the year in review: immigration compliance for employers in 2017

The Year in Review: Immigration Compliance for Employers in 2017Maria Kallmeyer, Eric Ledbetter, and Elizabeth McAdams

November 9, 2017

Presenters

Maria Kallmeyer312.715.5009 maria.kallmeyer@quarles.com

Eric Ledbetter312.715.5018 eric.ledbetter@quarles.com

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Elizabeth McAdamsSenior Manager, Global ImmigrationAon Corporation

Immigration Authorities (Rule of Law)

• Federal statutes (Immigration & Nationality Act) – Title 8, U.S. Code

• Requires an Act of Congress to change

• Written regulations – Title 8, U.S. Code of Federal Regulations

• Requires formal agency rulemaking procedure with public notice and comment

• Executive Orders/Proclamations and Agency memos/cables/guidance

• Usually broad-based procedural changes - can happen overnight

• Not supposed to change substantive rights

• Change in processing practices –• Variations in individual officers

• Changes at processing center level

• Training issues

• Variations from consulate to consulate

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Highly Skilled Worker Regulation

• New regulation became effective on January 17, 2017 after many years of work

• H-1B Cap Exemption Based on affiliation rule changed: • Pros: The new rule is more broad: (1) nonprofit; (2) affiliated with a institution of higher education;

(3) a fundamental activity of the organization is to contribute to the same educational or research mission of the University

• Cons: 2011 deference memo is no longer

• Automatic EAD extensions in some categories, but the 90 day rule is no longer

• 60-day grace period for certain nonimmigrant categories – discretionary

• 10 days in most nonimmigrant categories

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Presidential Executive Orders at Beginning of Year

• An outline of the Trump Administration immigration agenda

• Travel Ban Executive Orders• Where do we stand?

• What can we expect?

• Interior Enforcements

• Where do we stand?

• What can we expect?

• Buy American, Hire American • Where do we stand?

• What can we expect?

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Massive Increase in RFEs

• More scrutiny of all existing rules

• Higher incidence Requests For Evidence (RFEs)

• Issues that were not historically questioned

• H-1B RFE's• Questioning "Specialty Occupation"

• Questioning if Level 1 - "entry level"

• L-1 RFE's• Questioning L-1A managerial duties in U.S. and abroad

• Questioning L-1B specialized knowledge duties in U.S. and abroad

• Very tough on small/young companies

• I-485 RFE's – Questioning maintenance of status, med exams, portability

• I-140's – Now Multinational Manager RFE's becoming more common

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Changes at DOS

• "Extreme Vetting"

• What does it mean?

• State Dept cable to all U.S. consulates

• DUI's

• Visa revocations since 2016 – panel physician exam required for new visa

• Now USCIS also denying extensions?

• New DOS verification program

• Changes at NVC

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Changes at USCIS

• Nonimmigrant:

• New Memorandum regarding no deference on H and L extensions

• Premium Processing Suspension and Reinstatement

• Green Card Applications:• No Advance Parole if travel abroad in H-1B or L-1 status

• Employment- Based Adjustment of Status Interviews

• Audit of FDNS site visit program

• Processing times

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Changes at DOL

• PERM sponsorship verifications

• Can now submit audit responses online

• DOL has not disputed USCIS Level 1 reviews

• DOL has caught up it's "inventory" of cases

• PWDs now taking ~78 days

• PERMs now taking ~4 months

• Low audit rate

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DACA

• Trump rescission of DACA

• Waiting for Congressional action

• Letter from Senators to DHS

• Practical effect for employers

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Practical Changes - Employer Perspective

• Monitor Job Code Selection and Level on Labor Condition Applications (H-1Bs)

• Self-audit of LCA Public Access Files (H-1Bs)

• Case by Case Selection for Premium Processing (most H's, L's, I-140's)

• Advise managers, employees, and HR Line Partners of extended processing times

• Emphasize to contact us prior to making international travel arrangements

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Look Ahead to 2018

• Increase in investigations/site visits - ICE, DOJ, FDNS, W&H

• Continued additional scrutiny of applications

• New technology• I-94 app (similar to Starbucks ordering)

• Facial recognition software

• Congressional reforms?

• DACA??

• TPS – ended in May for certain countries – what will happen to the rest?

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© 2017 Quarles & Brady LLP -This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.

Thank You! Questions?

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Maria Kallmeyer312.715.5009 maria.kallmeyer@quarles.com

Eric Ledbetter312.715.5018 eric.ledbetter@quarles.com

Elizabeth McAdamsSenior Manager, Global ImmigrationAon Corporation