BRITISH-AMERICAN BUSINESS COUNCIL & FRAGOMEN April 2017 - PowerPoint PPT Presentation

BRITISH-AMERICAN BUSINESS COUNCIL & FRAGOMEN April 2017

AGENDA • U.S. Immigration under Trump • Brexit: The EU Perspective • Brexit: The UK Perspective 2

WITH YOU TODAY SCOTT FITZGERALD IAN ROBINSON JONATHAN NAGEL CAROL DOUGHTY Partner Partner Associate & Regional Director Boston, MA London, UK Global Client Services Manager UK Visas & +1 617 574 0416 +44 20 7090 9773 Boston, MA Immigration Americas sfitzgerald@fragomen.com irobinson@fragomen.com +1 857 305 4470 New York, NY jnagel@fragomen.com + 1 212 745 0291 Carol.Doughty@fco.gov.uk 3

• Trump on Immigration U.S.: • Executive Orders + Travel Ban IMMIGRATION • USCIS Memo & Announcement • H-1B Cap Updates UNDER TRUMP • Preparing for Increased Audits and Investigations • Legislation 4

PRESIDENT TRUMP ON IMMIGRATION 1. Protect American jobs 2. Build a wall on the southern border 3. End “catch and release” 4. Zero tolerance for criminal aliens 5. Block funding for sanctuary cities 6. Cancel Obama Administration executive orders that give amnesty, fully enforce all immigration laws 7. Suspend visa issuance in countries where security screening is not deemed adequate 8. Require countries to accept their own citizen-deportees 9. Fully implement biometric entry-exit system 10. Mandate the use of E-Verify 11. Reform legal immigration to keep it within “historical norms,” admit foreign nationals most likely to be economically self-sufficient 5

PRESIDENT TRUMP EXECUTIVE ORDERS • Executive Order (Apr. 18, 2017) • Reviewing H-1B program to protect US “Buy American, Hire American” workers • Increasing enforcement against visa abusers • Executive Order 13767 (Jan. 25, 2017) “Border Security and Immigration • Focuses on border security and Enforcement Improvements” immigration enforcement 6

PRESIDENT TRUMP EXECUTIVE ORDERS • Executive Order 13768 (Jan. 25, 2017) “Enhancing Public Safety in the • Focuses on interior enforcement, including Interior of the United States” sanctuary cities and detainers “Protecting the Nation from Foreign • Executive Order 13769 (Jan. 27, 2017) Terrorist Entry into the United • Imposed a travel ban on citizens of States” (a.k.a. Travel Ban I) seven “countries of concern” 7

PRESIDENT TRUMP EXECUTIVE ORDERS DRAFT Executive Order on Work Visa Programs • Initially dated Jan. 23, 2017 • DHS instructed to propose regulations to: • Reform practical training programs for foreign students • Clarify acceptable business visitor activities in B1 status • Reform the treaty investor visa category for foreign entrepreneurs • Change the scope of parole authority • Restore the integrity of other employment-based nonimmigrant programs such as H-1B and L-1 to protect U.S. and foreign workers from abuse • DHS Instructed to study all other programs that allow foreign nationals to work in U.S. recommend other proposed changes in the national interest • Consider ways to make H-1B allocation more efficient • DOL report on “injury to U.S. workers” from work visa programs • Expand E-Verify • Expand FDNS site visits • Establish Immigration Commission 8

PRESIDENT TRUMP EXECUTIVE ORDERS Travel Ban: Who is subject to the revised travel ban? • New EO temporarily suspends the entry into the United States of nationals of: Iran, Libya, Somalia, Sudan, Syria and Yemen • Some nationals of the six countries may qualify for an exemption, or may apply for a waiver • Iraq removed from list • Ban could be extended, and additional countries could be added • Temporarily suspends the admission of refugees from any country (including Syria) for 120 days 9

PRESIDENT TRUMP EXECUTIVE ORDERS Travel ban: What waivers are available? • DHS and DOS can grant discretionary waivers of the ban • Waiver applicants must show that: • A denial of admission would cause undue hardship; • Their admission is in the national interest of the U.S.; and • Their admission would not pose a threat to national security. 10

PRESIDENT TRUMP EXECUTIVE ACTIONS DHS Court Filing – Save Jobs USA v. DHS – April 3, 2017 • Lawsuit brought by group of IT workers asserting that H-4 EAD rule subjects U.S. workers to undue competition from foreign workers • DHS filing this month asks Court to hold the case in abeyance another 6 months while it conducts a review of the H-4 EAD program • No immediate impact on the H-4 EAD program, which remains open to applications, but could lead to regulatory announcement rescinding the benefit 11

USCIS MEMO & ANNOUNCEMENT • USCIS Memo re: Computer Programmers as a Specialty Occupation – March 31, 2017 • No longer presumption of bachelors degree requirement • USCIS Announcement – “Combating Fraud and Abuse in the H-1B Visa Program” –April 3, 2017 • Public reports of suspected H-1B fraud or abuse encouraged, to new USCIS E-mail “Tip Line” • Complaints of LCA violation encouraged to DOL Wage and Hour Division • Expanded FDNS site visits with certain corporate targets 12

H-1B CAP UPDATES • Filing period for new H-1B petitions opened April 3 rd for upcoming fiscal year. Petitions were accepted for 5 business days. • H-1B slots available for U.S. Advanced Degree holders: 20,000 • H-1B slots available for all others: 65,000 • USCIS confirmed on April 7th enough petitions received to meet the standard H-1B cap and the advanced degree quota • For FY 2018, 199,000 petitions were received. For FY 2017, record 236,000 petitions received for 85,000 slots. Selection rate was approximately 40-50% for U.S. Master’s degree, 25-30% for all others. 13

H-1B CAP UPDATES • Receipts for selected candidates typically received between April and June • Premium processing not available this year so no early notification of selection • If case is not selected for processing, petition typically returned to Fragomen between late May and July 14

H-1B CAP UPDATES Premium processing suspension: • Premium process for H-1Bs suspended as of April 3, 2017 for anticipated period of 6 months • Current USCIS H-1B processing time 6+ months • Filing strategies for H-1Bs: • Ensure all H-1B extensions filed at or close to 6 month mark before expiry • Change of employer hires can join new employer upon filing of H-1B petition or upon issuance of receipt but evaluate for red flags (maintenance of status issues, ensure current employer’s petition has already been approved and is not pending with USCIS) • When extension remains pending but H-1B has expired, employee remains work authorized for 240 days but can’t travel internationally and may encounter license renewal issues depending on state 15

PREPARING FOR INCREASED AUDITS & INVESTIGATIONS Government Actions • USCIS initiative to “Detect H-1B Visa Fraud and Abuse” • FDNS site-visits • I-9 workplace audits 16

PREPARING FOR INCREASED AUDITS & INVESTIGATIONS USCIS Initiative to “Detect H-1B Visa Fraud and Abuse” • Government Action: On April 3, 2017, USCIS announced new measures to combat fraud in employment-based immigration programs: • The agency will expand and target H-1B site visits for case types where fraud and abuse “may be more likely to occur” • USCIS established an e-mail address: [REPORTH1BABUSE@USCIS.DHS.GOV] to which U.S. workers and H- 1B workers can submit tips, alleged violations, and other relevant information about potential H-1B fraud or abuse • USCIS wishes to promote transparency about how the H-1B program is being used, and plans to publish a report on H-1B petitions submitted for the FY2018 cap season that will be searchable for the public 17

PREPARING FOR INCREASED AUDITS & INVESTIGATIONS FDNS Worksite Visits • Government Action: USCIS has conducted random administrative site visits since 2009. USCIS’ April 3rd announcement simply outlines a more targeted approach: • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); • Cases where USCIS cannot validate the employer’s basic business information through commercially available data; and • Employers petitioning for H-1B workers who work off-site at another company or organization’s location. 18

PREPARING FOR INCREASED AUDITS & INVESTIGATIONS FDNS Worksite Visits • FDNS will also continue to make unannounced and random visits to all H-1B employers across the country, both before and after any petition is adjudicated • Based on FDNS findings, USCIS may issue Notices of Intent to Revoke (NOIRs) or Notices of Intent to Deny (NOIDs) 19

PREPARING FOR INCREASED AUDITS & INVESTIGATIONS FDNS Worksite Visits • Employer Tips: • Prepare employees, managers (and clients, where H-1B worker is at third-party worksite) for unscheduled visits • Conduct “spot audits” to ensure employees’ duties, wages and work location matches that described in the I-129 • Prepare and disseminate protocol to lobby receptionists and security professionals • Help set a tone at the employer of preparation, cooperation and confidence 20