A year ago, we blogged about the changes we saw coming in 2018 for U.S. employers and their employees under the April 2017 Buy American / Hire American executive order. Though widespread across visa and green card categories, those changes have all amounted to increasing obstacles for U.S. companies to hire, retain and sponsor foreign nationals. H 1B workers, their H 4 spouses, F 1 students, TN professionals under NAFTA (to be replaced by the United States-Mexico-Canada Agreement, once approved by Congress), and L 1 managers and specialists who transfer into U.S. companies from related foreign entities – all of these workers, as well as their employers, have been frustrated by dramatically increased processing times, new restrictions on expedited processing, questionable challenges to eligibility, often spurious denials, and generalized errors and oversights by federal immigration agencies. Unfortunately, we expect these trends to continue, and other non-business-friendly changes are also on the horizon.
H-1B Workers Remain in the Cross-Hairs
In Fall 2017, the Department of Homeland Security proposed a new regulation that would do away with its long-standing H-1B lottery system. Over the years, as demand has grown, while congressionally allocated H-1B numbers have remained static, the annual filing period has shrunk to the first five business days of April, and the odds of being selected in the annual lottery have dropped to below 40 percent. On January 31, 2019, as we previously discussed, DHS announced the final rule, which simultaneously: (a) requires employers to pre-register the workers they wish to sponsor and submit petitions only if they are notified that they have been randomly selected to do so; (b) suspends the pre-registration requirement until Fiscal Year 2021; and (c) increases the odds that workers who have advanced U.S. degrees will be selected in the lottery this year and in the future. The last provision appears to implement Buy/Hire American's mandate to "ensure that H-1B visas are awarded to the most-skilled or highest-paid." However, as reported in the Wall Street Journal, court challenges to the new rule are likely, and with only eight weeks to go before the lottery window opens, any injunctions could disrupt H-1B filing season this year.
EB-1 Worldwide Waiting List Remains Backlogged
As subscribers to our blog were informed last fall, a surprising backlog developed in summer 2018 in the Employment-Based First Preference green card category. The "EB-1" classification, which includes Outstanding Professors/Researchers, Multinational Managers/Executives, and Aliens of Extraordinary Ability in various fields, is exempt from the usual requirement that an employer prove no qualified U.S. worker is available before sponsoring a foreign national – a preliminary step that often adds a year or more to the overall green card process. In addition, EB-1 demand has been historically low, even for Indian and Chinese workers, in comparison to other categories that have years-long waiting lists. For these reasons, EB-1 sponsorship has traditionally been a much faster path to a green card for the lucky few who qualify. This long-standing state of affairs abruptly changed in August 2018, when a waiting list of more than six years suddenly developed in the EB-1 category for Indians and Chinese and more than two years for all other nationalities. Although the backlogs were expected to vanish in October, when annual allocations were refreshed at the start of Fiscal Year 2019, a wait list of more than a year has persisted for all countries. As we explained in our Law360 article in December 2018, EB-1 backlogs may well be the "new normal" for a combination of technical and political reasons. By regulation, if supply exceeds demand in the EB-4 and EB-5 categories – which include Religious Workers, Special Immigrant Juveniles, International Broadcasters, Panama Canal Zone Employees, Afghan/Iraqi Translators, and Immigrant Investors – those extra green card numbers are allocated to the EB-1 category. Until last summer, a large "spill over" of this kind occurred every year without fail, keeping the EB-1 category current, or causing only brief interludes late in the year, when green cards were not available for Chinese and Indian nationals. With a twelve-fold increase since 2010 in EB-4 Special Immigrant Juvenile filings, due to the surge in unaccompanied minors arriving from Central America, and a five-fold increase in EB-5 Immigrant Investors, we anticipate that the EB-1 category will remain retrogressed for the foreseeable future.
H-4 Work Permits Remain in Jeopardy
A year ago, we predicted that the Trump Administration's threat to eliminate work permits for the spouses of H-1B workers would likely come to pass in 2018. This has not yet occurred, probably because the Administration has had bigger fish to fry, with unprecedented numbers of asylum seekers at the southern border, the resulting family separation crisis, and associated lawsuits. Nonetheless, this item remains a priority on DHS's Fall 2018 regulatory agenda. We anticipate the agency will publish a proposed rule this year and lawsuits will follow.
DACA and TPS Lawsuits Continue
As has been widely reported in the mainstream media, President Trump has ended numerous humanitarian programs, including the Obama Administration's Deferred Action for Childhood Arrivals ("DACA"), as well as Temporary Protected Status for nine nationalities, including several TPS programs that were established more than twenty years ago. As a result of lawsuits filed in multiple states, the government is temporarily enjoined from implementing these actions. Although first-time applicants may not file for DACA at this time, DHS must continue to accept renewal applications. However, since DACA work permits are not eligible for the automatic 180-day extension that other work permit categories enjoy, and since USCIS processing time for renewals varies from five months to more than two years at the regional service centers that handle them, DACA workers and their employers continue to face substantial disruptions.
Similarly, the government is prohibited from carrying out TPS terminations while three federal lawsuits move through the courts. Two of those lawsuits challenge terminations for El Salvador, Honduras and Haiti; the third seeks protection for TPS beneficiaries of any nationality who have U.S. citizen children. Until the injunctions are lifted or the lawsuits resolved, TPS renewals may continue to be filed, and these workers do benefit from the 180-day automatic extension.
Please subscribe to our blog and stay tuned for the second installment of our 2019 forecast, which will cover the F-1 student visa category, worksite visits and other compliance and enforcement actions, and the impact of changes to the "public charge" rules.
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.