Visa Restrictions Under the Trump Administration
By Jerome G. Grzeca Founder & Managing Partner, Grzeca Law Group, S.C. | December 23, 2018
While immigrants make up approximately 13 percent of the U.S. population, they account for nearly a third of hotel workers, making the hotel industry one of the largest employers of immigrant workers in the United States. Accordingly, hotels are heavily impacted by ever-changing immigration policies and restrictions, and for years, have struggled to fill jobs with the workers they need.
One example of the high demand for foreign workers can be seen in the H-2B visa program, a program commonly used by hotels, which allows U.S. employers to bring foreign nationals to the United States to fill temporary seasonal nonagricultural jobs. H-2B visas are statutorily capped at 66,000 per fiscal year, split evenly between the first and second half of the fiscal year. The number of H-2B visa applications have been steadily climbing since 2009 as demand for temporary workers has increased. In May 2018, Congress informed the U.S. Department of Homeland Security (DHS) to issue an additional 15,000 H-2B visas after finding there were not enough U.S. workers available to take the jobs.
Nonetheless, demand for temporary workers has continued to exceed the number of available visas, resulting in the cap being met earlier and earlier. This problem was further exacerbated by the loss of the "returning worker" exemption in 2016, which previously allowed workers who had already been in the U.S. on an H-2B visa during a certain timeframe to be exempt from the cap. In fact, for petitions requesting an April 1, 2019 start date, demand is expected to be so high that the U.S. Department of Labor (DOL) has announced that it will assign H-2B applications to adjudicators based on the time they were received, measured to the millisecond. Thus, filing at any time on January 1, 2019, the first available filing date, will no longer be sufficient to receive an H-2B visa.
Extreme Vetting of Applicants
Since taking office, President Trump has made clear that he intends to take action on his campaign promise of further restricting legal immigration, making it even harder for hotels to hire and keep the foreign workers they need. Just a week after his inauguration, President Trump issued an executive order titled "Protecting the Nation from Foreign Terrorist Entry into the United States," a revised version of which was issued in March 2017. While the order's infamous "travel ban," which restricted entry for individuals from six predominately Muslim countries, has received the most public attention, the order also calls for the implementation of heightened immigration screening standards, referred to as "extreme vetting," a directive which has had a profound effect on legal immigration across the board.
For example, the U.S. Department of State (DOS) has implemented a new supplemental screening form, DS-5535, to collect extensive information, such as travel, address, and employment history for the last 15 years, as well as social media information, from certain visa applicants who have either derived from, or traveled to, certain countries in the Middle East. In addition, we have seen an increased number of cases placed in "administrative processing," an additional stage of national security review, following the visa interview. While the DOS advises that most administrative processing cases are resolved within 60 days, many cases remain pending for much longer. This extremely burdensome process has resulted in some hotels having to revoke valid job offers in the United States because the property cannot wait six months for an employee while a U.S. Embassy further "reviews" the visa application.
Moreover, U.S. Citizenship and Immigration Services (USCIS), the government agency responsible for adjudicating immigration benefits applications in the U.S., has mandated in-person interviews for all applications for permanent residence based on employment. Previously, these types of applications were largely exempt from in-person interviews, unless the applicant had a criminal history or prior immigration violations. USCIS has stated that this change provides the agency with the opportunity to verify information provided in the application, to discover new information that may be relevant, and to determine the credibility of the applicant. However, this added hurdle has resulted in hundreds of thousands more administrative interviews, which has caused a notable increase in processing times for employment-based permanent residence applications, as well as many other types of immigration benefit applications.
Heightened Scrutiny of Employment-Based Immigration Petitions
Policy changes under the Trump Administration have also resulted in heightened scrutiny of several types of employment-based immigration petitions. In April 2017, President Trump issued an executive order, titled "Buy American and Hire American," which states that it "shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad." To that end, the order directs the various federal agencies to "propose new rules and issue new guidance . . . to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse."
The DOS has specifically instructed its officers at U.S. Embassies and Consulates abroad to adjudicate certain types of employment-based visa petitions "in the spirit" of the "Buy American and Hire American" Executive Order. To this end, practitioners report that applicants have been asked to provide more information about why their job could not be performed by a U.S. worker at their visa interview, even after a petition has already been approved by USCIS, and even though such "worker protections" have historically been under the purview of the DOL.
In addition, since the issuance of this order, we are seeing a dramatic increase in the number of Requests for Evidence (RFEs), written requests from USCIS for more information or documentation in employment-based cases. For example, for H-1B petitions, a type of visa petition that permits employers to employ foreign nationals in specialty occupations requiring at least a bachelor's degree, USCIS issued RFEs in nearly 70 percent of cases in the fourth quarter of fiscal year 2017, an increase of 41 percent from the previous quarter! In particular, USCIS has challenged "Level 1," or entry-level, wage positions, asking the company to explain how a job can both be entry-level and at the same time qualify as a "specialty occupation."
We are also seeing a high number of RFEs for L-1 visa petitions, a type of visa that allows multinational employers to transfer managers, executives, or individuals with "specialized knowledge" to U.S. worksites. Where previously a declaration from the employer may have been sufficient to prove that the employee possesses the requisite "specialized knowledge," immigration agencies are now requesting additional evidence such as declarations from the employee's direct supervisor and copies of work product.
Similarly, where an organizational chart indicating the employee's direct reports may previously have been sufficient to prove that an employee qualified as a managerial employee, immigration agencies are now requesting additional evidence, such as a full list of all employees that report to that manager, detailing each of their job descriptions and education. While scrutiny of L-1 visa petitions has always been high, denial rates have increased dramatically following the issuance of the "Buy American and Hire American" Executive Order, increasing by 67 percent for multinational manager and executive cases, and by 32 percent for "specialized knowledge" cases.
Further, we are seeing increased scrutiny of TN visa petitions, a visa classification created by the North American Free Trade Agreement (NAFTA) that allows certain qualified Mexican and Canadian citizens to work in the U.S. in specific occupations, including as Hotel Managers. Our office has submitted dozens of TN Hotel Manager petitions over the years for department head and sub-department head positions at hotels. However, USCIS has recently requested additional information in a restrictive reading of the hotel manager category, essentially requiring that the employee be the General Manager in order to qualify.
New Policies on Issuing Denials in Immigration Cases
USCIS has also issued new policies that make it easier to deny immigration applications. For example, according to a memorandum issued this past summer, USCIS officers may, in their discretion, issue an outright denial of an immigration petition when it that lacks some piece of required initial evidence. This new policy explicitly rescinds longstanding USCIS guidance, which instructed its officers to issue an RFE or Notice of Intent to Deny (NOID) unless there was "no possibility" that the deficiency could be cured by the submission of additional evidence. USCIS officers are now empowered to deny a petition without providing the applicant with the opportunity to correct or explain any deficiencies.
This new policy is particularly troubling in light of another change announced last year regarding the adjudication of extension petitions. For years, a USCIS policy memorandum directed its officers to defer to prior determinations of eligibility when adjudicating extension petitions involving the same parties and underlying facts as the initial petition. However, last year USCIS rescinded this memorandum and directed its officers to thoroughly review extension petitions and evidence to re-determine eligibility for the benefit being sought. Now, if an extension petition is re-adjudicated, it may be denied under these new policies and heightened scrutiny, making it difficult for the employer to plan for future staffing needs.
While the consequences of these two new policies are severe, USCIS rolled out another policy memorandum this past summer, which has vastly expanded the agency's ability to issue Notices to Appear (NTAs), the charging documents that could place temporary workers in removal proceedings before an immigration judge, following the denial of a visa petition. Under prior guidance, NTAs were to be issued in cases involving national security threats, criminals and noncitizens engaged in fraud. However, the new guidance, which went into effect October 1, 2018, instructed USCIS officers to issue NTAs in a broader range of circumstances, including any case in which, upon denial of the application, an applicant is unlawfully present in the U.S., resulting in devastating effects on foreign nationals who have had their immigration petition denied.
Increased Worksite Enforcement
Consistent with its drive to remove undocumented workers from the United States, the Trump Administration has sharply increased its worksite enforcement efforts. U.S. Immigration and Customs Enforcement (ICE) has announced that between January 1, 2018 and July 9, 2018 it served employers with more than 5,200 I-9 audit notices, already nearly quadruple the 1,360 audits that it conducted in all of fiscal year 2017. Upon receiving a Notice of Inspection (NOI) from ICE, employers have just three days to produce their I-9 records, at which time ICE will review the records to verify that the employer has properly documented its employees' eligibility to work in the U.S. Employers not in compliance will likely receive civil fines, and in cases where employers knowingly employed undocumented workers, the employers may also face criminal prosecution. In addition, workers encountered during these investigations who are not authorized to remain in the United States are subject to administrative arrest and removal from the country.
Even if no undocumented workers are found, employers can still be held responsible for shockingly high financial penalties for clerical errors or omissions that seem like simple I-9 violations. For example, a substantive violation like not dating your signature can result in a penalty anywhere from $220 to $2,191 for each substantive error on each I-9, which can add up quickly. In fact, in 2015, a company was ordered to pay over $600,000 in fines for nothing more than paperwork violations, such as the employer's repeated failure to sign Section 2 of the I-9.
Moreover, the Social Security Administration (SSA) has recently announced that beginning in 2019 it will resume sending "no-match" letters to employers when information submitted on tax forms does not line up with the SSA records, a practice that has not been in effect for the past six years. While there may be many reasons for a discrepancy, such as typographical errors, name changes, and incomplete information, failure to act upon receipt of a no-match letter may be interpreted as constructive knowledge of continuing to employ undocumented workers. Thus, receipt of a no-match letter may create an affirmative obligation for the employer to investigate the discrepancy.
In addition, the DOL recently announced increased enforcement efforts surrounding the H-2B visa program. The DOL has stated that it will be investigating businesses, particularly the hotel industry, to ensure that are not bringing in foreign workers instead of hiring American workers. The DOL's Wage and Hour Division is taking this initiative to ensure H-2B program compliance and to demonstrate "commitment to safeguard American jobs, level the playing field for law-abiding employers and protect guest workers from being paid less than they are legally owed or otherwise working under substandard conditions."
Loss of Work Authorization for Some Workers – DACA, TPS, and H-4 EADs
In addition to these changes to employment-based immigration programs, the Trump Administration has enacted several changes to other immigration programs, which have had an effect on the workforce in the U.S. Perhaps the most well-known change is to the Deferred Action for Childhood Arrivals (DACA) program, an Obama-era program which grants work authorization to approximately 800,000 individuals who were brought to the U.S. illegally as children, have attended or graduated school in the U.S., and meet certain residency requirements. In September 2017, President Trump ordered an end to the DACA program, a decision challenged by multiple lawsuits in the following months.
Currently, USCIS is not accepting new DACA applications, but individuals who have or have previously had DACA can still apply to renew it. In addition, President Trump has ended Temporary Protected Status (TPS) for nationals of six countries, a program that provides temporary humanitarian protection to nationals of certain countries suffering from a violent conflict or natural disaster. The elimination of these programs has left some employers scrambling to find employment authorization options for valued, skilled employees.
Further, DHS has stated that it plans to rescind work rescind work authorization for spouses of H-1B workers, or H-4 nonimmigrants. While it is still unclear when this new rule will be finalized, DHS stated in a court filing to the D.C. Circuit Court in August that the change is in final clearance review and that "senior levels of the department's leadership" are "actively" reviewing the agency's notice of proposed rulemaking for approval. Loss of work authorization for these individuals will surely have an impact on the hotel industry.
While the Trump Administration has not yet enacted all of the changes promised on the campaign trail, it is clear that it has placed a high priority on restricting immigration such that it has already created an "invisible wall" to legal immigration benefits in the U.S. These changes have already had an impact on hiring and staffing in the hotel industry.
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