In 2019, the large policy and enforcement shifts signposted in 2017 and 2018 continued to play out with stricter immigration enforcement across the board. While we don’t expect to see seismic shifts in the coming year, there are a few issues to watch for in 2020.
(1) H-1B “Specialty Occupation” Definition Change Likely to Stall in Court
USCIS has indicated it will be announcing an official change to the definition of “specialty occupation.” While we have already seen a detrimental shift in the H-1B adjudication process, this would be an official regulatory change. We expect that any attempt to re-interpret the H-1B statute as narrowly as possible will face a lengthy court battle.
(2) H-1B Lottery Registration System
The government plans to use a new registration system originally announced in 2018 for the upcoming FY2021 H-1B Cap Season. According to USCIS, the initial registration window will be open from March 1 through March 20. However, the system has yet to be fully tested and USCIS has not yet issued registration instructions, so the implementation could still be delayed.
(3) H-4 EADs Still a Target
The government is likely to issue a regulation eliminating H-4 EADs. This change has been rumored for several years; however, we have learned that the draft regulation is making its way through the administrative process and is likely to be issued this year. If it does take effect, we expect the government to stop accepting applications for new EADs and renewals, but to allow current EADs to remain valid until their expiration dates.
(4) L-1 Regulation Possible
The government may also make a shift in the L-1 regulations that could narrow the scope of specialized knowledge, and could modify the definition of what it means to be a manager or executive. While some clarity could be helpful, we believe the goal would be to narrow the usefulness of this visa category, and, like any changes to the H-1B regulations, L-1 changes would also likely stall in court.
(5) New Hurdles for Visa Issuance
We expect the trends in strict scrutiny by US consulates issuing visas to continue playing out through increases in administrative processing, “extreme vetting”, and visa denials. While in recent years, obtaining USCIS approval of a visa petition was the biggest hurdle, the visa application process at US consulates may be just as challenging.
(6) Fee Increases for USCIS and Visas
USCIS is expected to announce a set of fee increases in early 2020. This follows a proposal circulated in the fall. Visa reciprocity fees are also increasing for some countries.
(7) Stalemate on Capitol Hill
While immigration is making political headlines, there doesn’t seem to be much appetite for immigration legislation in the House or Senate, especially during an election year. A few proposals in 2019 to change elements of the immigration system have stalled. Expect to hear politicians speaking about immigration, but not acting on any substantive legislation.
(8) DACA at the Supreme Court
Following oral arguments last November, the Supreme Court is expected to issue its ruling on the future of Deferred Action for Childhood Arrivals (DACA) sometime in the spring. The court could end DACA, uphold DACA, or send it back to the lower courts for further review. Since DACA beneficiaries have work permits, a change to the program could have a major impact on these individuals, as well as on businesses in a variety of industries.
(9) Worksite Enforcement Across All Industries and Elements of Immigration
In a continuation of recent trends, expect to see all immigration-related agencies step-up their worksite enforcement activities. This includes not just the well-publicized ICE raids on employers of low-skilled workers, but also I-9 audits, no-match letters from Social Security, and a new focus on employers of foreign student graduates.
(10) Companies Exploring Options in Other Countries
As the US immigration process gets more complex, restrictive, and uncertain, companies may look to other countries for opportunities to grow their workforce. Countries like Canada, the United Kingdom, Ireland, Australia, and Singapore continue to provide good alternatives.
We will continue to provide updates throughout the year as these issues unfold.