The current U.S. immigration landscape focuses on enforcement as opposed to process. This shift started happening in January 2017 after the inauguration of President Trump, and the beginning of new policies of protectionism and national security. The restrictive tendencies have also impacted business immigration matters, which tends to focus on legitimate means to enable U.S. companies to hire well-educated talent for their U.S. workforce. Multinational employers often transfer skilled workers or managers and executives to the U.S. and rely on the assurance that these employees will be granted visas in a timely manner. The current administration’s restrictive reading of U.S. immigration regulations leads to an increase in requests for further evidence from the U.S. Citizenship and Immigration Services (USCIS) on employment-based petitions, and delays in visa issuance at the U.S. consulates and embassies abroad. This stricter reading of U.S. immigration regulations interpreted through the lens of national security and protecting the U.S. workforce has caused significant concern throughout the business and immigrant population on the future of business opportunities and growth in the U.S.
Let’s take a closer look at how this restrictive position impacts the process of employing foreign nationals in the U.S. First; the USCIS is focusing on whether the wages paid to foreign workers are commensurate and not significantly below what U.S. workers are paid to perform the same or comparable role. Since late August of this year, the USCIS has issued questions to U.S. employers to justify how a position may qualify under the H-1B requirements of a specialty occupation: a job that requires a degree in a specific field of study, if the employer is only paying an entry-level salary. The USCIS questioned whether a foreign worker paid a level one or entry-level wage qualifies for a position that requires a bachelor’s degree or the equivalent for the role. There is clear guidance issued by the U.S. Department of Labor (USDOL) on how to determine the different wage levels for an offered position. For individuals right out of school, a level one or entry-level wage may be appropriate and does not undermine the legitimacy of the U.S. employer’s petition for an H-1B worker. If a U.S. employer is planning on paying a level one wage to a foreign worker, they should include additional evidence that the salary is appropriate for the role, including information on other workers who hold the same position. The employer should also demonstrate through the job duties why the position requires at a minimum, a bachelor’s degree or higher in a specific specialty.
Another way the restrictive U.S. immigration policies are playing out is the recent memorandum guiding USCIS on the review of extension petitions where a worker has held the same or similar role previously and granted approval in the same visa category.  The guidance confirms that there should be no deference paid to prior decisions made by USCIS, even though the USCIS benefits by not spending additional resources to double and triple check the legitimacy of prior decisions. In theory, checking to make sure that a previous conclusion was not erroneous is a good practice. But by allowing the Service to review decisions for cases previously approved where there are no or minimal changes, the U.S. government can apply a restrictive position on all U.S. immigration petitions that may further delay the visa process.
Additionally, the U.S. Department of State (DOS) has issued guidance for heightened scrutiny for U.S. visa applicants, requiring them to undergo further review, limiting the number of visa interviews, and delaying the visa issuance process overall.  Security concerns and vetting the background of visa applicants has always been a part of the U.S. immigration process and is nothing new. The continued security of the U.S. is of great importance, however, the level of scrutiny now openly expressed and endorsed the memorandum may attribute to a xenophobic stance. This position by the U.S. government may undermine the reliability of U.S. immigration regulations by making enforcement and restrictionist policies the critical component of adjudications. Detailed thought and effort in preparing U.S. immigration petitions are required to navigate through these changes in the U.S. immigration landscape.