Merely weeks into his administration, Donald Trump has already set the stage to shake up the country’s immigration landscape. His executive order banning the entry of nationals from seven designated countries has created a frenzy in the immigration community. Businesses are on the lookout for an expected directive of a wide-ranging review of employment-based immigration programs, rules and guidance. In addition, Trump’s promise to “build a wall” along the southern border and to “turn off the job magnet” that attracts undocumented immigrants is likely to result in protectionist policies that not only have humanitarian effects but also will significantly impact U.S. employers who rely on foreign professionals as part of their workforce.
With the H-1B cap season right around the corner, employers should be prepared for tighter enforcement of existing rules, and brace for potential changes that could affect their current foreign national population and their ability to attract and retain foreign talent in the U.S.
Possible Elimination of Certain Visa Categories
One of the most prominent campaign promises to “Make America Great Again” included the reexamination of our current free trade agreements. Trump has repeatedly labeled the North American Free Trade Agreement (NAFTA) between the U.S., Mexico and Canada as “the worst trade-deal ever.” NAFTA created the TN category for certain Mexican and Canadian professionals, and allows for Canadian intracompany transferees to apply for an L-1 visa at the Canadian border. Trump can choose to renegotiate or withdraw from the treaty with a mere six months notice, and renegotiation might prove to be more difficult than withdrawal. He also promised to review and potentially renegotiate other free-trade agreements, which could lead to the modification or elimination of the H-1B1 category (for Chilean and Singaporean professionals) and the E-3 category (for Australian professionals).
Furthermore, if Trump dismantles the existing Deferred Action for Childhood Arrivals program, as promised, approximately 750,000 individuals would lose their work authorization. If these categories are eliminated, employers will lose critical, valuable talent and could face fines for knowingly continuing to employ unauthorized workers if no alternate work authorization is secured.
The H-1B Visa and the FY2018 Cap
Even though it is too early to predict the ultimate changes to the business immigration framework, employers should start preparing contingency plans to protect highly skilled workers in the most vulnerable categories. The H-1B category is highly coveted, as there are only 85,000 available (including 20,000 for U.S. advanced-degree holders). If the government receives more applications than visas available in the first week of April, a lottery is held. Last year, they received 236,000 applications, and could receive more this year as a response to pent up demand and planning for potential changes to free-trade visas.
In addition, the H-1B program could be modified under the new administration to include higher prevailing wage requirements, higher filing fees, and a labor market test to ensure that jobs are offered to U.S. workers first. As the changes are uncertain, employers should conduct a census of their foreign national population to determine their long-term business needs, which may include assessing alterative temporary visa categories and green-card sponsorship of high-performing individuals.
Protectionist policies will most certainly mean a sharp increase in work-site visits and inspections. Currently, all employers of H-1B and L-1 visas holders are subject to Department of Homeland Security visits to verify that foreign nationals are working pursuant to the terms presented in visa petitions. Employers should be mindful of all potentially material changes to a foreign national’s employment (such as a change in work location or change of job duties) and file any necessary amendments with the government prior to those changes. H-1B Public Access Files should also be examined to ensure accuracy in the event of a Department of Labor audit.
Trump has also vowed to triple the number of Immigration and Customs Enforcement agents, which would translate to additional manpower available for I-9 audits. Employers must ensure the timely and proper completion of Form I-9 for new hires and reverifications, and they should conduct self-audits of existing records to ensure good-faith regulatory compliance. Self-audits should be conducted in a nondiscriminatory manner to avoid potential liability under antidiscrimination provisions.
Expansion of E-Verify
Currently, more than 600,000 employers across the nation use E-Verify. E-Verify is a free electronic program administered by the Department of Homeland Security and the Social Security Administration, through which employers can verify the employment eligibility of new hires. Although E-Verify is voluntary for most employers (but mandatory for employers with federal contracts), Trump has called for its mandatory use by all employers to make it more difficult for undocumented workers to find work. The failed Border Security, Economic Opportunity, and Immigration Modernization Act, or S.744, in 2013 included a provision to require E-Verify for all employers over a five-year period. With the assistance of a Republican-dominated Congress, the vision of electronically verifying work authorization of every new hire could become a reality.
While the future of immigration is uncertain at this time, proper planning this cap season, taking a census of your foreign national population and carefully reviewing immigration-related files can provide peace of mind to employers and employees alike, and can mitigate potential future disruption to crucial business operations.
Vanessa Salazar, a Fragomen associate, assisted with this article.