New Administration

Last Updated: February 27 2017
Article by Jorge R. Lopez, Michelle A. White and Ellen Kruk

This article covers proposed legislation, sub-regulatory changes, and—from a practical standpoint—the process/timing for implementing changes under the new administration. Please note that while legislative immigration reform does take time to implement, sub-regulatory changes can be implemented immediately without a formal rule-making process. Moreover, existing regulations need only go through the Administrative Procedure Act (APA) rulemaking process to be modified or rescinded. To help clarify current law and polices from a corporate immigrant standpoint, below we have outlined the following:

  1. How Immigration Law, Policy and Treaties Can Be Changed
  2. Summary of the Executive Order on Work Visa Programs
  3. Trump Administration's 10-Point Immigration Plan
  4. Summary of Proposed Immigration Legislation
  5. Worksite Enforcement and Government Audits
  6. Practical Recommendations

How Immigration Law, Policy and Treaties Can Be Changed

There are four main ways in which immigration law can be changed:

Sub-Regulatory Changes. This category includes changes to the United States Citizenship and Immigration Services (USCIS) / Department of Labor (DOL) Policy Memos and FAQs, agency adjudication policies, and presidential or agency executive orders. Sub-regulatory changes also include administrative processing decisions based on National Security Agency and U.S. Department of Homeland Security Immigration and Customs Enforcement (ICE) enforcement policy. Statutory authority is required for any changes to be applied retroactively.

Existing Regulations. Final or proposed rules that have already been published in the Federal Register typically require APA notice-and-comment rulemaking if they are to be modified or rescinded. Statutory authority is required to apply any changes retroactively, which is rare. However, under the Congressional Review Act (CRA), Congress can rescind a major regulation if it was issued within the last 60 legislative days. Only a simple majority is required in the Senate for a rescission. One regulatory change that could be affected under the CRA is a new USCIS rule that amends certain regulations relating to employment-based immigrant and nonimmigrant visa programs. This final rule was published on November 22, 2016, and has a January 17, 2017 effective date.1

Statutes. Statutes require legislative action to amend. Retroactive changes are possible but are very rare as they are subject to constitutional limitations.

Treaties. Any amendments to the North American Free Trade Agreement (NAFTA) require providing six months' notice to Canada and Mexico.

Summary of the Executive Order on Work Visa Programs

On January 23, 2017, a draft executive order entitled "Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs," (the "Order") was leaked. Although this Order has not been issued yet, due to its publicity, we have highlighted key points below:

  • Business Travel (B-1) Reforms: The Order instructs the Secretary of Homeland Security to propose a regulation clarifying the activities that are permitted under the B-1 business visitor visa. This could potentially result in the elimination of the "B-1 in lieu of H-1B" visa in addition to a strict application of the business visitor category.
  • Adjustment of Status: Within 30 days of the Order, the Secretary of State and the Secretary of Homeland Security must propose a regulation that would reform the adjustment of status (a/k/a greencard) process and reduce inefficiencies.
  • OPT/Practical Training Reforms: The Secretary of Homeland Security is instructed to propose a regulation to reform the practical training program "to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, restore the integrity of student visa programs, ensure compliance, and improve monitoring of foreign students." This could result in significant changes to OPT, CPT and STEM OPT programs.
  • E-2 Reforms: The Order instructs the Secretary of State and Secretary of Homeland Security to propose regulations reforming the current regulations to conform to the requirements of immigration law within 30 days of the Order.
  • Review of Regulations that Allow Foreign Nationals to Work: This section of the Order requests that the Secretary of Homeland Security "review all regulations that allow foreign nationals to work in the United States and determine which of those regulations violate immigration laws or are not in the national interest and should be rescinded, and propose a rule rescinding or modifying such regulations" within 90 days of the Order.
  • H-1B Allocation Reforms: The Order also instructs the Secretary of Homeland Security to "make the process of H-1B allocation more efficient and ensure the beneficiaries of the program are the best and brightest" within 90 days.
  • E-Verify Expansion: The Secretary of Homeland Security will have 90 days to submit to the president a list of options to incentivize and expand E-Verify participation. This includes conditioning certain immigration-related benefits on E-Verify.
  • Site Visits for L-1s: Instructs the Secretary of Homeland Security to start performing site visits for third-party worksites for L-1B individuals with specialized knowledge. Currently, site visits are only conducted for L-1A multinational managers or executives. In addition, new wage requirements could be implemented.
  • Department of Labor Nonimmigrant Visa Investigations and Reports: Within 9 months, the Secretary of Labor is instructed to investigate injuries to U.S. workers caused by the employment of foreign nationals admitted under nonimmigrants visas.

The Trump Administration's 10-Point Immigration Plan

Below we have included the relevant points from the 10-Point Immigration Plan that are related to business immigration:

  • Suspend visa issuance in countries where security screening is not deemed adequate.
  • Fully implement biometric entry-exit system.
  • Mandate the use of E-Verify.
  • Reform legal immigration to keep it within "historical norms," and admit foreign nationals most likely to be economically self-sufficient.

Summary of Proposed Immigration Legislation

The following are recently introduced bills that, if passed, will impact immigration law.

Protect and Grow American Jobs Act (H.B. 170)

This legislation aims to limit how employers petition for H-1B visas. The bill proposes to amend the H-1B program by requiring H-1B-dependent employers (companies with over 50 employees that have 15% or more of their U.S. workforce on H-1B visas) to pay sufficiently high wages to ensure the protection of the U.S. workforce. It would raise the annual salary requirement for H-1B dependent employers from $60,000 to $100,000 and eliminate the master's degree exemption.

High-Skilled Integrity and Fairness Act (H.B. 670)

This Democratic-sponsored proposal aims to prioritize allocation of H-1B visas based on a market-based system of allocation and to eliminate the "per country" cap for employment-based visas.

The legislation would also:

  • Re-set the current dependent wage exemption level of $60,000.
  • Increase prevailing wage requirements by replacing the current 4-level wage calculation with a new 3-level wage formula.
  • Eliminate the master's degree exemption.
  • Require employers to make attestations regarding recruitment and non-displacement of U.S. workers unless they compensate their H-1B workers above the required wage level.
  • Set aside 20% of the annual allocation of H-1B visas for small and start-up employers.

Reforming American Immigration for Strong Employment (RAISE) Act (S. 354)

This bill is projected to reduce legal immigration by 41% in its first year and up to 50% by its tenth year. The bill's sponsors aim to raise American workers' wages by reducing overall immigration by half and rebalancing the system toward employment-based visas and immediate family household members.

The RAISE Act would:

  • Eliminate the 50,000 visas allocated for the Diversity Visa (DV) Lottery for people from countries with historically low rates of immigration to the United States.
  • Retain immigration preferences for the spouses and minor children of U.S. citizens and green card holders, and eliminate preferences for the extended and adult family members of U.S. residents.
  • Create a renewable temporary visa for parents in need of caretaking.
  • Limit the numbers of refugees offered permanent residence to 50,000 per year.

H-1B and L-1 Visa Reform Act (S. 180)

This bill was introduced as part of a long-time effort to revamp the H-1B program. The bill's bi-partisan sponsors intend to create a preference-based visa allocation system to replace the current lottery-based system. The proposed structure would task USCIS with prioritizing foreign applicants with advanced degrees from U.S. universities, those paid at the highest wage level, and applicants with valuable STEM-related skills.

The legislation would also:

  • Require all employers who want to hire H-1B workers to make a good-faith effort to hire U.S. workers.
  • Prohibit any employer from replacing a U.S. worker with an L-1 worker.
  • Enhance the authority of the Department of Labor to review and investigate employer H-1B programs.
  • Reduce the period of authorized admission for an H-1B immigrant from six to three years, with a three-year extension available for aliens with extraordinary ability, advanced degrees, or professors.

Worksite Enforcement and Government Audits

With the Administration's focus on immigration, we expect that worksite enforcement and government audits will increase. This could include the following types of investigations and audits:

  • USCIS: Increased fraud detection site visits for H-1Bs and L-1s.
  • Department of Labor: Public Access File (PAF) audits.
  • OFCCP: Labor Condition Application (LCA) and nondiscrimination audits.
  • ICE: Increase in worksite raids and I-9 audits.
  • E-Verify Audits: E-Verify does not have penalties associated with noncompliance, but the USCIS can and does report "unusual activity" to other government agencies such as the OFCCP.

Practical Tips

Federal Agency/Program Recommendations
USCIS Fraud Unit Visits Prepare a protocol for receptionists to follow if an FDNS (Fraud Detection and National Security Directorate) officer arrives.

Prepare employees and managers for possible site visits.

Audit I-129s to ensure duties, wages and work locations match the I-129.
Department of Labor For worksite enforcement and government audits, confirm worksite location information is up-to-date.

Public access files and posting notice documentation must be maintained.
OFCCP Ensure actual wage and prevailing wage information is accurate.
ICE Ensure I-9 Compliance is up-to-date and conduct regular audits and trainings.
E-Verify Review E-Verify monitoring and conduct random audits of compliance.

We are monitoring these developments closely and will provide additional updates as needed.

Footnote

1. For more information about this rule, see Michelle White, New USCIS Rule Amending Several Employment-Based and Nonimmigrant Visa Programs Will Take Effect on January 17, 2017, Littler ASAP (Jan. 12, 2017).

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jorge R. Lopez
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.