President Trump recently released an executive order in which the secretary of state, the attorney general, the secretary of labour and the secretary of homeland security were prompted to suggest reforms and propose new laws to ensure H-1B visas are awarded to the most skilled or highest paid beneficiaries. In line with these developments, the US Citizenship and Immigration Services and the US Department of Labour have published reports detailing the existing H-1B trends.
It is common knowledge that the Trump administration is attempting to tighten immigration. One component that the administration has talked about is converting the employment-based immigration system utilising the H-1B visa to be more merit based rather than lottery based. Immigration practitioners have already seen a trend in this direction with, among other things, more requests for evidence for lower-level professional categories.
The US Supreme Court is reviewing US Court of Appeals decisions which found President Trump's Executive Order 13780 (Protecting the Nation from Foreign Terrorist Entry into the US) to be unconstitutional. The government can now ban people from Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a 90-day period, unless they can show that they have a bona fide relationship with a person or entity in the United States
In a recent case, the Board of Alien Labour Certification (BALCA) agreed that the requirement to provide a signed copy of a Programme Electronic Review Management form was reasonable and that failure to provide a complete copy would usually constitute a substantial failure. However, since the failure to submit an original, completed form in this case appeared to be an electronic error, BALCA decided that the omission was not material and ordered approval for the employer.
Two bills to authorise and reauthorise key immigration component agencies at the US Department of Homeland Security were recently sent to the House of Representatives as a whole for consideration, with the goal of ensuring that US immigration laws are enforced and maintaining the integrity of the immigration system. Authorisation bills direct how federal funds should or should not be used and are typically made for single fiscal years, but are often renewed in subsequent law.
President Donald Trump recently signed an executive order entitled "Buy American, Hire American". In the 'Hire American' part of the order, Trump announced that he was directing the Department of Labour, the Department of Justice, the Department of Homeland Security and the Department of State to review the existing laws governing the H-1B programme and suggest changes to prioritise the most skilled and highest paid positions.
The US Department of Labour recently issued two denials of Programme Electronic Review Management certification to Apple, the first US company with a market value of more than $700 billion. Denial in the first case was based on a clear typographical error, while the second was based on a subtle interpretation of the foreign worker's educational qualifications.
In a nation of immigrants, the government struggles to determine which persons should be permitted to remain and which persons should be returned to their home country. Employers that seek labour certification to employ foreign workers must prove that they have not found suitable US workers who are qualified, willing, able and available for employment.
US Citizenship and Immigration Services (USCIS) recently announced that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for the fiscal year 2018. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the 'master's cap'. US businesses use the H-1B programme to employ foreign workers in occupations that require at least a bachelor's degree or equivalent.
US Citizenship and Immigration Services recently released a new policy memorandum, which supersedes and rescinds the memo issued to Nebraska Service Centre employees in 2000. Under the earlier memo, many practitioners claimed that most computer programmer positions qualified as 'specialty occupations'. However, the new memo concludes that a Level 1 designation for a position covered under the computer programmer position classification does not qualify as such.
A little-known requirement in the Programme Electronic Review Management rule states that employers must offer to train job applicants if they can acquire the education, training, experience and skills necessary to perform the required duties in a reasonable period. While deference is given to the employer, whose judgement is the best arbiter of such matters, government policy regarding the required duties themselves is ambiguous.
Given the new era of enforcement under the Trump administration, foreign nationals must have appropriate documentation in their possession to prove their lawful immigration status in the United States. Failure to do so may result in the foreign national being arrested and detained until the necessary documentation is provided.
As the H-1B cap season for fiscal year 2018 is fast approaching, companies should take steps now to assess their H-1B needs and begin to collect the necessary documentation for H-1B cap petition filings in order to maximise their chances of success. It is unclear whether any changes will be made to the H-1B programme in the months before the H-1B cap season, following the recent US presidential election results.
US Citizenship and Immigration Services (USCIS) recently proposed a new rule which would allow the Department of Homeland Security to use its existing discretionary statutory parole authority for entrepreneurs of start-up entities. USCIS recently sent the rule to the Office of Management and Budget for review; however, it is unlikely that the final rule will be effective before the Trump administration takes over.
The Department of Labour recently held a meeting which provided an opportunity for stakeholders to pose questions regarding the Programme Electronic Review Management process. A wide range of topics were discussed, including processing times, tools for prevailing wage requests, combinations of duties, prioritising adjudications, unquantified special requirements and the American Competitive and Workforce Improvement Act.
The Department of Labour has long held the position that employers should not recruit for jobs requiring special skills or licences if US workers are available who could be easily trained. To defend the special skill requirement successfully, employers generally argue that job applicants did not list these skills on their résumés and that it would not be feasible for them to acquire the skills through on-the-job training.
While the incoming Trump administration has not been entirely clear about how aggressively it will pursue changes to employment-based immigration and its primary stated agenda is enforcement action against undocumented immigrants, recent indications from the Centre for Immigration Studies and pronouncements from the new attorney general have foregrounded the potential for immigration reform in the near future.
When Programme Electronic Review Management applications are denied, employers can file requests for reconsideration. If a request for reconsideration is denied, employers can still file an appeal to the Board of Alien Labour Certification Appeals (BALCA) within 30 days. In addition to the timely filing requirement, employers must carefully state the grounds for the appeal. A BALCA directive advises that appeals may be dismissed if the grounds do not contain sufficient detail.
The Department of Homeland Security recently proposed a new rule to retain and attract highly skilled workers and entrepreneurs to the United States: the International Entrepreneur Rule. The proposed rule is separate from the E-2 and EB-5 US investor visa programmes, and would provide another avenue for entrepreneurs who wish to live and work in the United States to pursue.
In a recent case an employer used a private employment agency to place an ad for professional recruitment. The agency put its own name in the ad and not the name of the employer; as a result, the Department of Labour denied the Programme Electronic Review Management application.