“The never-ending growth of red tape in America has come to a sudden, screeching and beautiful halt,” Donald Trump declared in a December 2017 White House ceremony, hailing a “war” against imposing burdensome rules on employers. But is that the case with immigration, which has seen a flurry of new policies directed at companies and immigrants?
I asked two experienced attorneys to explain recent actions by the Trump administration and U.S. Citizenship and Immigration Services (USCIS) – Vic Goel, managing partner, Goel & Anderson, and Dagmar Butte, partner, Parker, Butte & Lane.
Stuart Anderson: The Trump administration has said that it has lowered the regulatory burden on business. Is there evidence of less regulation on employers when it comes to immigration?
Vic Goel: Regrettably, no. In fact, the Trump administration appears to have made a conscious decision to make it markedly more difficult for U.S. employers to employ a foreign national. Most troubling, is that the administration is imposing new requirements and changing the rules of the game without providing employers or the public prior notice or the opportunity to comment on these changes. Instead, it is effectuating draconian changes by issuing new policy memos instead of revising or withdrawing existing regulations or issuing new regulations that would require public input.
Dagmar Butte: One way in which the Administration is increasing the burden on employers is that they are issuing memos manifestly contrary to the existing statute and regulations – a good example is the Level 1 Computer Programmer memo that read out the availability of a Level 1 wage despite the fact that the immigration statutes actually mandate 4 wage levels. This memo initially only applied to computer programmers but then mushroomed into all sorts of occupations, including physicians.
The initial public gloss was that Level 1 was only an indicator that the job was not a “professional occupation” and not intended to be determinative but in practice, adjudicators used it – and continue to use it – to simply deny because Level 1 was selected. This will go on until someone sues on this issue in District Court – an expensive and time-consuming process that is not consonant with the employer’s need to fill the position today and not in a year or two. The Agency knows this and is proceeding with these and similar initiatives until the federal courts step in.
Anderson: What are some of the most notable examples of increased regulation?
Goel: President Trump’s Buy American and Hire American executive order, issued in April 2017, directed the Attorney General and secretaries of State, Labor, and Homeland Security to propose new rules and issue new guidance, ostensibly to protect the interests of U.S. workers. That directive has sprouted all sorts of policy changes that have increased the time, cost and documentary burden on employers and workers. For example, USCIS surreptitiously imposed new requirements into the H-1B program that caused massive increases in the number of cases denied or subjected to a Request for Evidence. For employers, this not only means increased time, but more importantly, it results in a loss of predictability, which is harmful to any business. Employers are often in the dark about whether a case that would have been approved a year ago will be approved today. That’s no way to run either a business or a government.
Butte: Another new policy has been to enforce – in the most restrictive manner possible – a sentence in the instructions to the travel permit application which says that if one travels during the pendency of the application the application is deemed abandoned. Historically, this had not been applied to persons who traveled using an unexpired travel document or using an H or L visa, which allows for travel while a permanent residence application is pending, and the language currently used to justify denials does not necessarily mandate denial in those scenarios. The end result is multiple additional filings making more work for agency staff and accomplishing no particular purpose that we can see other than delay and inconvenience to the foreign national, since the application can always be re-filed and the travel that led to the denial was valid.
Anderson: Recently, U.S. Citizenship and Immigration Services changed the rules on placing H-1B visa holders at the site of customers, referred to as third-party placements. Who do you think this policy will affect the most and how?
Goel: Companies in the information technology (IT) services, management consulting, healthcare, and staffing fields are going to feel this change most acutely as it requires increased documentation to gain approval of an H-1B petition if the visa holder will work at a customer site. In such cases, USCIS has indicated it will require employers to provide detailed documents proving their clients have confirmed an H-1B worker’s job duties, the degree requirement for that job, and how long the job will last.
This will obviously have a chilling effect on the relationship between companies and their clients, since few clients will be comfortable weighing in on what an individual employee of a contractor will be working on and whether his or her job requires a specific degree. While it’s clear that USCIS intended to take aim at IT outsourcing firms with this change, its implications will be felt in other industries, and by investors and consumers in the long run.
Butte: Information technology and other consulting and staffing companies have never had an easy road to getting an H-1B. They have always needed to submit additional documentation and generally face more requests for additional evidence than what I will call “Old Economy” employers, but at least there was predictability. An employer knew that if they jumped through the extra hoops erected by USCIS, even those not actually required by the statute or the regulations, the chances were good that a case that was honestly and completely presented would be approved. That is no longer true.
Two identical cases – the only difference being the name and educational/career history of the beneficiary – will get different results. Since there is little or no accountability, since the Administrative Appeals Office is not actually an independent appellate body but simply another level of adjudication, adjudicators have free rein to do whatever their gut tells them to do. This is not to say that there are not very competent, conscientious, and hard-working adjudicators at USCIS – the vast majority I think are good people who care about doing their jobs well. The problem is that the Agency culture is suspicious of these types of employers due to past abuses by a few bad apples. It seems like now it is easier to just tar all with the same brush rather than to differentiate among them and decide each case on its own merits.
Anderson: What might be the impact on U.S. companies who receive information technology or other services? Is it fair to say U.S. companies pay for these services because they believe it will make them more efficient or better able to compete?
Goel: Again, the impact is an increase in cost and time, and a loss of business predictability. As an attorney, my stock-in-trade is advising companies on what to expect, but where immigration is concerned, that seems to be relic of the past. As information technology and other services companies face increased regulation and struggle to find and employ the most qualified workers, those consequences will be felt by the clients who contract for their services. Ironically, President Trump’s and the Republican Party’s platform was based on minimizing government regulation, but today on immigration they are telling companies how to run their businesses. It’s difficult to imagine a scenario where this won’t have long-term unintended consequences.
Butte: U.S. companies – especially large multinationals – have adopted the same business model that the U.S. government has been using for years: Shed non-core competencies and outsource them to contractors. USCIS does that with its mail room function, data entry, IT, and others. The State Department uses out-sourced contractors for almost all of the positions at the National Visa Center. The reason the model is so pervasive is because when it works, it increases efficiency, allows for better resource management and increases profits. Those factors mean the business model will not go away, especially when we continue to mint fewer and fewer native-born STEM graduates in our colleges and universities.
Anderson: Could this USCIS policy result in more work being performed outside of the United States?
Goel: I think you just hit the nail on the head. There’s already little in information technology maintenance and support that can’t be done offshore and businesses are under constant shareholder pressure to operate efficiently, so if the administration makes it difficult and expensive to do business in the U.S., it is creating an incentive to do it elsewhere.
There’s a common misconception that foreign IT services companies, particularly the ones based in India, are merely labor arbitrageurs that have no specialized expertise of their own. That seriously underestimates the capabilities that these companies have, and it ignores that they have moved up the value chain to the point that they all have sophisticated R&D operations and products enabling artificial intelligence and robotic process automation. On the employee-side of the coin, other countries have adopted policies and programs aimed at attracting demoralized H-1B visa holders and immigrant entrepreneurs, so we stand to lose highly skilled workers and job creators through policies that tell intelligent people to stay away.
Butte: The smaller companies who provide niche services to the larger ones and who rely on the H-1B professionals will also be affected but the difference is that they will not be in as good a position to off-shore these jobs. Worst will be the situation for health care and related staffing companies because they care for our aging population and provide much needed therapy services – as the Boomer generation continues to age there will be a greater and greater need for these services and we can’t just off-shore Grandma’s care to a facility in India but – who knows maybe that day, too, will come.
Anderson: Is it possible that hospitals and others that utilize the skills of doctors and other medical personnel at third party locations could also find themselves burdened or affected by the new policy?
Goel: Certainly, and that’s an example of a presumable unintended consequence of this new policy. It’s already common for physicians, nurses, physical therapists, and other healthcare professionals to be employed by one entity while they deliver their services at various facilities, so new USCIS requirements on third party worksites are likely to impact H-1B medical professionals, their employers, and ultimately, their patients.
Anderson: How could this policy affect individuals seeking an extension of their H-1B status?
Goel: It has already had a devastating effect. USCIS recently rescinded a policy that afforded deference to its own prior approvals and it is systematically denying H-1B extensions even when there has been no change in the terms of employment. This has resulted in the denial of H-1B status extensions even for employees who have had multiple prior approvals from USCIS. This uproots the lives of workers and their family members and plunges them into uncertainty as they wait for an appeal or for their employer to determine if it can re-file their case. Of course, this also has significant consequences for the U.S. employer who loses the continuity of employing a skilled employee in a specialized position since the employee typically loses work authorization when the extension is denied.
Butte: One disturbing trend we see if these cases in that while USCIS denies the H-1B extension (when nothing has changed about the job and its requirements) on the grounds that the job is not in a professional occupation that requires at least a Bachelor’s Degree, these individuals often already have approved immigrant petitions based on the opposite of that premise. They have been waiting – if they are Indian, Chinese or Philippine – for years in a backlog believing they were secure that at least the professional nature of their employment was not in question, even if it might take years or even decades to get that green card.
Anderson: Are there other USCIS policies that might affect people who have been working for years in H-1B status, perhaps waiting for a green card, and who could find themselves needing to leave the country because their H-1B status is not extended?
Butte: National Public Radio has recently broadcast stories on the “H-4 Dreamers” – these are the children of people legally in the U.S. and waiting in the employment who are about to turn 21. Some of these young people – especially from India – have been in the U.S. since they were 5 or 6 years old. When they turn 21 they will have to leave the U.S. and return to ta country they do not know unless they can secure an independent visa. If they are lucky enough to secure such an independent visa they too will then end up on that hamster wheel that their parents have been on – endless rounds of applications and backlogs until they finally get to the front of what will by then be an even longer queue assuming it is even still there. The stories are heartbreaking especially because these people have always followed the rules and contribute to our society.
Anderson: Can you name any policies the Trump administration has established or proposed to make it easier for high-skilled foreign nationals to work in or immigrate to the United States?