With every new presidential administration that comes into office, a new culture develops. This affects, among other things, how federal laws are implemented. The result is that, even before Congress makes any actual changes to U.S. immigration laws (which it has been wrangling over for years), employers hiring immigrants are seeing changes in how they, and the non-citizen employees they hire, are being treated by the federal immigration bureaucracy.
By way of example, after the terrorist attacks of September 11, 2001, the immigration laws remained the same, but a “culture of no” ensued. Across the spectrum of immigration petitions and applications, the message to government officials was, “When in doubt, deny the petition or application.” If an officer incorrectly denied petitions or applications, there would be few consequences to the officer. Conversely, if an officer incorrectly granted an immigration benefit, such as a visa, to someone who later committed a crime in this country, heads would roll.
Under the Obama administration, the president attempted to make policy adjustments to ensure that “yes” answers could be issued when it was in everyone's best interests. For example, this administration created policies allowing the spouses of H-4 visa holders to get work permits, and allowing non-citizen spouses of U.S. military service people, who had entered the U.S. without inspection, to remain lawfully while awaiting their green cards.
Now let's take a closer look at the Trump administration's policy approach
Where U.S. immigration officers formerly simply followed the law, the administration now has empowered them to second guess longstanding laws and policies.
For example, while the H-1B visa statute and regulations clearly outline that a specific degree requirement is sufficient for a job to qualify for the visa, officers of U.S. Citizenship and Immigration Services (USCIS) now are issuing what have become known as “level one wage” requests for evidence. The requests state that if the job is merely entry-level and requires only a bachelor’s degree, it cannot qualify for an H-1B visa. The result is that employers now must spend substantial time and incur additional legal fees to obtain approval of what formerly were routine petitions.
In a similar vein, USCIS recently announced that it no longer would give deference to prior petition approvals when reviewing petitions to extend an employee’s work authorization and immigration status. Officers now may disregard their own agency's prior approvals and review the renewal petition with enhanced scrutiny. This essentially brings into play the inappropriate “level one wage” requests for renewal petitions. But it is not limited to that issue alone. Officers are free to raise any issues they want.
Following USCIS approval of an employment-based visa petition, employers can now expect more site visits by government contractors. Their usual procedure is to show up unannounced and ask questions about petitions the employer has filed.
Remember the $500 fee you paid when you submitted the petition to sponsor an employee for an H-1B or L-1 visa? The government uses those funds to conduct post-approval audits of the petition, so as to verify that the employee is working according to the terms the employer outlined in the petition. While this formerly was a rare event, employers can expect this to become a more frequent occurrence under the Trump administration.
Here again, while alcohol-related charges or convictions such as driving under the influence formerly had little impact upon persons remaining in the United States and seeking to extend their stay and work authorization, such a charge or conviction now can result in a denial of the extension request.
This in turn requires the person to go through visa processing abroad. If the U.S. State Department has not already revoked the person’s visa (another event of increasing frequency), that person will need to apply for a new visa at the U.S. consulate or embassy. If the charge or conviction is less than a year old, the consular official may deny the visa until the person can show “rehabilitation.” Therefore, anyone who is unfortunate enough to have an alcohol-related charge or conviction since last entering the U.S. needs to be aware of possible problems when extending status here or applying for a visa abroad.
The above examples are indicators of current trends. Expect them to continue and to expand to other areas.
The practical implications for employers and employees is that you should expect greater scrutiny when seeking initial or renewal benefits, as well as delayed processing times and complications for international travel. While it previously was enough to present a well-prepared and well-documented petition, the government now will second guess everything and require employers to provide ever more detail and documentation to obtain approval of their petitions. And although immigration processing times always have been difficult to predict, the new norm appears to be to a longer waiting period for USCIS to issue petition approvals.