On February 15, 2018, we blogged about the upcoming end of temporary protected status and employment authorizations of persons from Haiti, El Salvador and Honduras. However, employing non-immigrant workers in other statuses is also at risk as the current administration has made it clear that it intends to continue to present barriers to U.S. employing foreign workers. With the H-1B lottery deadline for the year beginning October 2018 quickly approaching, employers should be considering whether they will need to find alternate means by which to employ of certain classes of visa holders.
No Longer a “Nation of Immigrants”
Since 2005, the U.S. Citizenship and Immigration Services’ mission statement had been focused on welcoming immigrants to the U.S. The former USCIS mission statement read: “USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.” No longer does the February 22 mission statement refer to a “nation of immigrants,” but instead focuses on homeland security: The “U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.” Corresponding with this refocused mission is the threat to the employment of non-immigrant workers.
Employment Authorizations of H-4 Visa Holders Likely to be Rescinded
Certain H-4 dependent spouses of H-1B workers can file Form I-765, Application for Employment Authorization. However, on many occasions the Department of Justice and the Department of Homeland Security have stated that they intend to rescind EADs for H-4 visa status holders. It now appears that the rescission is likely to take place in the near future. Employers who employee H-4 workers should be prepared to find alternate means of legally employing them.
Tougher Standards for Employing H-1B Workers at Third-Party Locations
On February 22nd, the U.S. Citizenship and Immigration Services’ Policy Memorandum requires that for an H-1B visa petition involving a third-party worksite to be approved, the petitioner must show “by a preponderance of evidence” that, among other things, the worker will be employed in a specialty occupation and the petitioning employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period. If your organization provides H-1B workers to third-parties, you should be prepared to respond to requests for evidence beyond what you have experienced in the past, denials of petitions, and, possibly, the granting of H-1B visas for less than three years.
Organizations that employ non-immigrant workers in these categories should consider whether they may be alternate bases for authorized employment. Skoler Abbott attorneys are available to assist you in that process.