The Law: Immigration Round-Up

By John Hill and Rebecca Sigmund

In recent weeks, the Trump Administration has engaged in multiple changes to immigration policy that may impact any South Carolina employer with foreign workers – particularly, foreign-owned companies that make their home in South Carolina.  The following is a brief summary of some of the more relevant changes.  Future blog posts will elaborate on some of the more important changes in further detail.

Increased Visa Scrutiny at Consulates.  As a result of the President’s “Buy American and Hire American” Executive Order, the U.S. State Department recently instructed consulate officers to apply a more rigorous standard when determining whether an applicant meets the requirements of the visa category.  Employers should be aware that their employees may encounter increased scrutiny at the visa interview (especially for E-1, H-1B, L-1, O-1, and P visas) and prepare for potential challenges for all visa application types, including TN (Mexico) and B visa applications.  F-1 visas are also affected by the new instructions giving officers more discretionary power to deny student visa applications if the officer is not satisfied with the applicant’s evidence that the applicant intends to depart the U.S. at the conclusion of his/her study or Optional Practical Training.

Expansion of In-Person Interviews for Certain Green Card Cases.  Effective October 2017, U.S. Citizenship and Immigration Services (CIS) began to phase-in interviews for Adjustment of Status applications for employment-based green cards.  This action reverses the long-standing trend to waive such interviews except for unusual circumstances.  Employers should anticipate growing delays to complete a green card case.

Increase in L-1A and L-1B Delays.  CIS continues to request more information for a significant number of L-1A and L-1B petitions (apparently impacting more than 60 percent of the petitions filed).  Such requests impact the timeline for transferring managers and specialized knowledge employees to operations in the United States and require substantial documentation and detail from the petitioning company.

Increase in EB-1 Multinational Manager Delays.  Many managers and executives working for multinational companies are eligible for a “short cut” green card category known as EB-1.  However, CIS is imposing increased scrutiny to these cases resulting in a more drawn-out and slower process.  For example, the delays have been so significant that CIS reports that some offices are currently processing EB-1 petitions filed in August 2016.

Wage Levels for H-1B Applications.  Reversing long-standing acceptance of certain salary standards for H-1B workers, CIS has issued new policy guidance which raises questions as to whether an entry-level wage implies that the position is not a “professional” position for H-1B purposes.  This change particularly impacts certain H-1B applications filed for professionals in fields such as engineering, computer science, and analytics.

Advance Parole Travel Document Denials.  Also reversing long-standing policy, CIS recently began denying advance parole applications for abandonment in instances where the applicant traveled abroad during the pendency of the application – even in cases where the applicant had a separate valid advance parole document or valid H, K, L, or V visa to return to the U.S.  This change imposes unnecessary inconvenience to applicants who need to travel.

Change of Presumption of Misrepresentation Rule.  Under long-standing policy, CIS presumed that a foreign individual entered the United States with misrepresentation if the individual engaged in activity within 30 days of entry that was inconsistent with his visa status.  If the inconsistent activity occurred within 31 to 60 days of entry, CIS could form a reasonable belief of misrepresentation but the individual could present evidence to show otherwise.  The Administration has changed this policy to a presumption of misrepresentation if the inconsistent behavior occurs within 90 days of entry.  The policy may impact, among others, individuals who enter the United States and engage in activity inconsistent with their visa status – such as attending school, working, or getting married – if done within the proscribed 90 days.

Reversal of DACA (Deferred Action for Childhood Arrivals).  Reversing policy that had been in place since 2012, the Trump Administration announced the cancellation of the DACA program.  With humanitarian intent, the program was designed to protect foreign individuals who are in the United States illegally only because they accompanied their parents as children – and basically have nowhere to go. The program granted employment authorization during the protected status.  Unless Congress passes legislation to save the program (or some form thereof), cancellation of the program could impact up to an estimated 800,000 workers.

U.S. Suspends Nonimmigrant Visa Issuance in Turkey.  The United States has suspended all nonimmigrant visa services in Turkey.  Turkish citizens with valid visas may continue to travel to the United States.  Turkish citizens seeking a visa must apply at a U.S. Consulate located in another country.

On-going Trump Administration shifts in immigration policy continue to impact South Carolina companies, particularly foreign-owned companies, that employ foreign workers.  As companies weather such policy changes, it will be prudent to plan ahead and prepare for potential repercussions from the changes.

Ogletree Deakins has one of the largest business immigration practice groups in the Carolinas with eight immigration attorneys in South Carolina alone.  Contact John Hill at [email protected] or Rebecca Sigmund at [email protected].