Recent media reports indicate that the United States is quickly losing its place as the top destination for global talent, resulting in a growing 'brain drain' of skilled talent to countries such as China. Moreover, recent policy changes have made it increasingly difficult for foreign-born students to remain in the United States after graduation. Such short-sighted measures will only hinder US competitiveness in the long run.
The Department of Labour recently announced the implementation of the new Labour Condition Application (LCA) form. The prior LCA form is no longer acceptable. The implementation of the new form will affect LCA processing, since additional information will now be needed to complete the new form. Among other changes, the new LCA form now requires the full legal name and any 'doing business as name' for end clients where the H-1B worker will be placed to perform job duties.
The US Citizenship and Immigration Services issued an alert on 28 September 2018 reminding F-1 students with an H-1B petition that remained pending on 1 October 2018 that they risk accruing unlawful presence if they continue to work on or after 1 October (unless otherwise authorised to continue employment) because their cap-gap work authorisation was valid only until 30 September.
The Department of Labour's Office of Inspector General (OIG) recently found that the Employment and Training Administration's lack of control over the H-2B applications process has jeopardised businesses that depend on H-2B workers. According to the OIG, H-2B application processing delays "could prevent employers from obtaining foreign workers by their date of need" or "obtain[ing] US workers to fill those positions".
The Knowledgeable Innovators and Worthy Investors (KIWI) Act was signed into law on 1 August 2018. The KIWI Act will allow eligible NZ nationals to enter the United States as non-immigrant traders and investors provided that New Zealand grants reciprocal treatment to US nationals.
The Department of Homeland Security recently issued a final rule eliminating the non-immigrant visa exemption for certain Caribbean residents seeking to enter the United States as H-2A agricultural workers and the spouses or children who accompany or follow these workers. As a result of the related interim final rule, these non-immigrants must have both a valid passport and visa.
The US Citizenship and Immigration Services recently announced that it received 190,098 H-1B petitions during the filing period for fiscal year (FY) 2019, including petitions filed for the advanced degree exemption. This number is down from the record-breaking filings for FY 2017, during which USCIS received 236,000 petitions, and down from last year. It can be inferred that the changes implemented under the Trump administration have affected the number of H-1B filings.
The United States Citizenship and Immigration Services (USCIS) recently released a policy memorandum detailing the document requirements for H-1B petitions involving third-party worksites. USCIS has acknowledged that third-party arrangements may be a legitimate and frequently used business model and outlined the documents required to use this model. If employers do not include the mentioned corroborating evidence, USCIS may deny the petition.
In April 2017 President Trump issued the Buy American, Hire American Executive Order. The United States Citizenship and Immigration Services has carried out and is considering a number of policy and regulatory changes to fulfil the president's executive order, including conducting a thorough review of employment-based visa programmes. Further, there are several bills being considered in the House and Senate pertaining to immigration.
The US Department of Homeland Security (DHS) allocated $22.8 billion between 2014 and 2016 to enforce and administer immigration laws, one of its strategic missions. In 2014 a DHS Unity of Effort initiative created the Joint Task Forces to coordinate the department's resources. The DHS Office of Inspector General recently audited DHS to evaluate whether it has been achieving its mission in the most efficient way possible.
In April 2017 President Trump signed the "Buy American, Hire American" executive order. Subsequently, US Citizenship and Immigration Services (USCIS) started working on the necessary rulemaking, policy memoranda and operational changes to implement the executive order. As part of these initiatives, USCIS recently updated agency policy guidance on the burden of proof for extension petitions.
Following the president's "Buy American, Hire American" executive order, companies and immigration practitioners have witnessed increased scrutiny over immigration compliance. The Immigration and Customs Enforcement (ICE) acting director recently confirmed plans to increase enforcement in order to prevent fraud and abuse. ICE has indicated, among other things, that it will prosecute employers for knowingly hiring or retaining workers who lack valid US employment authorisation.
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.