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Extreme vetting: the effect on US employers and foreign staff

28 Jun

28 June 2017

On March 6, 2017, President Donald Trump issued a memorandum calling on the heads of the U.S. Departments of State and Homeland Security to implement protocols to “enhance the screening and vetting of applications for visas and all other immigration benefits”, with a focus on “ensuring the proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits.”

The term “extreme vetting” originated earlier, when then-candidate Trump attempted to moderate his campaign pledge of a total ban on Muslims entering the United States. As a result, many have associated this memo with visa applications at U.S. embassies and consulates abroad, but the memo is far more expansive. U.S. Citizenship & Immigration Services benefits adjudicators are also under a clear mandate to “evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits.” If current rules are insufficient, the relevant departments “shall issue new rules, regulations, or guidance… to enforce laws relating to such grounds of inadmissibility.”

Tougher CIS adjudications

This broad mandate covers petitions and applications filed with CIS seeking to change or extend status in the United States, and CIS adjudicators are already taking action to carry out their mandate. On March 31, 2017, CIS rescinded the 2,000 “Guidance memo on H-1B computer related positions,” which had previously served as acknowledgement that non-entry level programmer positions typically qualify as a “specialty occupation” for purposes of H-1B visa approval. As a result of the rescission of the 2,000 guidance, H-1B extension petitions filed on behalf of programmers or those with mixed programmer/analyst duties are open to fresh scrutiny on what was previously a settled issue – whether the position itself qualifies as a “specialty occupation.” Petitioners should ensure extension petitions are as well-documented as original petitions and take into account any shifts in CIS policy.

On April 3, 2017, CIS also temporarily suspended “premium processing” (15-day adjudication) for H-1B petitions, with the stated goal of catching up on backlogged cases pending in the regular processing queue. While suspension of premium processing enables CIS to divert resources to other H-1B petitions, the coincidence with the memo mandating rigorous evaluation of all grounds for denial ensures adjudicators plenty of time to search out reasons to deny extension petitions without being confined by a 15-day deadline. The U.S. may also pursue other H-1B program changes in an effort to identify and eliminate program abuses, including more “site visits” to determine whether H-1B workers are where they are supposed to be, doing the work they are supposed to do, and getting paid what they are supposed to be paid. Employers should have an action plan with a designated list of responders in order to properly handle these site visits.

Delays in Visa Issuance Abroad

On May 4, 2017, the U.S. Department of State published notice that consular officers will collect additional information from certain visa applicants “in order to more rigorously evaluate applicants for terrorism or other national security-related visa ineligibilities.” Among the additional information to be collected in the new Form DS-5535 are the names, addresses, and dates of birth of all siblings, children, and current and former spouses, or civil or domestic partners. At a minimum, the additional data points provide leads that may require additional time to investigate and can be expected to add delays in visa issuance.

Applicants required to complete the DS-5535 must also provide their 15-year travel, employment, and address history; and their social media platforms and identifiers; and all phone numbers and email addresses used over the last five years. The volume and level of detail requested increases the likelihood of inadvertent omission or factual error in the completion of the Form DS-5535, as applicant recollections fail over time and many applicants simply may not maintain records for 15 years. Applicants should ensure that all information provided is accurate – not merely a casual “best guess” – in order to avoid a potential finding of misrepresentation during the visa application process. A finding of fraud or misrepresentation could result in a lengthy or even permanent bar to future admission to the United States.

With new social media details now under the microscope, it seems possible, even likely, that an applicant’s social media “friends” could become a reason for visa denial, even if there is no real friendship involved. How many social media users really know all of their social media connections? While it may be desirable to simply forgo a social media presence, employers should be careful about instructing employees with respect to the use of social media. Instructing a visa applicant to discontinue social media use before visa application may not be appropriate and abrupt discontinuation of a social media presence may raise more suspicion than it averts. Applicants should simply be aware that their social media presence could become the subject of additional scrutiny.

Make a Plan 

Because of the overall level of scrutiny in the adjudication of all immigration benefits at this time, employers and employees should anticipate delays at various stages in the visa petition or visa application process and should prepare contingency plans in the event that an applicant is long delayed in being able to travel internationally or return to the United States. Such plans should address who should be notified when there is a delay, what resources might need to be reallocated, how to apply the company’s unpaid leave policy, and managing communications with coworkers and clients impacted by a team member’s prolonged absence. Addressing policy concerns in advance can help minimize the disruptive force of “extreme vetting.”

As employers and employees come to terms with the current immigration landscape, and how “extreme vetting” can impact business operations, it is important to maintain a close working relationship with qualified immigration counsel who can help meet business objectives while also ensuring overall legal compliance.

Delisa Bressler has eighteen years of experience in immigration law and focuses her practice on U.S. employment-based and family-based immigration as a partner at law firm Foster Global Immigration Solutions