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Immigration in 2017 – What We Know (and What We Don’t) Immigration in 2017 – What We Know (and What We Don’t)

Immigration in 2017 – What We Know (and What We Don’t)

Later this week, Donald Trump will be sworn in as the 45th President of the United States. He has promised sweeping changes in many areas, with immigration at the top of that list. In the coming weeks and months, any number of things is possible that may affect employers and their foreign workers. Here’s what we know:

New I-9 Form. The Immigration Reform and Control Act (IRCA) requires all employers to verify an employee's identity and authorization to work in the United States by completing Form I-9, Employment Eligibility Verification within three business dates of the employee’s first day of employment. This obligation extends to all U.S. employers and all new hires, regardless of citizenship. An updated form was released late last year and will become mandatory on January 22, 2017. The new form includes minor changes to language and formatting, with drop-down lists and on-screen instructions to assist users who choose to complete the form online. Failure to use the new form for new hires after the effective date is a violation and could subject an employer to fines and penalties.

Employment-Based Visa Programs. A new rule affecting certain foreign national workers became effective earlier this week. The rule formalizes long-standing U.S. Citizenship and Immigration Services (USCIS) policies, which is intended to improve consistency in immigration adjudications and provide more transparency and certainty for foreign national workers seeking immigration benefits. Notable provisions of the new rule include the following:
  • H-1B program. H-1B is the most widely-utilized nonimmigrant visa category and is reserved for foreign professionals who serving in specialty occupations. The category is subject to an annual quota, and despite the strict requirements that apply to this visa category (including meeting a prevailing wage for the offered position and posting an internal notice) demand consistently and drastically exceeds the annual allotment each year. The new rule clarifies when foreign workers are subject to this quota and which employers are exempt from the quota requirements. The rule also confirms the circumstances under which H-1B workers may be eligible for continued extensions of the visa status, and it addresses how and when they may change employers without jeopardizing their status and employment authorization.
  • Grace period. Prior to the rule change, immigration status ceased immediately upon termination of employment, leaving foreign nationals with limited options if they wished to seek new employment in the U.S. The new rule implements a 60-day grace period for foreign nationals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN visa categories whose employment has ended, to pursue new employment and visa sponsorship in the same category and with a new employer without necessarily having to first depart the U.S.
  • Immigrant visa program. Foreign nationals who are sponsored for permanent resident status (“green card”) are often subject to lengthy backlogs that could take several years to clear. During this period, changes in employment may affect their overall eligibility. The new rule clarifies when foreign nationals can pursue and accept new employment opportunities and promotions, and it provides better protection to preserve their place in the green card “line.”
  • I-140 EAD. Under prior rules, foreign nationals pursuing green cards were wholly ineligible for Employment Authorization Documents unless and until they had the final step of the green card application pending. Because the backlogs continue to prevent many applicants from filing green card applications for several years, the new rule allows certain foreign nationals to apply for an Employment Authorization Document under limited “compelling circumstances.”
Significant portions of the final rule merely codify existing USCIS policy while portions of the new rule come in response to President Obama’s 2014 Executive Action. Amongst other things, Executive Action directed federal agencies to identify new ways to “modernize and streamline” the legal immigration system. President-Elect Trump has indicated that he will target President Obama’s executive actions on immigration, so whether we will see any changes or challenges directly related to this new rule remains to be seen. The rules affecting legal immigration seem to have garnered less attention than the discussion on illegal immigration, so regardless of how it responds to changes to the employment-based programs, the Trump administration is certainly expected to address illegal immigration in some way. The fate of “the wall,” for example, continues to be a topic of much discussion and debate. Here are other programs that could be affected:

DACA. The Deferred Action for Childhood Arrivals (DACA) program grants temporary relief from deportation through the use of prosecutorial discretion to individuals who were brought to the U.S. as children. Implemented in 2012 at President Obama’s directive, applicants must establish that they meet certain age, physical presence, education, and criminal history requirements, and if approved, they are granted this temporary relief from deportation and are permitted to apply for and obtain employment authorization. President Obama’s 2014 Executive Action sought to expand the program, but legal challenges and a deadlocked decision by the U.S. Supreme Court last year blocked the expansion. The original program remains in place, and it is not yet known what action, if any, President-Elect Trump will take with respect to this program. There’s already bi-partisan support in the Senate for protection of DACA should the President-Elect rescind the program.

Other Programs Resulting from Executive Action. President-Elect Trump has said he intends to cancel all unconstitutional executive actions. While not immediately clear which programs he may deem unconstitutional, notable and more recent existing programs include employment authorization eligibility for certain H-4 spouses and employment authorization for foreign graduates with qualifying degrees in science, technology, engineering, and mathematics fields. A new rule granting a stay of up to five years in the U.S. to foreign entrepreneurs to operate and grow their start-up entities was just published this week and is scheduled to take effect in July. While each of these programs were prompted by the President’s Executive Action announcement in 2014, they all have been vetted through the normal public notice and comment provisions of the Administrative Procedures Act. Nonetheless, President-Elect Trump could pursue a blanket cancellation of these and other Executive Action-related programs.

Other Potential Actions by President-Elect Trump. The President-Elect has also called for a Muslim ban / extreme vetting and a repeal or renegotiation of NAFTA. With respect to a potential Muslim ban, the Obama administration recently removed regulations related to a post-9/11 requiring registration of young men from certain countries. The program had not been in use for several years and eliminating the regulatory framework now would require a new administration to resurrect a similar program following the usual public notice and comment requirements. In addition, Cabinet appointees have distanced themselves from any sort of ban or restriction based solely on religious affiliation. While a renegotiation of NAFTA would potentially have far reaching implications, it also could impact the “TN” visa category that currently allows Mexican and Canadian professionals to enter and work in the U.S. in three (3) year increments. It also could impact the ease with which Americans travel and work in those countries.

We’ll learn much more in the next several weeks and months, and employers should be prepared for the possibility of significant changes affecting immigration compliance and sponsorship requirements.
Employers sponsoring foreign national employees should consult with immigration counsel to determine how the new rule on employment-based visa programs may affect the company and its foreign workers, and they should remain diligent in their I-9 compliance efforts for all employees.

Please contact Christl Glier, Jenifer Brown, or another member of the firm’s Immigration practice with questions regarding the impact of these changes or related matters.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 
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