United States: Immigration In Flux

Anticipated changes to immigration regulations could have significant impact in the employment context. The Department of Homeland Security (DHS), in its fall 2018 regulatory agenda (Fall Regulatory Agenda), announced plans to implement new rules to make the H-1B and H-4 visa programs consistent with President Trump's Buy American Hire American Executive Order, signed on April 18, 2017, which seeks to create higher employment rates for U.S. workers and ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries. Subsequently, on Dec. 3, 2018, DHS and United States Citizenship and Immigration Services (USCIS) published a proposed regulation expected to prioritize H-1B applications for workers with advanced degrees from American universities. Moreover, on Nov. 19, 2018, the Department of Labor (DOL) began requiring employers to use a new H-1B labor condition application in order to promote greater transparency regarding the employment of foreign temporary workers.

In addition to these regulatory changes, President Trump recently reached an agreement with his Mexican and Canadian counterparts to remain in a North American Trade alliance and replace NAFTA with the newly named United States-Mexico-Canada Agreement (USMCA). It remains subject to ratification by the legislative bodies of all three countries. If ratified, USMCA is not likely to have an impact on labor mobility across the three countries but will require certain protections for workers.

This month's column reviews these recent federal initiatives and how they will affect employers.

H-1B Visas

Several items on DHS's Fall Regulatory Agenda, which lists regulations anticipated for the rest of this year and into 2019, relate to H-1B visas. The H-1B visa program allows U.S. companies to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor's degree or higher in the specific specialty, or its equivalent. When USCIS receives more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions projected as needed to reach the cap.

The Fall Regulatory Agenda set forth DHS's plans to propose a "Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap Subject Aliens," consistent with the direction under the Buy American and Hire American Executive Order to help ensure H-1B visas are awarded to the mostskilled or highest-paid beneficiaries. Indeed, on Dec. 3, 2018, DHS and USCIS published this proposed new H-1B petition pre-registration rule (Proposed Rule) in the Federal Register for public review and comment through Jan. 2, 2019.

The Proposed Rule would make two significant changes to the current H-1B visa program. First, the Proposed Rule would require petitioners to pre-register with USCIS electronically in advance in order to participate in the H-1B lottery. Only those candidates who timely register and are then selected for adjudication in the lottery would proceed to submitting an H-1B petition. In the past, employers planning on filing an H-1B petition would directly send the complete H-1B petition packet to USCIS for processing under the H-1B lottery. One upside for employers is this new procedure would only require them to file petitions on behalf of employees who are successful in the lottery.

The second major change under the Proposed Rule would increase the likelihood that H-1B visas are allocated to individuals who possess a master's or higher degree from a U.S. institution of higher education. The Immigration and Nationality Act (INA) provides that each fiscal year 65,000 H-1B visas are available to skilled foreign workers. However, in 2004, Congress amended the INA to exempt from each fiscal year's H-1B cap up to 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned master's, or higher, degrees. Accordingly, the current H-1B lottery system consists of two rounds. Only individuals with U.S. master's degrees or higher are eligible to participate in the first round, which awards 20,000 visas to successful applicants. The second round then allocates the remaining 65,000 slots from a much larger pool of individuals with at least a bachelor's degree, including those individuals who were unsuccessful in the first round. The Proposed Rule would change the order of the two rounds, by first selecting 65,000 individuals from the total pool of all pre-registered applicants, and then filling the remaining 20,000 exempt slots from a smaller pool of only those applicants with a master's degree or higher. DHS predicts that this change would likely award over 5,000 more H-1B visas for individuals with advanced degrees compared to the current lottery procedure.

Employers filing H-1B visa petitions should be aware that these proposed changes could be finalized and in place for the next April 2019 cap filings. While the demand for H-1B visas has continued to increase beyond the 85,000 cap (approximately 199,000 petitions were filed for 2018), employees with advanced degrees would have a better chance at receiving an H-1B Visa under the Proposed Rule.

The Fall Regulatory Agenda also indicated DHS's plans to move forward with a rule titled "Strengthening the H-1B Nonimmigrant Visa Classification Program" that would revise the definition of "specialty occupation" under the INA to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. A proposed rule has not been published to date

H-4 Visas

H-4 visas are issued to immediate family members of the H-1B visa holders, including the employee's spouse and children under 21 years of age. An Obama-era regulation extended eligibility for employment authorization to certain H-4 dependent spouses of H-1B visa holders, and in 2017 alone USCIS approved over 126,853 applications for work permits for H-4 visa holders. However, DHS's Fall Regulatory Agenda indicated DHS's intent to implement a rule that would terminate the eligibility of certain spouses of H-1B nonimmigrants to apply for work authorization under the H-4 visa program. DHS explained that some U.S. workers would benefit from such a rule by having a better chance at obtaining jobs that some of the population of H-4 workers currently hold.

Although DHS has not yet published this proposed rule, on Nov. 16, 2018, House Representatives Anna G. Eshoo and Zoe Lofgren introduced the H-4 Employment Protection Act which would prohibit the Trump administration from revoking the work authorization of spouses of H-1B visa holders. Lofgren said, "Prohibiting H-1B dependent spouses from working is of no benefit to our country, and if allowed to move forward, many of these families that can contribute so much to our workforce will simply move to countries with a more sensible approach to immigration." It is too early to speculate how this issue will play out for H-4 visa holders.

DOL Forms

Effective Nov. 19, 2018, employers seeking to file H-1B petitions must use the DOL's new Labor Condition Application (Form ETA-9035). With the new Labor Condition Application, employers will now be required to provide more detailed information about their H-1B employment conditions, including all places of employment where it employs H-1B workers (e.g., client worksites), including for short periods of time; an estimate of the number of H-1B workers at each place of intended employment; clear identification of any secondary entities that are using H-1B workers; and documentation of education degrees for H-1B dependent employers claiming an exemption solely on the basis of education.

The Worker Complaint Form (Form WH-4) also was updated in October 2018 with new data fields to better capture descriptions of alleged program violations by employers. The DOL explained these changes are aimed at increasing compliance of the H-1B program, as well as providing greater transparency about temporary foreign employees.

USMCA

On Sept. 30, 2018, the United States, Mexico and Canada reached agreement to remain in a North American trade alliance. The new agreement—USMCA—which is subject to ratification by the legislative bodies of all three countries, may replace the 24-year-old NAFTA. President Trump signed the USMCA on Nov. 30, 2018, and is expected to submit it to Congress for approval early next year.

The USMCA adopts the same immigration provisions and visa categories that existed under NAFTA for the temporary entry of business visitors or professional employees (TN visas), intra-company transfers for managers and executives (L-1 visas), as well as traders and investors (E-1 and E-2 visas). However, the USMCA adds an explicit commitment by all three North American countries to adopt anti-discrimination policies that protect workers on the basis of sex "including with regard to pregnancy, sexual harassment, sexual orientation, [and] gender identity." In addition, the USMCA includes specific employmentrelated provisions impacting the automobile industry. In order to qualify for zero tariffs, an automobile must have 75 percent of parts made in the United States, Canada or Mexico. This is a boost from the current 62.5 percent requirement. Starting in 2020, at least 30 percent of the work done on the automobile must also be completed by workers earning at least $16 an hour. In 2023, that percentage increases to 40 percent for cars.

The USMCA still is subject to approval of Congress, as well as legislative bodies in Mexico and Canada. With a Democratic majority in the House next Congress, it remains unclear whether or not the USMCA will obtain the necessary support.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Country
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions