The January 30, 2018 State of the Union became another chapter in President Trump’s ongoing campaign for America to serve its own needs and its people first. Embodying this ideology, President Trump declared that, “we will follow two simple rules: Buy American and Hire American.”
During his first term, those two simple rules have dramatically changed the immigration process into the United States. Although Congress has yet to pass immigration reform, President Trump has issued several executive orders that have overhauled the United States immigration system. Trump’s first year has made it more difficult for employers to sponsor or hire immigrant workers and following Trump’s State of Union employers should not expect it to become easier to hire immigrant workers during the Trump’s tenure.
The President has the power to implement a travel ban if the President finds that the entry of any foreign national or class of foreign nationals would be “detrimental to the interests of the United States.” In his first year, President Trump signed three executive orders that placed restrictions on travel and immigration into the United States by certain foreign nationals from specific countries.
The first two executive orders were enjoined – given no legal effect – by U.S. district and circuit courts. However, the Supreme Court has never ruled on the legality of either because the President had replaced each order with an updated version.
Trump’s third travel ban was signed on September 24, 2017, and imposes travel restrictions for certain foreign nationals as a result of a worldwide review conducted by Secretary of Homeland Security. The new travel ban is different than the previous two because it is tailored to the specific conditions in each country, rather than being a blanket restriction on all immigration from a specific country. For example, business and travel visas were suspended indefinitely for immigrants from Chad, but all visas, other than student visas, were suspended for immigrants from Iran.
Trump’s third travel ban has been enjoined by district courts in Maryland and Hawaii, but the Supreme Court allowed the third travel ban to go into effect while travel ban is litigated further. Lower courts have expressed concerns that President Trump’s campaign rhetoric suggests that any travel ban, regardless of how the travel ban is phrased, would be implemented specifically to target and limit Muslim immigration. In contrast, the Trump administration has argued that the third travel ban does not target Muslims, but rather, is based on the Secretary of Homeland Security’s worldwide review.
The Supreme Court may ultimately have to review Trump’s third travel ban to decide its legality, but until then employers should carefully manage the process and communicate changes with any current or future employees from travel restricted countries.
Under the Trump Administration the U.S. Citizenship and Immigration Services (USCIS) has changed the standard it uses to review applicants for the H-1B visa. The H-1B visa allows employers to sponsor a qualified candidate having at least a college degree or the equivalent for a professional position in the U.S. workforce (see our articles on H-1B visas). In particular, this visa has been used largely in industries that required specific, technical training such as information technology.
The USCIS made three major changes under the new standard. First, the USCIS will not consider a job to meet the H-1B standards if the job requires a degree that is not the standard minimum for the field. For example, a job will not meet the H-1B standard if it requires a degree in computer programing but the industry typically requires a degree in computer science. In so doing USCIS will no longer consider entry-level programmer positions to meet the H-1B standard (a reversal from its previous policy) based on the position that the entry-level positions do not always require the job applicant to hold at least a college degree or its equivalent.
Second, if an entry-level job is found to not meet the H-1B requirements of a specialty occupation, then the employer must prove evidence that this particular job in fact meets the specialty requirement.
Third, the USCIS will consider entry-level wages as a sign that the position does not qualify for the H-1B visa. Entry-level positions are now presumed to be fill-able by the domestic workforce because entry-level positions do not require specific skills or experiences.
The level of scrutiny applied to H-1B visas is likely to continue with the new USCIS Director, Francis Cissna, making it clear that under her leadership USCIS will protect American jobs. Employers should ensure that they are complying with the new USCIS standards to ensure H-1B visa requests are granted.
The RAISE Act
The RAISE Act was introduced in Congress in 2017 but it never gained enough traction to become law. As introduced, the RAISE Act would overhaul the immigration system by replacing the current classification-based system with a merit-based point system. Under a merit-based system, foreign nationals with higher English proficiency, education, high-paying jobs, extraordinary achievements, and large investment portfolios would be given preference. Further, immediate family members (spouses and minor children only) for U.S. citizens and permanent residents would continue to receive visa preference, while all other family-based preference categories would be eliminated.
If the RAISE Act does pass, employers will need to find applicants that can acquire enough points to obtain a visa. The Trump administrations emphasis on Buy American and Hire American suggests that employers will not be able to obtain visas for their employers unless the foreign national is very well educated and the job is very highly compensated.
Currently, DACA (or Deferred Action for Childhood Arrival) is set to expire on March 5, 2018, which will revoke nearly 800,000 visas awarded to individuals who were brought to the United States by their parents. Currently, extended DACA is being negotiated in Congress as part of the compromise for increasing the national deficit.
If DACA expires employers will need to ensure that employees previously granted a visa under DACA are still eligible to work in the United States. Further, employers should rely primarily on their I-9 verification process and avoid refusing to hire someone just because their DACA status will expire in the future.
Enhanced Visa Fraud Detection
President Trump has prioritized visa fraud detection and expanded the resources and capabilities of the Department of State. For example, the Department of State may now add a Passport Security Surcharge, an additional fee to ensure that the foreign government validly authorized a foreign national’s passport. Additional fraud prevention means employers should expect employees to experience delays and increased security checks during the immigration process.
Going Forward: 2018 Plan for Restricting Legal Immigration
The White House released an immigration reform plan that could cut legal immigration by as much as 44% over the next several decades. The plan seeks to eliminate diversity visas – see our article on diversity visas – as well as all family-sponsored visas other than for minor children and spouses. Dramatic cuts to legal immigration will decrease the total workforce and increase competition among employers for qualified applicants.
Additionally, while the Trump administration has stepped up its efforts to stop illegal immigration and remove those who have entered the country illegally, Immigration and Customs Enforcement (ICE) continues to conduct raids across the United States in sanctuary cities, homes, and workplaces.
President Trump may not have built the wall he promised, but in Trump’s first year his administration has succeeded in adding barriers to the immigration process. Employers should not assume that the Trump administration is only concerned with illegal immigration, but rather, should be prepared for decreased legal immigration, delayed visa renewal, and difficulty sponsoring future employees.