Joseph Barnett, Robert Blanco, Zara Najam, Charina Garcia and Brandon Meyer, Wolfsdorf Rosenthal LLP
The palpable increase in anti-immigration rhetoric has brought immigration policy to the front page in the US and across the globe. While the debate over immigration is not new, prejudices against immigrants are growing internationally, based on the fear of terrorist threats, or claims that immigrants compete for jobs with low-income workers and depress domestic wages (or, of course, race and ethnicity biases). In the USA, public sentiment over immigration has become charged, even though it has long been known as a country of immigrants and despite the overwhelming evidence that immigration has been historically beneficial to it.
Immigration has become a defining issue in US politics. Recent US elections indicate that congressional voting records on immigration may soon become a “litmus test” for electability. The US Congress has not passed meaningful immigration reform since the early 2000s, despite changing circumstances and its growing importance on the nation’s economy and society.
The US Supreme Court noted in its decision of Trump v Hawaii that the executive branch enjoys expansive power under current immigration laws and broad discretion to suspend the entry of immigrants into the US. When released on 26 June 2018, upholding President Trump’s controversial travel ban affecting several mostly Muslim countries, the opinion was cheered by anti-immigrant restrictionists and national security hawks, and lambasted by Fortune 500 companies, major US universities and civil rights advocates, among many others. Yet, it demonstrated globally that the authority of the US executive branch over immigration includes the power of its administrative agencies to act as directed by the President.
US Citizenship and Immigration Services (USCIS) and the US Department of State (DOS) have thus been attempting to reconcile US immigration law and regulations with directives from the executive branch to limit lawful immigration by any and all means necessary – including restrictive policy reforms; longer processing times; lengthy, burdensome requests for evidence (RFEs); and sometimes even making up new requirements – often at the expense of fundamental principles of due process and fairness.
As we noted last year, President Trump’s immigration policy has been marked by unpredictability and exclusion; without proper planning, business and family goals can be disrupted. In these trying times, it is critical to use experienced immigration counsel who can find creative legal solutions to such restrictive adjudication policies and demand that the rule of law be followed. More than ever, immigrants and US businesses sponsoring foreign employees are standing up to USCIS and DOS adjudications and litigating over its immigration policies.
The uncertainty surrounding US immigration is highlighted by the Buy American and Hire American Executive Order (BAHA) signed by President Trump in April 2017. Since then, immigration adjudications have focused efforts on the enhancement of fraud detection and the prevention of immigration fraud or abuse.
Specifically, the “Hire American” policy under BAHA, which “refers to the body of law and policy concerning how [US] immigration, visa, and guest worker programs are operated to ensure proper protections for American workers”, has greatly impacted the adjudication of immigration petitions. Under “Hire American”, the executive branch (including USCIS and DOS) is “to rigorously enforce and administer the laws governing entry into the United States of workers from abroad.” BAHA calls for the Attorney General, the DOS, the US Department of Homeland Security (DHS) and the US Department of Labor (DOL) to:
as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of [the US] immigration system, including through the prevention of fraud or abuse.
BAHA remains intact as originally written, and the DHS, USCIS, the DOS and the DOL have each instituted policy memoranda and operational changes to implement it.
For example, USCIS’ previous policy of giving deference to prior determinations of eligibility has been rescinded, and it is not uncommon for petitions that were previously approved, sometimes without an RFE, to now receive additional scrutiny for foreign employees who have been in the USA for a number of years. As such, immigrants must be prepared to explain how their entry (or continued presence) has a positive impact on the US economy. Top immigration counsel can assist foreign companies with strategies for reducing the likelihood of petition denials by USCIS or visa refusals by the DOS based on the incredibly vague standards set forth in BAHA.
Despite increased rates of denial in most visa categories, the EB-5 immigrant investor programme has continued to enjoy relatively high approval rates throughout the current administration. EB-5 remains a viable option for those able to invest at least US$500,000 in a project that creates 10 full-time jobs for American workers. Creating jobs for Americans fits nicely with the President’s BAHA executive order.
A broad overhaul of the programme – including an increase in the minimum investment amount, new government oversight authority and new definitions of targeted investment areas – has yet to occur, despite three years of proposed legislation and government regulations. Instead, the programme has been extended in short-term increments without change, often at the eleventh hour. However, it was also stymied by two government shutdowns in 2018, contributing to fears of the programme’s long-term viability. The uncertainty of the EB-5 programme’s future is particularly troubling, as it is a vehicle for billions of dollars of investment into the US, which also includes the creation of countless employment positions for US workers. For now, this door remains open.
Similarly, new doors are opening for certain non-immigrant investors who will soon be eligible to apply for E-2 Treaty Investor visas. On 3 August 2018, President Trump signed the Knowledgeable Innovators and Worthy Investors Act (aptly named the KIWI Act) into law allowing eligible New Zealand nationals to join the 80-plus countries that benefit from the US E-2 Treaty Investor visa. New Zealand joins Israel as the only countries to add qualifying treaties in the last decade, although final regulatory steps must be completed before E-2 visas may be issued.
While anti-immigrant rhetoric may assist in winning the Electoral College, the reality is that the USA needs foreign “skilled” and “unskilled” workers to keep its economy growing. Certain industries in the USA, such as agriculture and the service industry, are totally dependent on immigrant labour and rely on the H-2A Temporary Agricultural Workers visa programme, which allows US employers to bring foreign nationals from certain countries to the USA to fill temporary or seasonal agricultural jobs that most US workers are unable to fill. Notably, there is no annual cap on H-2A visas, because these immigrants do work that no US worker is willing to do.
Demand by US companies for foreign workers in certain categories is through the roof, as the national unemployment rate fell below 4 per cent in 2018. For example, within the first five minutes of opening the certification process on 1 January 2019 for H-2B temporary non-agricultural workers, the DOL’s system was overloaded with more than 97,800 applications for the 33,000 available visas, and crashed. Despite his assailment at US companies that hire foreign workers, President Trump has used H-2B visas to fill openings at his golf clubs, including Mar-a-Lago, and in fact temporarily expanded this visa category in 2017. These workers do not have high-level skills or impressive educational levels, characteristics that support the “merit-based immigration” policies President Trump has publicly advocated for.
President Trump’s corporate immigration policies claim to protect US jobs, with the simplistic assumption that any job given to a foreign worker could and should have gone to a US citizen. However, this ignores the realities of corporate immigration: If US workers were readily available for these positions, employers would not bother with the added expense, uncertainty and lengthy processing times related to US immigration adjudications. In fact, the actions of the Trump administration have worked to consistently undermine the ability of US employers to attract and retain the best and brightest talent. Yet, USCIS appears to view high-skilled foreign-born professionals more as threats to US workers than as assets to the US economy. Further, immigrants who enter the US through family-based sponsorship are workers, entrepreneurs, caregivers, teachers and neighbours. These individuals should not be left behind and attacks on immigration ignore the fact that the US economy needs all kinds of workers.
Following the example set by the USA and the Trump administration, the main theme of immigration globally in recent years has been restrictionism, protectionism and global fragmentation.
The decision by the UK to leave the European Union has delivered a major blow to the promotion of a more open and integrated world. With Brexit looming over the United Kingdom, there is ongoing unpredictability about the rights of EU and non-EU workers employed in the UK, among other uncertainties. Europe in general has been heavily impacted by the refugee crisis, which has caused a negative shift in public opinion towards immigrants. Countries in the Middle East such as Oman, Saudi Arabia and the UAE continue to focus on establishing policies geared towards recruitment of local workers by decreasing work permit quotas and enforcing localisation laws more strictly. Australia has implemented more changes to its immigration system in the past year than it has in the past 12 years, including abolishing certain visa categories and increasing visa application fees for other categories.
While the general trend has been to close doors to immigrants, Canada has decidedly emerged as an immigration-friendly nation by opening its door to the world’s brightest minds and recognising the importance of economic immigration in spurring domestic innovation. Canada’s largest province, Ontario, recently changed its “Welcome” signs at the border to “Open for Business”. The immigration quotas have steadily increased every year and Express Entry, Canada’s permanent residency programme, continues to accept more applicants each year.
Despite the general shift towards stricter immigration policies, the vision of an integrated and highly interconnected global economy reigns supreme. Globalisation is inevitable, in large part due to a rising need for skilled global talent, even by the countries tightening their borders. However, proper planning and accounting for the ever-changing political and economic shifts is the key to successful international expansion. It is imperative that during this process, corporations seek the assistance of immigration attorneys who are aware of the current global immigration climate and can develop creative legal solutions to meet their business needs.
Government enforcement of unpredictable and restrictive immigration policies, applied sometimes without warning, can destroy a corporation’s endeavour and cause widespread headaches for human resource managers, and for employees and their families. As immigration attorneys, our role is to provide innovative immigration strategies to overcome these hurdles. It is our ethical duty and responsibility to remain apprised of recent developments, in the legislative, executive and judicial branches, and to understand the nuances of USCIS, the DOS and immigration agencies around the globe on behalf of our clients.