In 2019, the major policy and enforcement shifts announced in 2017 and 2018 continued to play across the board with stricter enforcement of immigration regulations. We do not expect seismic changes in the coming year, but there are a few points to look out for in 2020.
(1) H-1B: Probable change in definition of “special profession” in court
USCIS has announced that it will announce an official change to the definition of a “specialty job”. While we have already noticed an adverse shift in the H-1B decision-making process, this would be an official legislative change. We believe that any attempt to interpret the H-1B statute as closely as possible will face a lengthy legal battle.
(2) H-1B lottery registration system
The government plans to use a new registration system that was originally announced in 2018 for the upcoming FY2021 H-1B cap season. According to USCIS, that is Erstregistrierungsfenster will be open from March 1st to March 20th. However, the system has yet to be fully tested and USCIS has not yet issued registration instructions, so implementation may be delayed.
(3) H-4 EADs are still a target
The government is likely to issue a regulation to remove H-4 EADs. This change has been rumored for several years. However, we have learned that the draft regulation is going through the administrative process and is expected to be published this year. We believe that the government will no longer accept applications for new EADs and renewals in the event of its entry into force, but will allow the current EADs to remain valid until their expiry date.
(4) L-1 regulation possible
The government may also make changes to the L-1 regulations that limit the level of expertise and change the definition of what it means to be a manager. While clarity could be helpful, we believe that the goal would be to limit the usefulness of this visa category, and like any change to the H-1B, changes to L-1 would likely go to court.
(5) New hurdles in issuing visas
We believe that the tendencies of US consulates to issue visas will continue to be reflected in tight controls through the increase in administrative processing, “extreme scrutiny” and the refusal of visas. While getting the USCIS approval of a visa application has been the biggest hurdle in recent years, the visa application process at US consulates could also be difficult.
(6) USCIS and Visa fee increase
(7) Stalemate on Capitol Hill
While immigration is making political headlines, there seems to be little appetite for immigration laws in the House of Representatives or the Senate, especially during an election year. Some proposals to change elements of the immigration system in 2019 have stalled. Expect politicians to talk about immigration but not comply with any major laws.
(8) DACA at the Supreme Court
In connection oral remarks in November last yearThe Supreme Court is expected to rule on the future of deferred action for childhood arrivals (DACA) sometime in the spring. The court could terminate DACA, confirm DACA, or return it to the lower courts for further review. Because DACA beneficiaries have a work permit, changing the program could have a significant impact on these individuals as well as companies in a variety of industries.
(9) Enforce working conditions in all sectors of the economy and immigration
Continuing recent trends, expect all immigration-related authorities to step up their enforcement activities on the ground. This includes not only the well-publicized ICE raids against employers of low-skilled workers, but also I-9 audits, mismatched letters from social security, and a new focus on employers from foreign graduates.
(10) Companies considering options in other countries
As the immigration process in the United States becomes more complex, restrictive, and insecure, companies in other countries may be looking for ways to increase their workforce. Countries like Canada, the UK, Ireland, Australia and Singapore continue to offer good alternatives.
We will provide updates all year round as soon as these problems arise.
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