Author: Breanne Johnson

With former President Donald Trump’s return to office, U.S. immigration policy is likely to undergo substantial changes that will impact business immigration. Drawing on Trump’s prior administration, his campaign promises, and recent expert analyses, we can anticipate shifts in policy that will directly affect employers and noncitizen employees in a myriad of ways. Here are a few ways that we might see business immigration change with the new administration:

1. Higher Scrutiny for H-1B Visas: One of the main changes we anticipate is heightened scrutiny for H-1B applications, likely leading to stricter requirements and a rise in RFEs and denial rates. The Trump administration may look to restrict the definition of specialty occupation, raise prevailing wages, and eliminate prevailing wages levels 1 & 2. Additionally, the administration may attempt to scale back or eliminate the H-4 EAD program, which currently permits spouses of H-1B visa holders to work in the U.S.
2. Increased Compliance and Enforcement Measures: Employers can expect an uptick in compliance demands across nonimmigrant and immigrant visa programs. The Trump administration may push for mandatory E-Verify nationwide, requiring all employers to verify the work eligibility of their employees. Worksite audits and I-9 Employment Eligibility Verification checks could become more frequent, with substantial penalties for non-compliance.
3. Focus on Merit-Based Immigration: Merit-based immigration, a hallmark of Trump’s initial policy agenda, is likely to re-emerge. This approach prioritizes skilled immigrants who can directly contribute to the economy rather than family-based or humanitarian entries. Legislative efforts may prioritize applicants based on skills, education, and economic contributions, which could reshape the demographic makeup of employment-based visas.
4. Restrictions on Humanitarian Programs: The Trump administration is expected to curtail humanitarian immigration programs. Proposals to end Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) are on the table, affecting thousands of foreign nationals who currently have work authorization. Changes in asylum policies and restrictions on humanitarian parole programs could also impact business immigration, as these programs often allow qualified individuals to work legally in the U.S.
5. Potential Reinstatement of Travel Bans: The return of travel bans, particularly those based on nationality or ideological beliefs, may impact international business travel and recruitment. The administration could reinstate or expand these bans, potentially creating complications for multinational companies and U.S.-based businesses that rely on a globally mobile workforce.
6. Revisions to Work Authorization for Specific Visa Categories: Policies affecting the H-4 EAD program and the Optional Practical Training (OPT) program for international students on F-1 visas are likely to be revisited. Changes to work authorization for these visa categories could limit employment opportunities for highly skilled foreign professionals. Additionally, a rollback of visa interview waivers could result in longer wait times and increased security vetting and administrative processing – impacting both current and prospective employees who require visas.

A second Trump administration will likely bring sweeping changes to U.S. immigration policy, with a strong focus on limiting legal immigration and enhancing compliance measures. Staying informed and planning strategically will be key for any organization relying on a diverse, globally sourced talent pool in a potentially restrictive immigration environment.

On June 18, President Biden signed an executive order designed to streamline the D3 waiver process for foreign-born college graduates and DACA (Deferred Action for Childhood Arrivals) recipients. This initiative is a key component of the administration’s broader efforts to create a more efficient and predictable immigration system, particularly benefiting foreign graduates of U.S. colleges and universities who have job offers in fields related to their degrees.

What Is the D3 Waiver?

The D3 waiver is a waiver of inadmissibility that allows a foreign national to request that the US government waive an inadmissibility ground so the applicant can re-enter the US. This waiver process allows foreign graduates and certain individuals, like DACA recipients, to re-enter the United States for employment opportunities related to their qualifications. However, this process has historically been slow, confusing, and unpredictable, causing significant frustration for applicants and their U.S. employers. On average, approval can take several months to over a year, leaving applicants in a state of uncertainty.

Key Changes in the Executive Order

The executive order introduces updated guidance for consular officers responsible for reviewing and processing D3 waiver applications. It aims to expedite the process and emphasizes the importance of these individuals to the U.S. workforce and economy. The new guidance directs officers to consider the following specific factors when deciding on D3 waiver applications:

• Emphasis on U.S. Graduates and Skilled Labor: Consular officers are instructed to recognize that applicants who have graduated from U.S. institutions or possess skilled labor qualifications contribute positively to the public interest in the United States. This is particularly true for those seeking to start or continue employment in fields that align with their educational background or skill set.

• Expedited Processing: The updated guidance encourages consular officers to accelerate the application and approval process for qualified individuals, aiming to reduce the waiting time and uncertainty that applicants currently face which waiting for the waiver to be adjudicated.

By emphasizing the value of foreign graduates and skilled workers in the U.S., the administration seeks to enhance the country’s competitiveness and economic growth. The executive order underscores the need for a more efficient and predictable system that benefits both the applicants and their prospective employers. The updated D3 waiver process provides a faster pathway for talented individuals to contribute to the U.S. economy. This change not only benefits foreign graduates and DACA recipients but also U.S. companies eager to tap into the talent pool these individuals represent.

The Visa Bulletin is a monthly publication issued by the U.S. Department of State that provides updated information on the availability of immigrant visa numbers for individuals seeking permanent residency (green cards) in the United States. It is primarily used by people applying for family-sponsored and employment-based immigration, providing them with “priority dates” that determine their place in line for a visa, based on their application category and country of origin. The bulletin includes two main charts: one for “final action dates,” which indicates when visas may be issued, and one for “dates for filing,” which shows when applicants can submit their green card applications. The Visa Bulletin helps applicants track their progress toward receiving a visa amidst the U.S.’s limited annual quotas.

October starts the federal government’s fiscal year, and this first Visa Bulletin of FY2025 left many visa applicants disappointed with its limited progress and in some cases retrogression. For example, EB-3 China Final Action retrogresses five months from September 1, 2020, to April 1, 2020. Similarly, EB-3 China Dates for Filing retrogresses from July 1, 2021, to November 15, 2020. However, some categories such as EB-3 worldwide Final Action jumped ahead nearly two years. The October 2024 Visa Bulletin does not provide guidance on expectations for the remainder of the fiscal year, but does reset visa availability for the fiscal year. This year’s conservative start has many applicants bracing themselves for longer and longer wait times.

Beginning this September 2024, USCIS will start automatically extending the validity of lawful permanent resident cards to 36 months for permanent residents who file the Form I-90 to renew their expiring green card. Previously, a 24-month automatic extension was applied. Individuals taking advantage of this 36-month automatic extension will need to show their expired green card in addition to the Form I-90 receipt notice to take advantage of the extension for employment authorization and international travel purposes.

On Monday, the U.S. Department of State made a significant announcement: all available Employment-Based Second Preference (EB-2) visas for fiscal year 2024 have been issued. This marks an important update in the annual visa allocation process and will impact employers and workers seeking to utilize this immigration pathway.

The EB-2 visa is designed for foreign professionals with advanced degrees or individuals with exceptional abilities. However, the number of these visas issued each year is limited by the Immigration and Nationality Act (INA), which sets a cap at 28.6% of the worldwide employment-based visa limit. For the 2024 fiscal year, the cap has already been met, meaning U.S. embassies and consulates will not issue any more EB-2 visas until the next fiscal year begins on October 1, 2024.

For U.S. employers, this development temporarily halts the ability to permanently hire foreign talent through the EB-2 program. Foreign workers aiming to secure EB-2 visas will need to wait until the new fiscal year to either apply or continue their application process.

This news follows last month’s announcement from the State Department that all visas in the Employment-Based Third Preference (EB-3), Other Workers (EW), and Employment-Based Fifth Preference (EB-5) categories had also been fully issued for FY 2024. As the new fiscal year approaches, both employers and visa applicants will be looking forward to fresh opportunities in 2025.

In 2017 the US Supreme Court heard the case of Sessions v. Morales-Santana. This case dealt with the issue of gender-based discrimination in the context of U.S. citizenship law. The case addressed whether the Immigration and Nationality Act’s (INA) provisions for acquiring U.S. citizenship at birth violated the Equal Protection Clause of the Constitution.

The specific question was whether the INA’s differing requirements for a U.S. citizen parent to transmit citizenship to a child born abroad based on the parent’s gender were unconstitutional. Under the law, if a U.S. citizen father had a child abroad, the father had to meet a higher residency requirement than a U.S. citizen mother in order for the child to automatically acquire U.S. citizenship.

In Morales-Santana, the Supreme Court found that the gender-based disparity in these requirements was unconstitutional and did violate the Equal Protection Clause of the Constitution. The Court ruled that the law must provide equal treatment for both fathers and mothers in terms of the residency requirements necessary for a child born abroad to acquire U.S. citizenship. The decision required the government to apply the same residency requirements to both mothers and fathers, thus aligning with principles of gender equality under the Constitution.

In its newly released guidance and pursuant to the decision in Morales-Santana, USCIS clarifies how and when children may obtain US citizenship if they were born abroad through their US citizen parent or parents. Want to know more? Schedule a consultation with a CYA attorney!

In the heart of the nation’s political arena, immigration policies are once again taking center stage, casting a spotlight on the fate of the Deferred Action for Childhood Arrivals (DACA) program. With uncertainty looming, senators convened for a hearing today to address what the Senate Judiciary Committee deems an urgent need to protect immigrant youth.

Senator Dick Durbin (IL) chairing the Judiciary Committee, led the discussion by underscoring the invaluable contributions of Dreamers and DACA recipients. However, Senator Lindsey Graham of South Carolina, the committee’s ranking member, struck a different chord in response. Graham emphasized that his current focus lies in addressing what he perceives as the dire state of the border and U.S. immigration policies, expressing reservations about prioritizing the resolution of DACA.

Graham’s stance on the issue suggests a shift from the bipartisan efforts of just a year ago, when both senators introduced the Dream Act of 2023, aiming to grant Dreamers lawful permanent residence. This change underscores the increasingly polarized nature of immigration politics, particularly in the lead-up to the November presidential election.

The DACA program, initiated in 2012 through executive action by former President Barack Obama, has provided a sense of security to over 800,000 young adults brought to the U.S. as children, who lack legal immigration status. However, the program has faced persistent challenges, including attempts by former President Donald Trump to dismantle it. Ongoing lawsuits challenging DACA, primarily led by Republican-led states, have left approximately 400,000 eligible individuals in limbo since a federal judge halted new registrations in 2021.

Despite these hurdles, proponents of DACA emphasize its effectiveness in integrating immigrants into American society. Since its inception, DACA recipients have significantly bolstered the economy, contributing $108 billion in wages and paying a combined $33 billion in taxes, as reported by FWD.us, a bipartisan group advocating for immigration reform.

The DACA debate encapsulates broader tensions within the immigration landscape, reflecting divergent viewpoints on border security, immigration policy, and the rights of undocumented immigrants. As political rhetoric intensifies, the fate of immigrant youth remains uncertain, awaiting decisive action from policymakers grappling with the complexities of the issue.

The H-1B cap lottery process has been conducted and completed for this fiscal year. Given the new H-1B regulation and registration process that was applied to this years’ lottery, no one really knew what to expect as far as what the odds of winning would be and how the process would go. This week USCIS finally released the lottery data which tells us:

• 114,017 beneficiaries were selected in the initial lottery this year.
• There was a decrease in the total number of registrations submitted as compared to last year, including a decrease in the number of beneficiaries with multiple registrations submitted on their behalf.
• This year there were ~442,000 beneficiaries who applied for the H-1B lottery whereas last year the number was ~446,000. However, the number of eligible registrations was down by 38.6% this year as compared to last year.
• Beneficiaries with multiple H-1B registrations submitted on their behalf decreased significantly – this year there were ~47,000 eligible registrations for beneficiaries with multiple registrations compared to more than 408,000 last year. That’s an 88% decrease!

This data tells us that while USCIS’s new regulations have improved the H-1B lottery process and made the system more fair, the H-1B system still falls short of offering the number of temporary nonimmigrant work visas that are needed by U.S. employers to cover demand.

USCIS announced last week that the Form I-693 Report of Immigration Medical Examination and Vaccination Record will no longer expire and can be used indefinitely so long as it was properly competed and signed by a U.S. civil surgeon on or after November 1, 2023. Woo!

Getting the medical exam completed can be expensive and time-consuming. Previously, long processing timelines resulted in applicants for lawful permanent residence needing to re-do their medical exams before their green card could be issued. Now, thanks to updates to public health electronic notification and recommendations from the CDC, USCIS has determined that a Form I-693’s evidentiary value should no longer be limited to a certain period if it is properly completed and was signed by a civil surgeon on or after Nov. 1, 2023. Of course, USCIS officers always have discretion to request more evidence or a new or updated Form I-693 if they have reason to believe the applicant’s medical condition has changed, that the Form I-693 submitted does not accurately reflect the applicant’s medical condition, or the applicant may be inadmissible on other health-related grounds.

If an applicant’s immigration medical examination was completed before Nov. 1, 2023, the prior policy still applies and the medical exam results will be valid for two years from the date of the civil surgeon’s signature.

The I-693 is filed when someone applies to get lawful permanent residence in the United States as a way of showing that they are not subject to any of the medical grounds of inadmissibility. Four general medical conditions can arise to make someone ineligible for permanent residence in the U.S. based on medical grounds. Those include:

1. Drug abuse or addition;
2. Failure to show proof of required vaccinations;
3. A communicable disease of public health significance; and/or
4. A physical or mental disorder with associated harmful behavior.

Public health concerns have been reflected in U.S. immigration law since the Immigration Act of 1882. Among other concerns, “persons suffering from a loathsome or a dangerous contagious disease” were not allowed to enter the United States. In 1990, Congress narrowed health-related grounds of inadmissibility to include only noncitizens with communicable diseases, physical or mental disorders with associated harmful behavior, or those with drug abuse or addiction problems. As of 1996, Congress began to require that all immigrant visa and adjustment of status applicants establish that they have been vaccinated against certain vaccine-preventable diseases.

If you’re looking to become a lawful permanent resident in the U.S. and have questions about health-related grounds of inadmissibility, reach out for a consultation.

It has been a whirlwind of a first quarter for USCIS and immigration attorneys across the country. In addition to USCIS announcing the conclusion of the H-1B Cap Lottery selection process yesterday, it was also the first day that USCIS’s new fee rule went into effect. Additionally, it was the first day that new versions of some of the most common immigration forms such as the I-129 and I-140 took effect. For some of these forms there is no grace period to accept prior editions of the forms, while for others prior editions will be accepted through June 3, 2024. The filing location for many immigration applications and petitions has also changed. CYA attorneys and staff are closing following all these updates and moving pieces. Never a dull moment trying to stay on top of the many substantive and procedural changes in the world of immigration! If you have questions about these or other changes, please reach out to your attorney or schedule a consultation with us.