“Outlook 2018: More Scrutiny, Enforcement for Employment Visas"

12/20/2017
Bloomberg Law


“Increased scrutiny of visa applications, greater enforcement, and a rollback of Obama administration regulations, programs, and guidance are likely to dominate immigration policy in 2018.

“‘It’s really been the first administration where immigration has been a high priority’ and ‘an area of personal interest to the president,’ Austin Fragomen of Fragomen, Del Rey, Bernsen & Loewy in New York said…

“…Agencies involved in the immigration process will remain focused on protecting U.S. workers, in line with President Donald Trump’s priorities. That focus includes implementing the president’s Buy American and Hire American executive order, which prioritizes the hiring of U.S. workers. It also directs the agencies to find ways to ensure that H-1B specialty occupation visas go to the most skilled and highest-paid candidates.

“U.S. Citizenship and Immigration Services wants to ensure that H-1Bs and other employment visas with annual caps are ‘intended to be for the best and the brightest, the highest paid, the most educated,’ Kevin Cummings of the USCIS’ Office of Policy and Strategy said at the Citizenship and Immigration Services Ombudsman’s annual conference in December.

“The USCIS is undertaking a ‘thorough review of employment-based immigration programs’ to ensure that they ‘benefit the American people to the greatest extent possible,’ USCIS Director L. Francis Cissna said at the conference.

“That includes ‘a combination of rulemaking, policy memoranda, and operational changes’ in line with the executive order, a USCIS spokesman told Bloomberg Law. 

“…The USCIS’s most recent regulatory agenda shows plans for regulations overhauling the H-1B program. The agency is planning a new definition of ‘specialty occupation’ to ensure that the visas go to ‘the best and the brightest foreign nationals.’ 

“…The Department of Homeland Security as a whole is undertaking the ‘extreme vetting’ Trump called for during his campaign, DHS Deputy Secretary Elaine Duke said at the CIS Ombudsman’s conference. ‘We’re spending more time with each case,’ she said.

“The additional scrutiny also could translate to longer, more complex immigration forms, Betsy Lawrence, director of government relations for the American Immigration Lawyers Association, told Bloomberg Law.

“The additional scrutiny of visa applications is likely to be accompanied by increased enforcement measures.

“Immigration and Customs Enforcement Acting Director Thomas Homan has promised a fourfold increase in work-site enforcement actions, to include actions against both employers and undocumented workers.

“…The additional scrutiny could cause a drop in H-1B petitions next year…

“…Foreign nationals also may rethink whether the U.S. ‘is the right place for them’ if getting a visa is too difficult or time-consuming…

“…The Trump administration also is likely to continue rescinding the policies of its predecessor.

“Chief among the expected rollbacks is a 2015 regulation that has provided more than 104,000 work permits to the spouses of H-1B workers who are waiting for their green cards to become available. The USCIS announced its plans to rescind the rule in its most recent regulatory agenda.

“…Also likely to be rescinded or scaled back is a 2016 regulation that allows international students with science, technology, engineering, and mathematics degrees to work for up to three years post-graduation. ICE said it plans to revamp the optional practical training program ‘to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas.’

“…In addition, the USCIS is working to rescind a 2017 regulation that admits international entrepreneurs to start businesses in the U.S. A proposed rule was submitted to the White House’s Office of Management and Budget in December.”

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