Trump administration’s year-end agenda could have major impact on future immigration matters

The Trump administration’s Fall 2019 Unified Agenda of Federal Regulatory and Deregulatory Actions was released in mid-November and could have a wide-ranging effect on future immigration matters.

Below is important information regarding the ways in which different groups could be impacted by the administration’s new immigration proposals:

Corporate employers and employees

The administration’s plans to alter the H-1B and L-1 visa programs could limit businesses’ ability to hire and continue employing foreign nationals:

H-1B visa applicants and holders

The H-1B visa is a temporary visa for employers seeking to fill a "specialty occupation" — which generally requires a bachelor's degree or higher. The duration of an H-1B visa is typically three years and can be extended an additional three years for a total of six (and sometimes longer under certain circumstances).

The Department of Homeland Security (DHS) is seeking to "revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wage."

The agency claims these changes are needed "to ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation" and to make sure "that the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections."

While the DHS is "still considering the cost and benefit impacts of the proposed provisions," its final plan is expected to be released in Dec. 2019.

The U.S. government caps the number of H-1B visas granted each year to 85,000 — 20,000 of which are allocated for foreign nationals who hold a master's or doctorate degree.

The H-1B denial rate has increased from six percent in 2015 to 24 percent through the third quarter of 2019, according to a recent study conducted by the National Foundation for American Policy.

Additional changes to the process to obtain an H-1B visa could be coming by March 2020, information about which can be found here.

L-1 visa applicants and holders

The L-1 (intracompany transferee) Blanket Petition is used to transfer executive, managerial and "specialized knowledge professional" employees from foreign entities of an international group of companies to one or more related U.S. entities.

A "specialized knowledge professional" is currently defined as a transferee who has gained knowledge of a company’s product, service, research, equipment, techniques, management or other interests and who possesses a four-year university degree.

However, that may soon be changing.

The DHS announced earlier this month that, "in order to improve the integrity of the L-1 program," it will "propose to revise the definition of specialized knowledge, to clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders."

Obtaining an L-1 visa has already become more arduous under the Trump administration, according to multiple reports over the last year.

Forbes reported in mid-November that "U.S. consular officers are making it extremely difficult, and in some cases nearly impossible, for U.S. companies to transfer their employees from India into America on L-1 visas."

Students

The DHS appears set to continue to implement stricter guidelines for the Optional Practical Training (OPT) program.

OPT may be authorized for one year in an occupation that is directly related to an individual’s major area of study and allows certain students who receive science, technology, engineering or mathematics (STEM) degrees to apply for an additional 24 months of post-completion OPT.

The administration announced in the agenda that it is planning to have Immigration Customs Enforcement (ICE) "amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas."

ICE began performing random site inspections targeting individuals in the OPT program in early July, with the number of visits picking "up speed" since then, attorneys told Law 360 last month.

At least two other items listed in the agenda could further impact students, according to Forbes. One proposal aims to have ICE "vet all designated school officials (DSOs) and responsible officers (ROs), who ensure that ICE has access to accurate data on covered individuals via the Student and Exchange Visitor Information System (SEVIS)," while another would provide "a maximum period of authorized stay with options for extensions for each applicable visa category."

The number of new international students enrolled in U.S. colleges declined by more than 10 percent from the 2015-16 academic year to 2018-19, according to an earlier report from Forbes, which analyzed data from the Institute of International Education’s "Open Doors" study.

Meanwhile, top education officials from around the country have taken issue with the increased challenges to obtain a visa to study at colleges and universities.

Harvard president Lawrence S. Bacow wrote a letter in July addressed to Secretary of State Michael Pompeo and then-Acting Secretary of Homeland Security Kevin McAleenan to share his "deep concern over growing uncertainty and anxiety around issues involving international students and scholars."

"I understand that the responsibility for the uncertainties in today’s immigration policy rest more broadly than just with your two agencies," Bacow’s letter read, in part. "That said, the visa and immigration process is increasingly unpredictable and uncertain. This poses risks not just to the individuals caught up in it, but also to the entirety of our academic enterprise."

The number of foreign nationals attending colleges and universities in Canada has skyrocketed in recent years and the country reportedly passed the United States as the top destination for Indian students earlier this year.

Reaction

Experts criticized the proposals announced in the mid-November agenda, including Doug Rand, co-founder of Boundless and a former White House official during the Obama administration.

"This is basically a restrictionist wish list," Rand told Law 360. "Nobody is spared."

He added: "If OPT goes away, then (businesses are) going to face a severe talent crunch."

Asylum seekers and those looking to immigrate via family sponsorship will also be impacted by the proposals, and Rand speculated it would be difficult for the Trump administration to accomplish everything listed in the plan.

"They continue to have eyes bigger than their stomachs," Rand told Law 360. "There's simply no way you can do two dozen proposed rules in a year."

Some of the agenda could be blocked by the courts, as well, Lynden Melmed, former Chief Counsel for United States Citizenship and Immigration Services (USCIS), told Forbes in a recent interview.

"Undoubtedly they will push the boundaries and aim for long-term, structural changes to the H-1B visa category," Melmed said. "But absent new authority from Congress, going too far risks a court injunction and they could end up with nothing."

Garfinkel Immigration Law Firm continues to monitor the situation closely and will reach out and advise as it impacts our clients.

As always, please do not hesitate to call us at 704-442-8000 or contact us via email with any questions.

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