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2018 Year in Review – the Top 5 Changes to Business Immigration this Year

2018 saw many changes in the immigration landscape and the implementation of President Donald Trump’s “Buy American, Hire American” initiative, which has and will continue to reshape the way the United States Citizenship and Immigration Services (USCIS) enforces federal immigration law.

Wooden blocks depict the change from 2018 to 2019.

While news headlines were dominated by anti-immigrant policy and rhetoric, talk of building a wall, debates about the future of Dreamers and migrant caravans, some impactful changes occurred outside of the news cycle that influenced the way businesses can hire and retain highly skilled foreign workers. As the year winds down and we look to another busy year in immigration, here are FordMurray’s top 5 business immigration news stories in 2018.

H-1B Visa Program Sees Increased Scrutiny

The H-1B Visa, one of the most prominent nonimmigrant work visas used to sponsor foreign workers, came under sharp focus of President Trump’s “Buy American, Hire American” initiative. With an eye toward curbing the use of H-1B visas to undercut employment and wages of U.S. workers, President Trump issued an executive order to federal agencies to review and propose changes to the H-1B program.

Subsequently, under the direction of the Trump Administration, USCIS has increased scrutiny of H-1B petitions, resulting in a 45% increase in Request for Evidence (RFEs) in 2018. While most can agree reform is needed in the H-1B program, overzealous reinterpretation of existing law wreaked havoc on employers and employees. Our team of attorneys are preparing for another busy H-1B season in 2019, and recommend businesses interested in sponsoring an employee through the H-1B process begin preparing now.

Premium Processing Targeted by Trump Administration

As part of the disruption of the H-1B visa program, the Trump Administration targeted the popular premium processing option for H-1B lottery petitions, H-1B extensions and H-1B change of employer petitions.

As processing times increase due to increases in RFEs from USCIS, premium processing became an essential tool for employers to ensure their employee would be ready to work in a timely manner, and for H-1B employees to stay in status during extensions or change of employer petitions. As we look to 2019, we are focused on helping employers and employees proactively engage in hiring and retention practices for their valued team members.

Decline in Foreign Student Enrollment Seen as Effect of President Trump’s Immigration Policies

There are many reasons foreign students have traditionally chosen to attend American colleges and universities, and the cultural and economic impact of these students cannot be ignored on campuses nationwide. But Trump Administration immigration policies toward foreign graduates and the charged political climate have made many foreign students look elsewhere as they plan their post-secondary education.

A student studies outdoors at a college campus.

National media sources have cited alarming statistics around this trend – 40 percent of higher education institutions cite a drop in international student applications, two-year MBA programs have seen a 30 percent decrease, and the number of F-1 student visas has gone down nearly 20 percent. The most important thing a college can do in 2019 is to continue rigorous compliance with SEVIS standards, as international students look for colleges and universities who can be trusted not just with their education, but their future eligibility to work and live in the United States.

Rule by Memoranda: Sweeping Reform Comes One Memo at a Time

2018 was marked by a flurry of orders and memoranda that fundamentally changed the way immigration law was enforced. Changes from President Trump’s executive orders and USCIS notices included:

  • Extreme vetting practices that have delayed or disrupted highly skilled workers from entering the United States, including increased administrative processing delays and extended visa delays at US Embassies around the globe
  • Increases in Request for Evidence on H-1B and similar work visas
  • Disruption of Obama-Era International Entrepreneur Rule
  • Policy changes that increase fees and stipulations in visa application processes
  • Termination of Temporary Protected Status for nationals of El Salvador, Haiti, Nicaragua and Sudan

In this constantly changing immigration landscape, it is important to have responsive immigration counsel. FordMurray attorneys are constantly revising our training and compliance programs to ensure our clients have the most up to date information and are never caught off guard by policy changes – regardless of how small they might seem.

USCIS Looks to Reshape H-1B Lottery

The Department of Homeland Security issued recommendations on November 30th, 2018, to overhaul the H-1B lottery in an effort to give highly skilled foreign workers an increased opportunity in the 2019 H-1B Lottery.

Today, the H-1B lottery is run in two phases. During the first phase, applicants with a master’s degree or higher vie for 20,000 visas reserved for those with advanced degrees. In the second phase, advanced degree holders not selected in the first round go into a larger pool of college degree holders, where 65,000 H-1B visas are allocated. The proposed change would reverse the order, and proponents say it would increase the chances for advanced degree holders.

Additionally, the proposal calls for a modernization of the lottery system that would move registration for the lottery online. It would also allow USCIS to temporarily suspend the registration process at any time during the fiscal year as the new H-1B registration system is implemented.

While the proposal has supporters and detractors, any change to the H-1B program will dramatically impact employers and employees. We work closely with our clients throughout the year to make sure Human Resource Leaders and In-House Counsel are kept abreast of changes to policies that can impact their recruitment and retention of foreign employees. If you have any questions about immigration changes and how they impact your business or employment, contact us today.