Global mobility managers have received a flood of emails over the last week from employees concerned about their US immigration status. Some of the questions include the following:
1. I’m currently on an H-1B. Does Trump’s election mean that I can’t get an H-1B extension?
2. I’m on a TN. Trump wants to withdraw from NAFTA. Am I going to be forced out of the US sometime soon?
3. I’m from a Middle Eastern country and Trump said he will suspend the issuance of visas for certain nationalities. If I leave the US, am I going to be able to get a visa to return to the US?
4. I’m Muslim and am in the green card process. Will my adjustment of status application be denied?
5. I am interested in getting a US green card. Is Trump’s election going to make that more difficult for me?
Global mobility managers also have their own questions:
1. Is it going to be harder for our company to obtain H-1B status?
2. What will the PERM process look like? Will there still be per country limits imposed on those born in India and China?
3. Obtaining L-1B approvals for intracompany transferees has already become increasingly difficult, thereby impeding important knowledge sharing between affiliated entities. Will there be more stringent adjudications of nonimmigrant petitions at USCIS?
4. Will we still be able to get L-1 visas under our company’s L-1 Blanket at visa posts abroad?
5. Will our employees be stuck outside the US for administrative processing if they are from certain countries?
Throughout his campaign, Trump has espoused “hire American” rhetoric, as did Clinton. Both candidates were vocal that foreign nationals should not take away US jobs; however, both, at different times, had also discussed the importance of finding ways of keeping certain desirable foreign students in the US. In terms of corporate immigration, Trump was most vocal about the H-1B classification.
This discussion must take into account the following: for there to be changes in immigration law, they would need to be passed by Congress. The President can only override Congress by issuing an Executive Order, available only in limited circumstances. Where the President is particularly influential, however, is in his ability to nominate/appoint the Director of USCIS and the Secretary of State, both which need to be confirmed by the Senate (which has a Republican majority). The Director of USCIS plays a key role in providing guidance to USCIS Adjudicators as to how they apply the law to a particular case in the form of policy memoranda. The Secretary of State can also influence how Consular Officers apply the law in adjudicating certain visa applications. As such, who Trump puts into those positions will have an impact on the manner in which US immigration laws and regulations are applied to each individual case.
Trump’s position on the H-1B classification has fluctuated from requesting that it be eliminated altogether to strongly stating the need for the US to keep talented people, especially graduates of top US academic institutions. Since he has been a proponent of keeping certain university graduates in the US, and since such graduates typically use the H-1B category as their temporary status while they pursue the path to permanent residency, it is unlikely that the H-1B category would be eliminated. Trump has stated that he is a proponent of H-1B reform, which includes requiring US employers to pay a higher prevailing wage to foreign workers than those currently being paid, and to ensure that there are no qualified US workers prior to extending an offer to a foreign worker for the same role.
If legislative changes are made, it is possible that they could be implemented quickly, possibly upon H-1B extension. This would mean that employers would need to meet the new requirements in order for the H-1B to be filed. It is possible that this added burden would dissuade some employers from filing H-1B extensions for their employees.
Bottom line: The H-1B category will likely not be eliminated but there may be some reform which would make it more difficult for companies to obtain H-1B status for their employees.
If the US withdraws from NAFTA, then the TN classification would not exist. It must be noted that the US can only withdraw from NAFTA by giving 6 months written notice. It is possible that those in TN status will be given the opportunity to complete their stay in the US, but will not be eligible for extensions. Alternatively, they may be given a certain length of time to depart the US. Unfortunately, with the numerical limitations on the H-1B cap, those in TN status might face challenges in obtaining H-1B status and might not qualify for another status. If the TN classification is eliminated, perhaps an alternative would be made available to citizens of Canada, such as those afforded to Australian nationals under the E-3 classification.
Nonimmigrant adjudications by USCIS and Department of State
Over the last 8 years under the Obama administration, it has become increasingly difficult for companies to obtain approvals of L-1B specialized knowledge intracompany transferee applications, either before USCIS or before the Department of State (DOS). Denials in this category have often alluded to the fact that US workers can perform the job duties with a reasonable amount of on-the-job training, without giving weight to an employer’s attestations that such is not the case. These limitations on approving L-1B applications have undervalued the importance to multinational companies of having key employees enter the US to perform critical specialized roles which, in turn, enhance the companies’ success thereby increasing jobs for US workers. If Trump truly understands “big business,” he will create an atmosphere where USCIS and DOS adjudicators and officers will see the larger positive impact of the movement of key employees of multinational corporations and possibly facilitate the flow of such workers to the US. However, if the “hire American” rhetoric prevails, then we will see a tightening on nonimmigrant adjudications before USCIS and DOS.
Visa processing at US Consular Posts
When applicants apply for visas at US Consular Posts, their cases may be placed in administrative processing for a number of reasons, including additional security checks. Trump has been vocal about Consular Posts not being sufficiently diligent in screening people from certain (primarily Middle Eastern) countries and wanted to suspend the issuance of visas for people of certain nationalities. It is very possible that more cases will be held up in administrative processing which could lead to several months of delays for certain visa applicants. This may discourage foreign nationals studying and working in the US under legitimate nonimmigrant categories from departing the US, out of fear that there may be major delays in obtaining a visa, required for re-entry into the US. It is still unclear what exactly will happen in terms of adjudications at Consular Posts, but over the coming months, nationals of certain countries may wish to monitor the situation before departing the US.
In interviews during the election, Trump has been clear that there are certain people that the US must continue to retain, specifically international students attending some of the US’ top academic institutions. He has also discussed having tests of the US labor market in the H-1B context. Since the PERM process already requires a stringent test of the US market and only allows an employer to proceed with sponsoring a foreign national if there are no US workers who are able, willing, qualified, or available for the role, there is a good chance that there will not be any major changes to the PERM process. One of the hottest topics for those engaged in the PERM process surrounds the per country limits imposed by Congress on the number of immigrant visas available to foreign nationals. Congress determines the number of immigrant visas that are available and has also determined that those born in any one country cannot comprise more than 7% of the total number of immigrant numbers issued in any given fiscal year. It is unclear whether there will be any changes to the per country limits under Trump, but likely the PERM green card process will largely remain the same.
Adjustment of Status adjudications at USCIS
There will likely be little change to USCIS’ adjudication of green card applications. However, it is possible that those from Middle Eastern countries may experience administrative delays as their cases undergo additional security checks. Although most employment-related green cards are issued without requiring an interview at the local USCIS Field Office, it is possible that those from Middle Eastern countries will have their cases sent to the local Office for further adjudication.
There is still much uncertainty as to the state of US corporate immigration after Trump’s inauguration. There are many studies that demonstrate that immigrants not only fuel economic growth in the US, but also play a positive impact on the income of US workers. In formulating his plans for immigration while in the White House, it is hoped that Trump will utilize his knowledge of “big business” to create strategies that positively respond to the immigration needs of US companies.
We will continue to monitor the situation from both an employee and global mobility manager perspective and will provide updates as they become available. If you have any questions, please do not hesitate to contact any of the following:
Sheila Snyder, Partner; T: +1 604 806 7185; Email: firstname.lastname@example.org
Monika Szabo, Partner; T: +1 416 687 8580; Email: email@example.com
Douglas A. Cowgill, Attorney, Senior Associate; T: +1 604 495 8966 ext 3659; Email: firstname.lastname@example.org