As the political landscape continues to fluctuate across the nation, immigration law and policy is similarly going through noteworthy changes. These changes are more than the public outcry we observe in nationwide pro-immigration rallies advocating for fairness and the humane treatment of the young immigrant children separated from their parents. The effects of the current immigration debate are also silently impacting businesses and employees in a significant manner. Employers who hire foreign employees must be on the offense and ready for any government action at any time.
Heightened Scrutiny for Nonimmigrant Visa Petitions and Applications
Generally, following the recent “Buy American and Hire American” Executive Order (“BAHA”), all employment-based nonimmigrant visa petitions and applications are receiving heightened scrutiny. Below are some examples of recent developments.
H-1B Visas:
- There is a current rise in aggressive adjudication. For example, H-1B requests for additional information have increased by more than 40%. This is evidence of the Administration’s efforts to give greater scrutiny to H-1B petitions.
- Employers with many H-1B employees, as well as those who are “H-1B dependent,” may receive more denials than in the past.
- Increasing H-1B denials in computer-related positions.
- Deference to prior approvals no longer exists. H-1B extensions are subject to the same level of review as new petitions, requiring the same level of documentation and proof as a new H-1B petition.
- Heightened review and analysis is now being applied by U.S. Citizenship and Immigration Services (“USCIS”) at the petition stage, by U.S. Department of State (“DOS”) at the visa application stage, and by U.S. Customs Border Protection (“CBP”) when an individual seeks admission.
- USCIS and DOL have also increased the number of employer site visits and audits.
L-1 Visas:
- There is a current rise in aggressive adjudications.
- Heightened scrutiny is applied by USCIS at the petition stage, by DOS at the visa application stage, and by CBP when an individual is seeking admission to the U.S., or, if a Canadian is seeking admission on an L-1 visa, at a port of entry or preclearance location.
- L-1 adjudication standards, particularly those involving L-1B specialized knowledge, are increasingly unpredictable. The denial rate has increased by 30%.
- Processing of L-1 blanket petitions at U.S. Consulates are increasingly more rigorous.
- Deference to a prior approvals no longer exists. L- 1 extensions are subject to the same level of review as new petitions.
- In an effort to find and combat fraud, USCIS is expanding site visits to include L-1 employers.
- Employers must be aware that USCIS recently began publishing data about L-1 petition approvals, listing each company by name along with the number of approved petitions.
TN Visas:
- U.S. employers who hire Canadian and Mexican professionals with TN visas, under the North American Free Trade Agreement (“NAFTA”), may have to reconsider other alternatives as the future of NAFTA is in question.
Increase in USCIS Site Visits, Raids and Audits
- USCIS Fraud Detection and National Security (“FDNS”) and the U.S. Immigration and Customs Enforcement (“ICE”) have increased site visits to all businesses, particularly where fraud is suspected for undocumented workers and employers who hire them.
- ICE has significantly increased I-9 inspections and audits to verify employment authorizations and to determine substantive paperwork violations.
- ICE’s plan to quadruple worksite enforcement is on target:
- ICE recently announced it performed 3,510 worksite enforcement investigations between October 1, 2017 and May 4, 2018, as compared to 1,716 in the previous fiscal year.
- Government statistics show that between October 1, 2017, and May 4, 2018, ICE performed 2,282 I-9 audits, as compared to 1,360 audits in the previous fiscal year.
Understanding the Definition of “Legal Immigration Status”
Now more than ever, it is critical that both employers and workers have sufficient understanding of how to navigate the definition of “legal immigration status.” Understating how to protect your business and work force with the ever-changing immigration trends remains essential.
If you have any questions regarding professional visas or any immigration issue affecting an employer, please contact Cristina Perez. Cristina is Chair of Leech Tishman’s Immigration Practice Group, and a Partner in the firm’s Corporate Practice Group. Cristina is based in the firm’s Pasadena office and can be reached at 818.550.8300 or cperez@leechtishman.com.
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