Editor’s note: This is a sponsored commentary article written by Kevin Miner, a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP.
President Donald Trump was inaugurated as the 45th President of the United States six months ago July 20, promising substantial changes to the nation’s status quo on immigration.
On that point, he has been consistent. Changes to the immigration landscape have been some of the new president’s most visible actions — from enforcing existing laws to enacting executive changes, some of which have been challenged in the courts.
The pace has been dizzying, to the point of nearly daily activity from the White House on what has traditionally been a controversial topic. It started nearly immediately with the “travel ban” Executive Order issued Jan. 27, which barred entry into the United States by citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.
Then came stepped-up arrests and deportations of undocumented immigrants, followed recently by the delay of a regulation that would have provided new temporary immigration options for foreign national entrepreneurs looking to start businesses in the United States.
Mr. Trump can’t do everything with a stroke of a pen. Large-scale immigration reform, particularly on areas of high-skilled immigration relevant to globally competitive companies, requires congressional action. And the government is required by the Administrative Procedure Act to post proposed policies for public comment. So far, we’ve seen no significant regulations proposed relating to high-skilled immigration.
Gaining access to talented foreign nationals will require careful attention and planning with immigration policy in a state of flux.
Still, the president has changed the way the agencies in charge of managing the process do their jobs.
On April 18 President Trump signed the “Buy American, Hire American” executive order, which ordered the Department of Homeland Security, the Department of State, and the Department of Labor to conduct a full review of existing regulations and procedures and propose changes to ensure that the system will “protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”
Moreover, the executive order specifically addressed H-1B visas, which are the most common visa used by technology companies, investment firms and manufacturing companies to hire foreign nationals for high-skilled roles in such areas as engineering, computer science, and finance.
The executive order directs a review of the H-1B program to “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Not only is this review ongoing, but the agencies have already made certain changes relating to the adjudication of H-1B petitions.
First, United States Citizenship and Immigration Services, which processes H-1B and other immigration petitions filed by employers) temporarily suspended premium processing of H-1B petitions effective on April 3. The Premium Processing program allows employers to pay an additional $1,225 processing fee to have a petition processed within around two weeks rather than the six to eight months that petitions normally take in the regular processing queue. For an employer seeking to hire an H-1B worker from abroad, this suspension has significantly delayed the ability of that worker to come to the U.S. to fill a vacant role. It is unknown how long the premium processing suspension will last.
Secondly, USCIS is instructing its staff to review whether certain entry-level positions really qualify under the visa’s restrictions. With regard to entry-level software engineering positions or similar roles, immigration attorneys are now receiving USCIS requests for evidence that the positions qualify, citing entry-level wages listed on the position.
If USCIS begins to deny H-1B petitions on this basis, employers could find it increasingly difficult to fill vacant positions with talented foreign nationals who have graduated from American colleges and universities.
Trump has also recently delayed implementation of the “International Entrepreneur” visa program, which would have let Homeland Security grant “parolee” status to foreign nationals who could prove they were starting a business in the U.S. that met certain funding and growth criteria.
On July 10, a week before the Obama-era change was set to go into effect, the Trump administration it would push back the date of implementation to March 14 of next year. Some believe the tactic is a way to buy time before ultimately rescinding the rule altogether.
And finally, Trump is taking further steps toward his promise of instituting “extreme vetting” procedures for foreign visitors to the United States. The State Department on July 12 instructed consulates that it is beginning to develop new requirements on information the United States will require of foreign governments whose citizens seek to gain a visa into the U.S.
While nothing is changing immediately, the guidance indicates that new requirements may soon be implemented, such as a requirement for biometric images on passports and access to criminal records of visa applicants.
The guidance indicates these changes will be implemented on a country-by-country basis, but ultimately these kinds of restrictions could directly affect not just tourists coming to the U.S. but high-skilled workers as well. In the meantime, even if a visa stamp can ultimately be obtained, employers can expect increased delays in visa application processing and in some cases a refusal to issue the visa altogether despite USCIS already having approved and H-1B, L-1, or other work visa for a talented and well-educated foreign national.
This might just be the tip of the iceberg in changes coming to high-skilled immigration, and gaining access to talented foreign nationals to fill critical positions — including many students graduating from top American colleges and universities — will require careful attention and planning.