Michele Madera of Klasko Immigration Law Partners

It's shaping up to be yet another eventful year for immigration in 2018. As we have seen over the last year, the current presidential administration is working tirelessly to discourage legal immigration, as well as increase enforcement actions against undocumented immigrants. This trend promises to continue into the next year, as we have seen through several proposed changes to U.S. immigration regulations that are scheduled to be published for notice and comment, in addition to changes in policy. The proposals for changes to the regulations, and the changes to policy, each will have a distinct impact U.S. immigration, as well as on employers who rely on foreign nationals to supplement their workforce.

U.S. Citizenship and Immigration Services announced that it is “clarifying—that is, restricting— the definition of which employees with economics degrees may enter as professionals under the North American Free Trade Agreement (NAFTA). Previously, the occupation of economist had not been narrowly defined for purposes of the TN category under NAFTA. Professionals who use their economics degrees in a variety of financial, analytical and business informatics positions have successfully entered the United States in TN status. However, the new guidance defines economists as engaging primarily in activities consistent with the profession of an economist—conducting research, preparing reports and formulating plans to address economics problems, or monetary and fiscal policy. The guidance specifically calls out other occupations related to economics, such as financial analysts, marketing analysts and market research analysts, as no longer eligible for the TN classification of economist.

U.S. Customs and Border Protection (CBP) has also revised its policy regarding searching electronic devices at U.S. borders. CBP may now conduct a basic search of an electronic device by requesting access to it and, if necessary, bypassing encryption or password to gain access, without any individualized suspicion. The officer should not access any information stored remotely, thereby only accessing information resident in the device without network connectivity. This was aligned with prior policy. Now, CBP can also conduct an advanced search. The advanced search allows CBP to review, copy and/or analyze its contents, if they have reasonable suspicion of illegal activity or national security concerns. CBP has increased its use of electronic searches greatly in 2017. In 2016, it searched just over 19,000 devices, in 2017, more than 30,000.

The Department of Homeland Security (DHS) also announced that it is terminating temporary protected status (TPS) for approximately 200,000 Salvadorans in September 2019. Citizens of El Salvador were first granted TPS status in March 2001, and have been subject to extensions of this temporary status. This will leave approximately 200,000 people with the option to either depart the United States, or remain unlawfully and face possible deportation. DHS indicated that it provided a long window until the expiration of the program to allow Congress to implement a legislative solution, so that those who have lived, worked, and established lives and families in the United States can remain. Congress also still needs to address the DREAM-ers, who had the Deferred Action for Childhood Arrivals program canceled in 2017.

DHS plans to propose removing the regulation that allows certain H-4 spouses of H-1B nonimmigrants to obtain employment authorization. H-4 employment authorization is limited to situations where the H-1B beneficiary has been in the United States for a long period of time and has reached a specific milestone of the permanent residence process. This benefit became a rule under the Obama administration to allow spouses the opportunity to work in the United States when they are facing long backlogs to the permanent residence process. Taking away this benefit will cause employers to face turnover, as well as impact the lives of many families who have benefited from a spouse being able to work outside the home.

The Notice of Proposed Rulemaking (NPRM) Is Scheduled for February

DHS is also proposing to revise the definition of specialty occupation, a requirement for the H-1B visa, it says, “to focus on the best and brightest foreign nationals, as well as adjust the definition of employment and employer/employee relationship to better protect U.S. workers and wages.” It will also propose additional requirements to ensure employer pay H-1B visa holders the appropriate wages. This action is a direct result of President Donald Trump's Hire American, Buy American Executive Order. Currently, the H-1B category is reserved for professionals working in a specialty occupation, meaning that the position requires at least a Bachelor's degree in a field related to the proffered position. There is no requirement that the foreign national be the best at the job, or the brightest. Rather, the H-1B category is reserved for employers who require a foreign national with the right related education (and in some limited cases, experience) necessary to perform in this highly complex and specialized role. The revision to the definition of employer and the employer/employee relationship is not yet described. However, it seems that this will be targeting third-party placements/consulting firms. By revising this relationship, it may have a dramatic impact on both immigration law and employment law. Currently, most consultants are not treated as employees of the end-client and the end-client is limited in its responsibility. If this definition changes, we could see the end-client become more responsible for contractors. This rule also may have additional compliance requirements to demonstrate that H-1B beneficiaries are being paid appropriate wages, as well as ensuring that the U.S. workers are making similar wages. The NPRM is anticipated for October 2018.

DHS continues to propose developing an electronic registration program for H-1B petitions subject to numerical restrictions, also known as the H-1B cap. This pre-registration program would significantly alter the current H-1B cap process, as only employers that obtained a cap number would submit the full H-1B petition filing. However, there is a caveat as the evaluation of this process will be considered along with the agency's goal to ensure H-1B cap cases are provided to the best and brightest foreign nationals. The NPRM would be February 2018.

Immigration & Customs Enforcement hopes to propose new requirements for the employment of students on F and M visas for students/vocational students, based on a claimed need to reduce opportunities for fraud and abuse during the practical training period of the visa. This change would include increased oversight of the schools, as well as the students who participate in the program. This may be similar to the additional oversight requirements employers and universities face as part of the additional practical training time allocated to foreign students obtaining a degree in a STEM field. It may require employers to attest to the training components of the positions, as well as how they relate to the degree, and have the universities sign off on these programs. The NPRM is scheduled for October 2018.

DHS will introduce regulations to rescind the International Entrepreneur Rule (IER). The IER has had a difficult path in its short life. President Barack Obama's administration introduced this rule, which was finalized in January 2017, to take effect on July 17, 2017. The current administration delayed the effective date of the IER on July 11, 2017; however, in the last few weeks, the rule has taken effect as the U.S. District Court for the District of Columbia found that the delay of the rule was improper as DHS bypassed the traditional notice and comment period for rulemaking. Currently, USCIS is accepting applications for IER; a final rule would put an end to that. International entrepreneurs are eligible to apply for employment authorization if they have established a business in the United States and can demonstrate substantial potential for rapid business growth and job creation, including receipt of capital investment from U.S. investors or awards/grants from government entities. The date for this is November 2017. As such, it is unclear how quickly DHS will prepare this proposal, as it has already missed its targeted timeframe.

Finally, there were rumors that DHS is reviewing the language that allows many H-1B beneficiaries to remain in the United States beyond the six-year maximum stay when they are facing long backlogs due to quotas in the permanent residence process. This has been a long-standing policy of 17 years. There was a caveat to this regulation that said, DHS “may grant” this type of extension in three-year increments, if the person meets the requirements. The rumor was that DHS was reviewing the “may grant” language to determine if it can stop approving these H-1B extensions. After the immigration and business communities spoke out regarding the proposed change, DHS released a statement that they are not considering a change to this rule.

The reversal demonstrates the importance of employers and businesses monitoring developments and participating in the regulatory process, as well as interacting with their congressional representatives, to provide input as to how these changes will affect them and their businesses. This pressure results in DHS reviewing its proposals, which is essential to ensure that legal immigration may continue and that businesses can have the employees that they require to be successful.