What Employers Need to Know about the RAISE Act and Other Immigration Initiatives under Trump

Hannah F. Little, Esq., Partner
N.C. Board Certified Immigration Law Specialist
Hannah.Little@garfinkelimmigration.com

RAISE Act

On August 2, 2017, Senators Tom Cotton and Sonny Perdue introduced the "Reforming American Immigration for a Strong Economy" (RAISE) Act. While the bill is not currently expected to be passed by Congress, it is worth noting that the administration's support of the proposal signals potential drastic changes for employment sponsored immigration.

The RAISE Act would result in a significant reduction in the level of legal immigration through the elimination of the Diversity Visa Lottery Program, the elimination of some family based categories, and an annual quota of 50,000 refugees eligible to become Permanent Residents.

The current U.S. employment based immigration system allows employers to select the workers they need, subject to U.S. laws and regulations. The RAISE Act replaces this demand-driven model with a points based system utilizing a combination of factors, including age, education, English language proficiency, extraordinary achievement, job offer with high paying wage and intent to invest in the U.S. The proposed change would favor younger (25-30 year old)adults, individuals with STEM degrees, and high wage earners.

To be eligible for a green card, applicants would be required to reach a 30 point threshold ( out of a possible 102 points). Applicants would be able to apply 2 times per year to U.S. Citizenship and Immigration Services (USCIS). USCIS would invite candidates with the highest scores to file full applications and undergo security vetting. If the applicant is not selected after 1 year, s/he would have to apply for readmission.

The RAISE Act has been criticized for neglecting to address low-wage immigrants who serve vital roles in the "essential economy," namely the food service and hospitality industries, construction, agriculture, elder care, and manufacturing. Furthermore, experts and economists have pointed out that this legislation is bad for the overall economy as it moves away from admitting individuals based on employers' needs.

Policy Shifts, Extreme Vetting, and "Buy American, Hire American"

President Trump has issued several executive orders regarding immigration. The executive order signed in March 2017 implemented a modified version of the travel ban; it also called for federal departments to develop "uniform screening and vetting standards" to identify terrorists or people who "present a risk of causing harm." The Order directed the U.S. Departments of State and Homeland Security to implement procedures to "enhance the screening and vetting of applications for visas and all other immigration benefits."

This mandate has resulted in stricter adjudication of petitions and applications to change or extend status in the U.S. It has also impacted the adjudication of employment based green cards; USCIS recently announced that beginning on October 1, Foreign Nationals changing from an employment based temporary visa to a permanent one (a "green card") will be required to attend an in person interview. This will significantly slow processing times as it will add over 100,000 interviews to field offices' already overburdened workload.

This mandate has also impacted visa issuance abroad. The U.S. Department of State has directed consular officers to collect additional information from certain visa applicants (using a new Form DS-5535). Applicants required to complete this form must provide extensive information including 15 year travel, employment, and address history, their social media platforms and identifiers, and all phone numbers and email addresses used over the last 5 years.

President Trump has made multiple comments detailing his disdain of the H-1B program. On April 18, 2017, he issued the "Buy American, Hire American" executive order which, in part, ordered the departments of Commerce, Labor, Homeland Security, and State to strictly police the program. His order also proposed substantive changes such as awarding H-1B visas to guest workers with the best skills and highest potential wages; such changes would require cooperation from Congress.

While no formal policy change has been announced by U.S. Citizenship and Immigration Services, employers are currently experiencing a dramatic rise in Requests for Evidence for H-1B Petitions across all industries. The most common Request for Evidence has focused on applications that propose a Level 1 or entry level wage for the job. Immigration practitioners are monitoring this issue closely as it appears that USCIS is not only using a new standard for H-1B petition adjudication but is also intruding upon the authority of the Department of Labor to determine appropriate wage levels.

President Trump has also promised a "more targeted approach" to H-1B site visits to determine whether H-1B workers are serving in the appropriate position at the appropriate work site and are receiving the appropriate wage.

Rescission of DACA

On September 5, 2017, the Trump administration announced it would rescind the Deferred Action for Childhood Arrivals (DACA) program. While the U.S. Citizenship & Immigration Services (USCIS) will immediately halt acceptance of new DACA applications, the program will not officially end until March 5, 2018. Current DACA recipients with permits that expire before March 5, 2018 may apply for a renewal by October 5, 2017. Employment Authorization Documents (EAD cards) remain valid through their validity date, which means most DACA holders will retain work authorization through 2018 or 2019. Many in the business community have reached out to their congressional representatives to urge them to find a solution for these young people. Unless Congress takes action, employers should take steps to prepare for the future loss of DACA employees.

Plan Ahead

Employers must be vigilant in maintaining required immigration compliance documents including, but not limited to, I-9 Forms and H-1B Public Access Files. Each employer who has sponsored a Foreign National should prepare for unannounced site visits by USCIS. Prudent employers will inform their receptionist or security officer of this likelihood and prepare a designated list of responders within the company to handle these visits.

Employers should prepare contingency plans for anticipated delays in adjudications of petitions by USCIS and visa applications by Department of State when foreign national employees travel abroad. These plans should include managing internal workloads and implementing the company's leave policy.

Finally, a close working relationship with immigration counsel is essential to ensure a current, flexible immigration strategy and legal compliance in a constantly shifting environment.