On Oct 13 2020 by Andrew J. Zeltner

Critical Developments in US Employment-Based Immigration

As the presidential election approaches, U.S. Citizenship & Immigration Services (“USCIS”) has announced some potentially transformative regulatory changes. Likewise, the federal courts have also been active with litigation challenging the flurry of Trump Administration actions (which are often announced without going through standard “notice and comment” rulemaking procedures). Just in recent days, we have seen USCIS announcements to increase expedited processing fees, while the agency’s request to substantially increase filing fees was temporarily halted in federal court. In addition, the administration’s H-1B and L visa ban was stopped by a federal judge in California (although that ruling appears limited to the plaintiffs’ in the case.)

Large Filing Fee Increases on the Way?

On October 1, President Trump signed a continuing resolution bill that makes significant changes to USCIS’s premium processing program. The bill imposes a 73% increase in fees for some categories and adds a week or more for case processing. On a positive note, the bill expands the visa categories that can utilize premium processing to include all employment-based visas, many dependent categories, and applications for employment authorization. While broadening the scope of premium processing is welcomed, the draconian fee increases may practically foreclose this option for many workers.

A federal judge has also blocked USCIS’s plan to substantially increase its filing fees, which was scheduled to go into effect on October 2, 2020, with a preliminary injunction (Immigration Legal Resource Center v. Wolf). The rule would have increased USCIS filing fees significantly for companies hiring or transferring foreign nationals, new U.S. citizens, and international students filing for work authorization, among most other employment-based categories. Some categories would have seen an increase of 75-85%. Sadly, the rule would have also established the country’s first-ever fee to apply for asylum.  

In its opinion granting the injunction, the Court held that DHS Acting Chief Chad Wolf and Acting Deputy Secretary Ken Cuccinelli were improperly appointed. The judge also found that the rule violated the Administrative and Procedures Act, and also rejected USCIS arguments that the fee increases were necessary to avoid furloughs and increased processing times, as USCIS failed to produce any data to support such claims.

Impending Assault on the H-1B program

At beginning of September, the Department of Homeland Security announced new regulatory attacks on the H-1B visa program. These sweeping changes are expected to be published imminently and will impose more stringent definitions of what constitutes a “specialty occupation” and will make it harder for employers to place employees at third-party worksites by narrowing the definition of an “employer-employee” relationship. It is anticipated that the regulation will attempt to narrow an issued H-1B approval to a specific length of time for a contract project and limit the time a contractor can be at a third-party site. Of course, these changes are likely to cause disruption and further uncertainty for employers. 

We also expect that USCIS is likely to impose additional requirements on evidencing that a bachelor’s degree in a specific field is required for a particular position and will be reluctant to approve such cases, even if only a small minority of employers do not require a degree. As a practical matter, these changes will make it even more difficult to obtain an H-1B and will also impose challenges for students earning degrees in emerging fields such as data analytics, as it may be more difficult to evidence that such a degree is required or related to the offered position.

The President is Not a King/The H-1B-L-1 Visa Ban

On October 1, 2020, a federal court also overruled the Trump administration’s June 22 travel ban that suspended the issuance of visas in the H, J, and L categories. The litigation (NAM vs. DHS) was filed by the National Association of Manufacturers (NAM), the U.S. Chamber of Commerce, and the National Retail Federation, along with two companies, Technet, and Intrax, Inc.

The decision noted that the President’s executive order expressly invalidated the sections of the Immigration and Nationality Act (INA), creating these visa categories. In a significant rebuke, the judge ruled that the president does not have “monarchical power in the immigration context” and does not have the authority to completely vitiate the INA. The Court’s decision serves as an important check on executive authority in the immigration arena and recognizes that a president’s authority is not unfettered.   

As the election draws near, the Trump Administration has clearly ramped up its efforts to attempt to dismantle the legal immigration system. The Administration has engaged in a calculated attack on legal immigration pathways under the false pretext of protecting American jobs. This assault is not without consequences, as it has made the U.S. less competitive in an increasingly global workforce. These actions have also led to the loss of key human capital, as well as stoking fear in our nation’s best and brightest international students, who are questioning whether they have a viable future in the U.S. In a world of uncertainty, I think one thing can be stated definitively–the outcome of the next election could not be more impactful to the future of immigration in our country. Please make your voice heard and vote. 

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the October 13, 2020 edition of the The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com  877-257-3382  reprints@alm.com.