Potential Changes in Immigration Law Affecting Business and Employment Visas

Few people around the world could fail to have heard about the controversy concerning the latest Executive Orders emanating from the White House regarding entry to the United States by citizens of seven Muslim majority nations and refugees recently. The controversy continues as the situation is by no means settled. More details of the current situation follow, but what should not be missed amongst the more newsworthy immigration proposals is the fact that the incoming Trump administration is drafting a new Executive Order that will affect business immigration. In addition, there are a number of bills that are being introduced in both levels of Congress that are designed to change the way visa applications for employees and green cards are made.

The latest on the temporary travel ban

Note that the situation regarding the controversial temporary ban on travel to the U.S. by citizens of seven majority Muslim nations (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) is likely to change almost by the day. The ban was suspended by federal Judge, Judge Robart, with an appeal by the White House dismissed by the U.S. Court of Appeals pending more convincing evidence that the ban was justified. It is possible that the case might eventually be decided by the U.S. Supreme Court.

The temporary ban would have prevented entry by citizens of the above nations for 90 days unless they already were in possession of a green card. Initially, there was confusion whether even green card holders with one of the 7 passports were going to be allowed entry. There was also confusion whether dual passport holders (e.g. those with both U.K. and Somalian passports) would be allowed entry.

The ban was also extended to include all refugees for the next 120 days and indefinitely for Syrian refugees.

The Executive Order also ensures that all visa applicants will now have to attend an interview even if the visa they are applying for is a renewal of one they had before. The interview had been waived up to now.

Note that it is the ban on travel that is currently disputed.

Possible new Executive Order regarding business immigration

The information given below should not be considered final as the next Executive Order on immigration is only at the draft stage. When finalized it may affect the current round of H1-B petitions and the H-1B lottery under the 2017 cap as well as plans for the near future regarding business immigration.

  • All business immigration regulations to be reviewed to ensure they comply with immigration law. The review is to take no more than 90 days.
  • A proposal to terminate the Deferred Action for Childhood Arrivals (DACA) policy as it stands at the moment. The policy had been introduced by the previous Obama administration to provide temporary work authorization for children brought to the U.S. without proper documentation.
  • Increase requirements for H1-B and L-1 visa applicants, to protect U.S. workers.
  • Improve the way the H1-B lottery process operates.
  • Proposal for a new Immigration Commission to review and make immigration policies. This to be done within a year.
  • Proposal for the expansion of the current worksite visit program to encompass all employment based visa categories. This to be done within 2 years.
  • Proposal to begin L-1 worksite audits and or visits within 180 days. The L1-A visits have already begun, so the changes will affect L1-B worksites next.
  • Changes to the regulations affecting F-1/J-1 work options.
  • Changes to what are regarded as acceptable activities for those employees on B-1 visas.
  • Proposed options for reforming the agricultural worker’s visa (H-2A) to be delivered to the President within 90 days.
  • New regulations for the J-1 Summer Work program and the E-2 Visa.
  • Proposed changes which will encourage employers to use the E-verify system together with the I-9 visa application process to be delivered to the President within 90 days.
  • Reform the way green cards are made available as well as the Visa Bulletin within 30 days.
  • Proposals for new regulations to change the way the I-485 applications are filed. These proposals are designed to reduce inefficiencies in the way green cards are allocated. This is also to be done within 30 days.
  • Report to the president within 9 months about any damage to U.S. workers perceived from the current foreign visa employment program or from any foreign citizens who are on the B-1, H-1B or L-1 programs.

Changes to work visas proposed by Congress

The bills described below have either already been introduced or are to be introduced soon in either the Senate or the House of Representatives.

The H-1B and L-1 Reform Act of 2017

This is a bill introduced into the senate by Senators Richard Durbin and Charles Grassley. It proposes the following changes:

  • The current H-1B lottery to be replaced with a new system to be created by the CIS that will give priority to H1-B petitions with higher salaries as well as those employers who are non H1-B dependent.
  • Audits and investigations of H1-B employers by the DOL to be increased.
  • No more H1-B visas to be allowed to employers who already have more than half of their workers on H or l category visas.
  • Make changes to the L1-B program to make it similar to the H-1B requirement for a prevailing wage.
  • Increase restrictions on L1-B specialized knowledge standards.
  • Cap the Numbers of l-1 visas issued annually.

The Protect and Grow America Jobs Act

This bill was submitted by Representative Darrel Issa in the House of Representatives. The bill makes the following proposals:

  • Increase the exemption for the H1-B dependent from $60,000 to $100,000.
  • Get rid of the exemption from H1-B dependency of the Master’s degree.

The bill is designed to make sure that any employers who currently employ a significant percentage (>15%) of their employees on H1-b visas must make sure that there are no suitable American applicants if the salary advertised is less than $100,000.

The High-Skilled Integrity and Fairness Act of 2017

This bill was introduced into the House of Representatives by Representative Zoe Lofgren. These are the changes proposed:

  • Get rid of the Level 1, entry level prevailing wage requirements, thereby increasing the H1-B prevailing wage requirements.
  • Change the green card allocation process so that it is first-come first-served only.
  • Increase the H1-B exemption to $130,000 and get rid of the master’s degree exemption. This part of the bill is very similar to that proposed by Rep. Issa.
  • Reserve 20% of the new H1-B visas for any new companies that intend employing less than 50 workers.
  • Let experience on the job be used by employees as part of their PERM Labor Certification Applications.
  • Get rid of the H1-B lottery with a new system. This will mean that new H1-B visas will be granted to high paid employees only.
  • Provide benefits to any foreign national who has attended a U.S. university who is applying for a H1-B visa.
  • Get rid of the requirement to file an amended H1-B if the workplace is changed.

Fairness for High Skilled Immigrants Act 2017

This bill was introduced by Representative Jason Chaffetz in the House of Representatives. The bill basically covers the same proposal as that of Zoe Lofgren as it proposes that applicants for the green card should be considered on a first-come, first-served basis only. Currently, nationals of certain countries (India, China, the Philippines and Mexico) have to wait much longer (up to 15 years) than nationals of other countries.

 

EXPERTS IN IMMIGRATION LAW