USCIS Actions

While no one knows what President Elect Trump will do until he ultimately acts, in a recently posted video on his Facebook page he has asked his transition team for executive actions that he can take “to restore our jobs and bring back our jobs” It is believed he is referring to the H-1B, TN and L visas. In all of these applications there is no requirement of a showing of unavailability of qualified and able U.S. worker under present immigration law and regulation. To add this requirement, it would take Congress a period of time in which to change these laws.

However, through executive action the USCIS could interpret existing regulation much more strictly so as to disqualify potential nonimmigrant visa applicants as has been the case at various U.S. consulates in India over the past year. As an example, the L-1B specialized knowledge classification has been interpreted strictly and loosely by the USCIS or Immigration and Naturalization Service since the enactment of the legislation. Thus, a more restrictive definition of specialized knowledge could limit the number of foreign nationals who would qualify for this category. Thus, it is prudent that any of the companies, who are contemplating transfers of foreign nationals to the United States during the next year, would be wise to begin such applications at the present time before the Trump administration comes to power.

We recommend that this information be shared with your executives, project managers, supervisors and other personnel responsible for staffing decision-making. We are available to confer and advise as to appropriate courses of action that could save the company much grief and legal expenses in order to gain the approval of a key person in coming to America.

Similarly, we would recommend that all of our employers review their public access file procedures to ensure that the information and documentation is current and up to date. We anticipate that the Department of Labor and the USCIS will become much more rigorous in ensuring that the employers have been properly compliant with all of their duties and responsibilities under the immigration laws. Please contact our office if you have any questions concerning the maintenance of your public access records.

Finally, if the H-1 employee completes his assignment prior to the end of the USCIS approval period, then it is necessary that the USCIS be advised of the termination or completion of the assignment so that no further legal obligations or responsibilities will accrue to the employer under the H petition. When we are notified by the employer of this circumstance, we assist by notifying the USCIS and maintaining the record of notification should there ever be a question of the employer’s compliance with their legal duties and responsibilities. Thus, it will be prudent to begin planning for the coming year as it will no longer be business as usual under the Trump administration in the field of immigration law.

Another caveat: If President Elect Donald Trump is serious about deporting millions of illegal aliens, his administration will have to not only significantly pursue and deport the aliens with criminal records but also the many aliens who have previously been found deportable and for various and sundry reasons have remained in the United States. The Immigration and Customs Enforcement agency has identified approximately 1.9 million criminal aliens plus approximately 940,000 who have been found deportable but have absconded. To identify many of this group it is likely that ICE will have to begin implementation of more active and rigorous employer sanctions, investigations and activities. Thus, we are recommending to our employers that they ensure that their I-9’s and other documentation required be audited and reviewed to ensure accuracy and completeness.