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SPRING 2019 TODAY’S GENER AL COUNSEL

Labor & Employment

Trump’s Hard Line Includes Business Immigration By David Leopold

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he media is replete with reports about the Trump administration’s crackdown on unauthorized immigration. Indeed, a dispute over the funding of President Trump’s border wall led to the longest government shutdown in U.S. history. However, the administration’s hard line immigration policies are not singularly focused on illegal immigration. Trump has also called for a record reduction in legal immigration and has taken aim at U.S. businesses that hire foreign professionals. Now, companies must navigate an increasingly complicated maze of policies aimed at business immigration. It’s a new world for companies that seek to employ and retain foreign professionals. BUY AMERICAN, HIRE AMERICAN

In April 2017, Trump signed the executive order titled Buy American and Hire American (BAHA). The order was meant to set the economic tone of the administration’s America First policy. Although it does not purport to change immigration statutes — only Congress can do that — it directs government agencies to “rigorously enforce and administer” the immigration laws and “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid” foreign workers. In effect, BAHA attempts to convert U.S. Citizenship and Immigration Services (USCIS) — the Department of Homeland Security (DHS) bureau tasked with adjudicating business visa petitions — from an immigration benefits agency to an enforcement arm of the DHS. To illustrate the practical impact of Trump’s BAHA order on businesses, let’s consider the hypothetical case of Adita Patel and her employer, U.S.based CRT Engineering Group LLC (CRT).

Patel, a native of India, works in San Francisco as an entry-level engineer for CRT, a leading international engineering firm. Patel originally entered the U.S. on an F-1 academic student visa to pursue a bachelor’s degree in civil engineering at the Massachusetts Institute of Technology. Upon graduation, she began working for CRT in a post-graduation student visa program known as Optional Practical Training (OPT), which is available to foreign students who complete degrees at American institutions. OPT authorizes a foreign graduate to work for an employer in the U.S. for one year. Since Patel earned a STEM degree at a U.S. institution of higher education, and since CRT uses the DHS’s E-Verify electronic employment authorization verification system, Patel was eligible to extend her OPT for an additional 24 months. In April 2017, shortly before Patel’s OPT was set to expire, her employer sponsored Patel for a H-1B non-immigrant (temporary) visa classification, which is available to foreign professionals whom U.S. employers seek to employ in “specialty occupations” that require a bachelor or higher degree, such as civil engineering. Because H-1B visas are subject to an 85,000 visa annual quota tied to the federal fiscal year, CRT filed its H-1B petition on Patel’s behalf on April 3, 2017, the earliest possible filing date in advance of the fiscal year (FY) 2018. By April 7, USCIS had received 236,000 H-1B petitions for the available 85,000 slots.

CRT and Patel were fortunate because USCIS selected Patel’s H-1B petition in a random lottery the agency conducts when the number of petitions received far exceeds the available H-1B slots. REQUESTS FOR EVIDENCE, PETITION DENIALS

Since BAHA was issued, there has been a marked increase in USCIS pushback against H-1B petitions in the form of requests for additional evidence and outright denials. The proportion of H-1B petitions denied for foreign-born professionals increased by 41 percent from the 3rd to the 4th quarter of FY 2017, from a denial rate of 15.9 percent to 22.4 percent. The number of Requests for Evidence in the 4th quarter of FY 2017 almost equaled the total number issued by USCIS adjudicators for the first three quarters of FY 2017 combined. Failure to comply with an adjudicator’s Request for Evidence will result in the denial of an application. As a percentage of completed cases, the Request for Evidence rate was approximately 69 percent in the 4th quarter compared to 23 percent in the 3rd quarter of FY 2017. In Patel’s case, it’s likely that several weeks after the H-1B petition had been accepted for processing, USCIS would have issued an extensive request for evidence in support of it. USCIS now routinely seeks additional evidence of a petitioning company’s ability to pay the offered salary — even if, as in the

Trump has also called for a record reduction in legal immigration and has taken aim at U.S. businesses that hire foreign professionals.

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Today's General Counsel, Spring 2019