This squarely fits under a Tale of Two Administrations. The Biden Administration, which can be credited with meaningful advances in immigration policy and regulation (notably, without any major immigration legislative achievements), has taken one final action with a final rule titled “Modernizing H–1B Requirements, Providing Flexibility in the F–1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” This regulation is generally intended to streamline and codify existing policies in advance of the Trump Administration's promise to be a change agent.
We are providing this update to ensure clients are aware of several key updates and possible changes:
- After January 17th, failing to file an H-1B amendment in advance of a material change will void the H-1B. While it has always been important to notify the government of material changes through an amended filing, the regulation now expressly contains language that voids the H-1B for failure to do so. Given this change, it is important that any client considering a material change notify counsel before proceeding. This includes an H-1B employee moving to a work location outside of a commuting distance or the municipal area listed in the initial H-1B filing. Occasionally clients move and tell us later – under the new regulation, doing so will void the employee's H-1B status leading to potential serious consequences for both employer and employee. Please contact us immediately if there have been material changes so we can ensure clients are protected.
- After January 17th, the prior adjudication policy of USCIS becomes codified into USCIS regulations. The prior adjudication policy, previously the policy of four prior administrations was revoked during the first Trump Administration only to be reintroduced during the Biden Administration, mandates that USCIS give deference to its prior decisions (approvals), ideally making the process of extending status that USCIS has already approved smoother. The move to codify the guidance is to prevent the Trump Administration from removing this protection, as the first Trump Administration voided that policy.
- After January 17th, key elements related to H-1B policy are now enshrined in regulation, including how to determine who can petition for an H-1B, whether a degree awarded qualifies for a specialty occupation, and what situations qualify as cap exempt. Again, these are important to ensure the program is managed in a manner consistent with past practice.
- After President Trump's inauguration on January 21st, there is significant speculation as to what actions he will take on immigration. Top of mind will be to ensure his picks for Cabinet and other leadership positions are actioned by the Senate. However, two of his key advisors in this area, Stephen Miller and Tom Homan, are not subject to Senate confirmation and can begin work on Day 1. As Stephen Miller has publicly stated, he's had over a year to plan and draft action plans, specifically regarding immigration policy, for Trump to take when he enters office. Such action will take the form of Executive Orders. We expect several immediate changes because of these statements (which could take the form of multiple Executive Orders, or one omnibus Order, or other piecemeal methods to achieve their goals) and, for this reason, we are advising all clients with international travel plans at this time to return to the United States prior to January 21, 2025 if you are concerned that an Order may in some way limit your visa or travel eligibility.
- Possible Orders include:
- A new “Muslim” Ban. The prior final version of this ban ultimately restricted visa issuance, permanent residence, or possibly entry for various citizens who held passports from the following countries – Iran, Libya, Somalia, Syria, Yemen, North Korea, Venezuela, Sudan, Tanzania, Eritrea, Kyrgyzstan, Myanmar, Nigeria. The final “ban” was applied differently to each of these countries, and this “ban” is the reason why individuals should consider being in the U.S. on January 21st if they are concerned of a similar Order.
- A “remain in Mexico” styled order (formerly officially dubbed ‘Migrant Protection Protocols') that endeavors to prevent individuals from seeking asylum at U.S. ports of entry, particularly the southern border, and limits potential entry of immigrants for medical reasons (this was the original rationale for limiting entry during the Covid Pandemic period).
- A directive to ICE, Homeland Security, and possibly other law enforcement or military agencies to support the ‘rounding up', detention, and removal of undocumented individuals in the U.S. The scope of this directive is not yet fully known, including how broad this action will go and the mechanisms used to undertake the effort (e.g. will ICE only prioritize undocumented populations with criminal records, or will active duty military be engaged in sweeps at employer worksites and storing detainees at Air Force bases, as Stephen Miller has recently suggested). Anyone who may be impacted by such action should pay close attention to news updates and be aware of their individual rights (to questioning, to a lawyer, etc.).
- A “Buy American, Hire American” styled directive that seeks to restrict the hiring of foreign workers if it may impact U.S. workers' opportunities. This was attempted during the prior Trump Administration and its contents were blunted by court decisions as many of the attempted changes were counter to existing law (e.g. an attempt to require all H-1B filings to start at wage level II, when the law defines all recent college graduates as wage level I. This change was positioned under the guise of protecting U.S. workers, but it was unconstitutional, and resulted in companies being required to pay foreign workers significantly more than their U.S. citizen counterparts to receive H-1B approval). In this situation, like others encountered, constitutional rulemaking requirements were discarded in favor of creating hurdles for lawful immigration pathways. We expect the new Trump Administration will have learned from its prior experience and the new Speaker of the House has suggested a new omnibus immigration reform bill with be introduced.
- DACA will no longer be defended. Currently awaiting a decision from the Fifth Circuit Court of Appeals after an appeal filed by the Biden Administration from a lower court's ruling against DACA, many scholars predict that the Fifth Circuit will follow its prior acts and rule against the DACA program. If, as expected, the program is found unconstitutional by the Fifth Circuit, the Trump Administration is unlikely to appeal a negative decision, spelling the end for the DACA program.
To recap the most important elements – clients concerned of possible travel restrictions should return to the U.S. before January 21st, and clients that have moved worksite location or otherwise had a material change to their existing H-1B status should immediately contact counsel to ensure their H-1B is not voided. We will continue to monitor and report on changes as they are introduced and as policies develop that have an impact on our clients. Given the significant changes we expect in the first two weeks of the Trump Administration, please pay attention to our updates. As with the COVID Pandemic and previous Trump Administration, we promise to only share important updates with relevant information that our clients need.
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.