The impact of Trump’s election on US corporate immigration

Posted by Immigration Law Team|US Immigration
Nov 16
21


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.

H-1B classification

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.

TN status

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.

PERM process

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.

Conclusion

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: sheila.snyder@pwc.com

Monika Szabo, Partner; T: +1 416 687 8580; Email: monika.szabo@pwc.com

Douglas A. Cowgill, Attorney, Senior Associate; T: +1 604 495 8966 ext 3659; Email: douglas.a.cowgill@pwc.com

 


Posted by Immigration Law Team » No Comments »

DHS proposes new rule: Amended regulations for certain employment-based immigrant and non-immigrant visa programs

Posted by Immigration Law Team|US Immigration
Nov 16
21


In brief

The Department of Homeland Security (DHS) has proposed a final rule which will amend its regulations related to certain employment-based immigrant and nonimmigrant visa programs. It includes the retention of EB-1, EB-2, and EB-3 immigrant workers and program improvements affecting high-skilled nonimmigrant workers. The final rule is intended to benefit U.S. employers and foreign workers participating in certain programs, by streamlining the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status. Additionally, the final rule aims to increase job portability and provide stability and flexibility for foreign workers.

Discussion

Notable issues and changes addressed in the final rule include the following:

Retention of priority dates: Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This will allow workers to retain priority dates and effectively transfer those dates to new and subsequently approved Form I-140 petitions

Retention of employment-based immigrant visa petitions: Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business

– 10-day non-immigrant grace periods before / after the assignment in US: There will be two grace periods of up to 10 days, consistent with those already available to individuals in some non-immigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications.The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, as well as a second grace period of up to 10 days after the end of an authorized validity period in the U.S.

– 60-day non-immigrant grace periods where employment ceases prior to end of petition validity: There will be a new grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored non-immigrant classifications or employment in the same classification with a new employer

– Automatic extension of EAD pursuant to timely renewal filing: Certain EADs will be extended for up to 180 days from the date of expiration, as long as: (1) a renewal application is filed based on the same employment authorization category as the previously issued EAD; (2) the renewal application is timely filed prior to the expiration of the EAD; and (3) the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment

– Eligibility for employment authorization in compelling circumstances: Certain beneficiaries with approved I-140 petitions in the U.S. in E-3, H-1B, H-1B1, L-1, or O-1 non-immigrant status may apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization.

Impact

DHS states that these changes codify and improve existing policies concerning various employment-based immigrant and non-immigrant visa classifications. One of the main goals is to simplify the process for employers to hire and retain non-immigrant workers who have approved Form I-140 petitions. Also, DHS aims to give such workers additional career options as they wait for immigrant visas to become available. DHS considers these improvements increasingly important given the lengthy waits and consistently growing demand for immigrant visas.

The proposed rule is currently in the 60-day notice and comment period following publication in the Federal Registrar on November 18, 2016. The proposed changes will most likely take several months to clear the federal regulatory process. PwC Law LLP will provide additional updates as they become available.

For more information on the proposed rule change issued by DHS, please contact PwC Law LLP.


Posted by Immigration Law Team » No Comments »

Trump declared US President: How will this affect immigration?

Posted by Immigration Law Team|US Immigration
Nov 16
9


In brief

After emerging victorious in several key battleground states, Republican candidate Donald Trump has declared victory as the winner of the 2016 US Presidential race.  Republicans also retained control of the Senate and the House of Representatives.  An overview of Trump’s platform and the immigration implications of his election are outlined below.

Background – Trump’s immigration platform

Donald Trump’s campaign spoke extensively on the issue of immigration, primarily in relation to concerns around illegal immigration, and included propositions for the following:

– Building a physical wall to divide the United States and Mexico

– Deporting criminal aliens, in joint operation with local, state, and federal law enforcement, and tripling the number of ICE agents

– Suspending the issuance of visas in areas deemed to not have adequate screening mechanisms in place

– Ending President Obama’s executive actions, Deferred Action for Parents of Americans (DAPA) and Deferred Action for Childhood Arrivals (DACA), resulting in the deportation of the beneficiaries of these programs

By comparison to Trump’s platform on illegal immigration, he spoke sparingly in relation to his corporate immigration platform.  Throughout various stages of the campaign, however, Trump’s platform included propositions for the following:

– Increasing wage requirements for H-1B visa holders in an effort to encourage US companies to hire more Americans for entry-level jobs

– Increasing usage of the E-Verify program, resulting in required participation for all US companies in order to verify employment authorization status prior to an individual commencing employment within the US

– Renegotiating and potentially considering the abolition of NAFTA, under which certain classifications of professionals are eligible to transfer between the US, Canada and Mexico for employment purposes

– Suspending US visa issuance from Muslim regions, as determined necessary by Trump

Impact – What does this mean for immigration?

 

US immigration implications

While difficult to predict whether the above will occur in the proposed form or an altered form, it seems likely that Trump will attempt to take robust action at the outset of his presidency in relation to illegal immigration, with potential changes to corporate immigration to follow.   Action instituted by Trump, however, could be met with delays in Congress.

With the GOP retaining control of the House of Representatives (236 to 191) and the Senate (51 to 47), Trump may benefit from a united Republican Congress.  Trump’s relationship with many congressional republicans, however, has been described as uneasy and is not expected to lend itself to automatic agreeance on key immigration topics.  Further, many of Trump’s proposed policies will require approval from Congress for the significant costs involved, likely resulting in periods of lengthy delays before any changes to immigration are felt.  Based on the anticipated debate expected to occur on many key immigration fields, including the costs associated with Trump’s platforms on illegal immigration and corporate immigration, change will likely occur slowly. Thus, unless Congress also supports Trump’s position, changes to corporate immigration will likely occur slowly following periods of significant debate.

Canadian immigration implications

As the votes were cast and ballots counted, the website for Immigration, Refugees and Citizenship Canada experienced such high volumes on election night that it ultimately crashed, leading to widespread reports that many US citizens unhappy with the results of the election are seriously contemplating moving to Canada on a long-term basis. While the Canadian government has mandated immigration to be more facilitative as a means to foster economic growth and diversity across the country, the process of obtaining permanent residence in Canada remains a relatively lengthy one with eligibility to apply on economic grounds being based largely on the particular candidate’s age, education, work experience, language proficiency, and whether or not they hold a valid job offer. As such, long-term or permanent relocation of American citizens to Canada will not be immediate, and is unlikely to occur en masse.

From a corporate immigration perspective, the changes proposed by Trump are likely to impact businesses not only in the US, but also those in Canada and particularly those engaging in cross-border business.  As noted above, Trump’s platform has been highly protectionist, and he has spoken at length pledging to remove the United States from the North American Free Trade Agreement (NAFTA), if the document is not amended to his liking. It remains to be seen how Trump and his advisors will attempt to amend NAFTA, however any amendments will first need to be agreed to by all member nations, which will not be a quick or seamless process. If the United States eventually removes itself from NAFTA, however, cross-border travel and corporate global mobility programs will be deeply impacted, as such a decision will affect millions of citizens from Canada, the United States and Mexico, who currently utilize the NAFTA work permit category to move seamlessly across borders to work  in NAFTA member countries.

Recommendations

In light of Trump’s win, we recommend that employers assess their global mobility program and long-term foreign worker needs both in the US and Canada, and budget for potential increases to wage requirements and processing times accordingly.  Companies who employ or are intending to employ foreign nationals under the NAFTA may also wish to consider applying now for their NAFTA-based work permits for the maximum work permit duration to avoid disruption to business services, and ensuring their employees continue to take advantage of working in NAFTA member countries while NAFTA remains in effect.

For more information on the President-elect’s immigration platform, please read our Insight.

For questions relating to immigrating to Canada or the US, please contact PwC Law LLP.

Please note that PwC Law does not endorse any specific political opinions or views.


Posted by Immigration Law Team » No Comments »

Proposed Changes to E-2 Treaty Investor Category

Posted by Douglas Cowgill|US Immigration
Apr 15
22


U.S. Congressmen David Jolly is working on legislation that could significantly change the lives of E-2 Treaty Investors. Currently, this category is available to citizens of treaty countries who make a substantial investment in a U.S. business. It is a non-immigrant visa category, meaning that E-2 visa holders cannot become permanent residents unless they are eligible under an immigrant visa category.

At this time, the employment based immigrant visa categories are not directly in line with the E-2 visa. There are many situations where an E-2 visa holder would not be eligible for an employment based green card. For example, an E-2 investor would not be eligible under the fifth preference Employment category (EB-5), unless they had invested at least $500,000 in a Targeted Employment Area and created 10 full-time jobs. Further, an E-2 investor would not be eligible for the first preference Employment Category (EB-1C), unless they served as the Manager or Executive of an affiliated foreign business for at least one year.

The proposed legislation would rectify this problem by allowing E-2 visa holders to apply for permanent residence through a new category. The new category would require applicants to prove that they were physically present in the U.S. for at least 10 years in E-2 status. Additionally, the applicant must demonstrate that their U.S. business created at least two full-time jobs. If these criteria were met, the individual would be eligible for permanent residence.

In addition, the proposed legislation could have significant impacts for dependent children of the primary investor. Currently, children may only possess E-2 dependent status until they are 21 years old, and they cannot apply for work authorization. The proposed legislation would allow children to remain as E-2 dependents up to the age of 26, and would allow them to apply for work authorization once they are 18 years old.

It is important to note that at this time, the changes discussed above are merely proposed changes. To officially become part of U.S. law, the legislation must be approved by the U.S. House of Representatives, the U.S. Senate, and signed into law by the President. For further information about the E-2 visa category and the potential changes discussed above, please contact PricewaterhouseCoopers Immigration Law LLP.


Posted by Douglas Cowgill » No Comments »

L-1 Worksheet for Denied Cases

Posted by Immigration Law Team|US Immigration
Feb 15
26


U.S. Customs and Border Protection (CBP) confirmed the deployment of an L-1 Checklist at U.S.-Canada Ports of Entry (POE) for cases that are not approved. L-1 checklists should now be used by CBP if any L-1 petition is deemed deficient when presented by a Canadian citizen seeking petition adjudication and admission under NAFTA. CBP has also released a second L-1 checklist covering basic points of L-1 eligibility, which is intended to serve as both a guide for applicants and an internal officer training tool.

If a Canadian citizen is refused admission following L-1 adjudication at a U.S.-Canada POE, the applicant should now receive an L-1 deficiency checklist. This document should indicate the specific reason(s) why the petition was not approved. The purpose of the checklist is to better inform applicants of the deficiencies in their petitions so that they can return to the same POE to successfully re-apply with the appropriate documents.

At the same time, the checklist is intended to assist the re-adjudicating CBP officer in simplifying their review of the petition. During the re-adjudication, the officer should focus on only those areas which were previously found deficient. For now, the checklist will be in use only at U.S.-Canada POE where NAFTA adjudications are common. For further information about L-1 applications at a U.S. POE, please contact PricewaterhouseCoopers Immigration Law LLP.


Posted by Immigration Law Team » No Comments »

Looking for a Student Visa? Do your Research

Posted by Immigration Law Team|US Immigration
Feb 15
5


Looking for a Student Visa? Do your Research

The U.S. offers a variety of visa options designed for foreign students to obtain an education at some of the country’s most prestigious and well-known universities. Unfortunately, some students learned the hard way that Tri-Valley University was not one of those institutions. In fact, it was a sham school designed to issue phony documents to students so that they could obtain student visas, while providing virtually no educational value.

U.S. Immigration and Customs Enforcement (“ICE”) has started to crack down on schools like Tri-Valley University in recent years, with reports that 5 – 10 schools have been closed amongst allegations of immigration fraud. The difficulty for students abroad is that some of these phony institutions actually appear legitimate online. Also, since the school issues the student a visa, it is easy for young, foreign students to accept that the school must be legitimate.

But students looking to come to the U.S. should be extremely cautious when deciding which school to attend. Every effort should be made to verify information on the school’s website. Ideally, the student could visit the school in the U.S. before receiving their visa to ensure that it is a properly functioning university.

Understandably, a student may not have this option, and may not have any reason to doubt the university’s legitimacy until they actually enter the U.S. But once it becomes clear that a school is not offering any courses, the foreigner must decide what to do next. One option would be transferring to a legitimate university; another would be reporting the school to ICE. At no point should the student engage in work which they are not authorized to perform, as this could lead to major problems down the road.

Just ask some of the Indian students who attended Tri-Valley University. Even though they were led to believe they could work full-time jobs, they were not only returned to India once their visas were revoked, but were also required to wear ankle monitors by U.S. authorities. While this may seem a bit extreme for students who were scammed by a U.S. institution, it teaches a valuable lesson: You can never be “too safe” when it comes to your immigration status in the U.S.

For further information regarding student visas or any other immigration matters, please contact PricewaterhouseCoopers Immigration Law LLP.


Posted by Immigration Law Team » No Comments »