With the 2020 election on the horizon, the coming year promises to be a big one for employment-related immigration developments. Here’s a roundup of the top five stories to watch:
- H-1B Changes
- H-4 EAD
- USCIS Fee Increases
- Increased I-9 Audits & Site Visits
- Restrictive CBP Border Policies
H-1B Changes
Employers should expect big changes to the H-1B visa program in the coming year.
In March, U.S. Citizenship and Immigration Services (USCIS), the government agency that oversees the H-1B program, will roll out a new H-1B registration system. Employers will be required to use the system to electronically pre-register for the H-1B lottery, which is held in April to determine who will receive H-1B visa numbers from the 85,000 allocated each year by Congress. Pre-registration has the potential to streamline the H-1B filing process but could lead to increased filings overall, which in turn could cause problems for smaller companies trying to compete for the coveted visas.
Also expect to see a new proposed rule from USCIS that would limit H-1B eligibility to occupations with very specific educational requirements for entry – making it harder to obtain H-1Bs in interdisciplinary and emerging fields, like marketing analytics. The proposal likely will reflect how the agency already is treating H-1B petitions, but codifying the practice will make it more difficult to challenge visa denials in federal court.
H-4 EAD
March 2020 is the target date for a proposed rule to rescind the H-4 EAD, which allows the spouses of certain H-1B visa holders to work. Statistics indicate that the vast majority of H-4 beneficiaries are women from India who, prior to enactment of H-4 EAD in 2015, had very few opportunities to earn a living outside the home. If the H-4 EAD is taken away, many H-4 spouses will face 10 to 15 years or more waiting for a green card, and the ability to rejoin the workforce, due to per-country limits.
If the rule is published, expect many comments, which will delay enactment of the final rule.
USCIS Fee Increases
Employers can expect to pay more for work visas in 2020 if the latest fee schedule proposed by USCIS is implemented. The proposal would hike fees by more than 50 percent for an array of employment-based benefits. For example, the fee for filing an L-1 petition would increase by as much as 77 percent, and O-1 filing fees would rise by as much as 55 percent. The proposal also includes changes to USCIS forms and benefit request requirements, and would increase the time USCIS has to process premium processing requests.
USCIS’s budget has already increased by more than 30 percent over the last four fiscal years. Yet the agency’s average case processing time climbed by 91 percent during the same period. USCIS has tried to attribute delays to high application rates, but according to the agency’s own data, application rates have actually been on the decline. The real reason for the growing case backlog has to do with USCIS’s new policies and practices under Trump. For example, the agency has expanded in-person interview and fingerprinting requirements for a variety of case types. USCIS has also been issuing unprecedented numbers of Requests for Evidence (RFEs), seeking more paperwork from applicants or petitioners in connection with pending benefit requests.
The proposed USCIS fee schedule and changes to benefit request requirements have been met with strong opposition, garnering over 10,000 comments. Still, the proposed rule is expected to pass and go into effect sometime this year. It remains to be seen what, if any, actions USCIS will take to address the record-breaking and still growing backlog of pending immigration cases.
Increased I-9 Audits & Site Visits
U.S. Immigration and Customs Enforcement (ICE) conducted an unprecedented number of I-9 audits in 2019, issuing Notices of Inspection (NOIs) to more than 3,000 companies in the month of July alone. A company that receives an NOI has three days to produce all of its I-9s for ICE review. The I-9 audit surge is expected to continue in 2020, and employers are strongly advised to be prepared.
USCIS has indicated it will also continue to ramp up its investigative efforts, namely through random and targeted visits to H-1B and L-1 employer worksites conducted by its Office of Fraud Detection and National Security (FDNS).
Restrictive CBP Border Policies
U.S. Customs and Border Patrol (CBP) has indicated it will continue to apply heightened scrutiny to Canadian nationals seeking work visas – like the TN and L-1 – at the border. Based on recent trends, border applicants will likely have a harder time applying for TN classification under NAFTA, especially if their U.S. jobs involve any managerial responsibility. Those seeking to renew their L-1 classification at the border should expect to be refused by CBP and will likely need to apply through USCIS in order to re-enter the U.S. for work. All travelers seeking to enter the United States from Canada, whether entering for the first time or returning from work trips or vacations, should be prepared for more intensive border patrol questioning and vetting in 2020.
What you can expect in 2020 looks much like what we have seen escalating year over year since 2017: the Trump administration systematically targeting skilled and legal immigrants and their sponsoring employers by making the process increasingly costly, more confusing, and time-intensive.
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 January 15, 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.
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