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2019 Outlook: Business to Push Back Against Immigration Policies

Dec. 27, 2018, 10:47 AM

Federal agencies are likely to continue to tighten the screws on the legal immigration system next year, while Congress and the courts focus primarily on high-profile issues such as border security, asylum seekers, and dreamers.

The Trump administration likely will carry on with its regulatory and policy changes that are reshaping business immigration, Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center, told Bloomberg Law. Most of those changes have been extremely technical, and so largely have flown under the radar.

That’s exactly why these types of changes are likely to continue, she said.

But 2019 also is likely to be the year that the business community starts fighting back.

By next year, U.S. Citizenship and Immigration Services “will have tested the waters of how far they can go” in changing the immigration landscape through visa petition decisions, Liz Espín Stern of Mayer Brown in Washington told Bloomberg Law.

It’s likely the USCIS will have a “more harmonized approach” to its visa decisions that’s likely to result in even more denials than employers are seeing now, she said.

Employers Turn to the Courts

Under prior administrations, the business response to a visa denial would’ve been to refile the visa petition with new documentation addressing the reason for the denial. In some cases, employers would seek administrative appellate review within the USCIS.

But with wholesale shifts in USCIS policy, those approaches aren’t likely to gain traction.

“Frankly, the environment is now susceptible to litigation,” Stern said. Businesses are starting to see a consistent adjudication pattern “that reverses decades of practice” and “runs counter to industry hiring standards,” she said.

That’s particularly true with respect to H-1B skilled guestworker visas. The visas, popular in the tech industry, have been a target of the administration since the release of President Donald Trump’s Buy American and Hire American executive order.

More Regulations

At the beginning of 2019, all eyes will be on a proposed regulation to overhaul the H-1B lottery. The USCIS has held the lottery annually for the past several years because demand has far outstripped the supply of 85,000 visas.

The proposal would require employers to pre-register, waiting until after being selected in the lottery before filing a full H-1B petition with documentation. It also would reorder the lottery process to increase the percentage of H-1B workers who have advanced degrees from U.S. colleges and universities.

USCIS Director L. Francis Cissa has stated repeatedly that he wants the new process in place by the time the next H-1B lottery rolls around in April.

The agency also is planning a regulation for August 2019 that would redefine the jobs eligible for H-1B visas “to increase focus on obtaining the best and the brightest foreign nationals,” according to the most recent regulatory agenda.

In addition, the USCIS is moving forward with a plan to rescind work permits for the H-4 spouses of H-1B workers who are waiting for their green cards despite prior delays in its release.

These regulations also are likely to spur litigation.

What About Congress?

Congress also could step in on certain discrete issues, although a broader overhaul measure is extremely unlikely.

“There has never been major immigration reform in an odd-numbered year” because it’s usually tied to the election, Stern said.

Sen. James Lankford (R-Okla.), a key player on immigration, recently indicated to Bloomberg Law that a comprehensive bill akin to the one that passed the Senate in 2013 won’t be on the table. But smaller measures are a possibility, such as providing legal status for young, undocumented immigrants in exchange for border security funds.

A Democratic-controlled House could change the dynamic. “They could pass a series of messaging bills” that “have no chance” in the Senate, Brown said.

But “I don’t want to dismiss Congress entirely,” she said.

The appropriations process always carries the potential for immigration-related riders, such as expansion of H-2B seasonal guestworker visas. Rep. Kevin Yoder (R-Kan.) also attached a provision eliminating per-country caps on employment-based green cards to a Homeland Security Department funding bill.

U.S. Supreme Court decisions also could influence how Congress acts when it comes to immigration.

A ruling in favor of the administration’s push to end the Deferred Action for Childhood Arrivals program would likely spur legislation providing legal status for the undocumented immigrants protected by the program. The same could be true with respect to a ruling on the administration’s decision to end temporary protected status for the nationals of several countries, including Haiti, El Salvador, Honduras, Nepal, Nicaragua, and Sudan.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com