Editor’s note: This sponsored commentary was written by Kevin Miner, a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, whose Atlanta office is a Global Atlanta annual sponsor.
As we approach the end of the first year of the Trump administration, employers are beginning to feel the practical effects of its “America First” approach to high-skilled immigration.
For many years, business immigration and high-skilled business immigration in particular, has been in some ways simply another business transaction. Employers have found a prospective new hire, discovered the need for an H-1B visa or some other kind of sponsorship, then filed an application with the United States Citizenship and Immigration Service (USCIS) to obtain the appropriate approval. Outcomes were for the most part predictable, and processing was reasonably fast so that business needs and hiring deadlines could be met.
Often that’s still the case, but in some ways, proceeding with those hires has become more difficult and time-consuming, and sometimes it’s not possible at all.
It’s important to note that the law has not changed. The statutes and regulations governing H-1B visas for professionals such as software engineers and financial analysts remain the same, and Congress has made no changes to the rules regarding TN visas for Canadians under the NAFTA agreement or for employment-based green cards.
But on April 18, President Trump signed an Executive Order called “Buy American, Hire American” that directs the federal agencies in charge of immigration to evaluate their processes and identify potential policy changes to ensure that American workers are protected. Targeted toward tougher enforcement of immigration laws, the order aims to ensure that the H-1Bs go to the best-qualified and highest-paid workers.
The agencies involved implementation are noticeably complying. USCIS and other agencies are now questioning the kinds of applications that have always been approved and should continue to be approved based on the applicant’s qualifications and the current regulations.
USCIS has asked why someone needs a medical degree to work as a doctor, or why a financial analyst needs a degree in finance.
At times this has bordered on the absurd: USCIS has issued requests asking employers to explain why someone would need a medical degree to work as a doctor, or why a financial analyst designing complex stock market algorithms needs a degree in finance.
For employers, this has meant slower processing times for those petitions that are eventually approved, as well as greater uncertainty along the way. Most of the time, companies can still get the people they need; it just takes longer.
This spring and summer, USCIS did not allow employers to pay for faster processing of H-1B petitions, causing delays of months to bring on new hires. Applications for visa stamps have become less certain as well. Consular officers at U.S. embassies abroad have been instructed to question visa applicants consistent with the “Buy American, Hire American” Executive Order.
What companies need now more than ever is careful planning in conjunction with their immigration counsel to think strategically, consider more options and prepare meticulously constructed and well-argued cases. In the event cases are denied, employers need to be prepared to re-file or appeal to reach the outcome that the law provides. Business immigration is no longer just another transaction; now it’s an even more complex legal process that needs to be properly planned, guided and executed.
For America to continue to compete at the highest level in the global marketplace, the country needs access to talented foreign nationals who have consistently been shown to help grow the economy and create jobs.
As they prepare for Year Two of the Trump administration in 2018, companies need greater focus to overcome bureaucratic hurdles and bring in the skilled workforce they need to best run their business.