COVID-19, Trump, and Employment Immigration

2020 has been a year like no other for employers and their lawyers 

By Robert P. Webber and Candelario Arredondo

0820-Covid-Passport-TrumpThe July 4 weekend is traditionally viewed as the middle of summer and the middle of the calendar year. This year, though, looking back to January is like looking back on another world. It’s been a year of unprecedented challenges, and those challenges have extended to employers and their lawyers trying to navigate U.S. immigration law matters. So much has occurred, both in response to the pandemic and as a result of the Trump Administration’s strongly held policy positions on limiting immigration, that it would be nearly impossible to provide a comprehensive review of the many changes in immigration law and policy so far in 2020. This article focuses on employment-based immigration—issues related to the ability of U.S. employers to hire and retain foreign national workers. We seek to highlight some of the major changes and forecast where things may go from here.

Covid-19 related changes

Somewhat surprisingly, many of the changes in immigration law related specifically to covid-19 provided additional flexibility in view of the complex new realities thrust upon the U.S. workforce (both employers and employees) by the pandemic and the related shutdown and stay-at-home orders. While there were significant negative changes in the spring, like closing U.S. consulates worldwide (something that continues to a large extent now), shuttering U.S. Immigration Services offices nationwide, and closing the U.S./Canada and U.S./Mexico borders for non-essential travel, there were also developments that were generally considered positive and demonstrated the Trump Administration’s understanding of the temporary new reality. Among the positive developments:

  • flexibility in I-9 documentation compliance;
  • authorization to use scanned signatures for petition and application filings;
  • use of ‘digital’ approval notices for PERM labor certification applications;
  • flexibility on deadlines to respond to requests for evidence; and
  • waiver of biometrics (fingerprints) and in some instances waiver of interviews for cases where such things were previously required.

On the specific issue of I-9 documentation compliance flexibility, in March the Immigration and Customs Enforcement (ICE) agency announced flexibility for employers inspecting documents for I-9 compliance. That flexibility was extended all the way into mid-July and allows for the remote inspection of identity and employment eligibility documents required for new hire I-9s. There are strings attached, but this accommodation works well for businesses operating remotely. The altered I-9 rules also provided flexibility in responding to E-Verify tentative non-confirmations.

Policy-related changes

Despite some positive flexibility by the Trump administration, as mentioned above, the year has mainly been marked by negative policy developments consistent with the president’s restrictive attitude toward immigration. Early in the year, the major developments in employment-based immigration involved the new electronic registration process for the H-1B cap lottery and the rollout of Form I-944 for immigrants seeking to establish that they will not become public charges.

The H-1B cap electronic registration process was not without problems, but overall it seems to have functioned and served its purpose—or, perhaps more accurately, its flaws were overshadowed by the all-encompassing concerns for the pandemic this spring throughout the United States. H-1B cap cases are in process now and employers should be hearing more in the coming weeks on whether the administration has once again tightened adjudication standards.

The new Form I-944 did face a court challenge, but the Trump administration has prevailed (so far) and Form I-944 now must be submitted with all I-485 adjustment of status applications. Form I-944 is intense and burdensome. (Some might say this is a feature, not a bug.) Form I-944 is an 18-page form with 15 pages of detailed instructions. The form covers a wide range of issues, seeking information on an immigrant’s income, assets, debts, credit score/credit rating, history of public benefits (if any), health insurance, education, language ability, and skills, among other things. This new form has been required since February and as of July 4, very few (if any) I-485 applications supported by Form I-944 have actually been adjudicated. The second half of this year will tell us much more about how USCIS will interpret Form I-944.

The most recent policy development, as of early July, is the June 22 White House proclamation limiting work visas. The proclamation implicates nearly all new H-1B, H-2B, J-1, and L-1 visas through the end of this calendar year. The Trump administration’s theory is that with the U.S. unemployment rate so high, foreign workers should not be admitted into the country to compete with the domestic workforce. While there are some narrow (and ill-defined) exceptions to the June 22 proclamation, it will prove to be a major challenge for employers in a wide range of industries for the rest of the year.

The role of courts

Plaintiffs challenging the Trump administration have been active in the courts this year. Perhaps the most high profile U.S. immigration law case potentially involving employers was the DACA case, DHS v. Regents of the University of California, in which the U.S. Supreme Court ruled 5-4 that DACA should remain in place as the Trump administration failed to comply with the appropriate rulemaking to end the DACA program.

In the more narrow area of H-1Bs, a class action lawsuit, ITServe Alliance v. Cissna, was settled favorably for the plaintiffs. The settlement led to an important USCIS policy memorandum on June 17 that creates more certainty for H-1B petitioners (employers) on the issues of third party placement and employer/employee relationships. Specifically, the June 17 memorandum rescinded USCIS policy guidance on third party placements going back to 2010 and also rescinded a contracts and itinerary requirement created by USCIS in February 2018.

While the ITServe Alliance class action provided positive visibility on some issues, H-1B employers still face challenges on the administration’s novel interpretations of what constitutes a “specialty occupation,” including the aggressive use of the U.S. Department of Labor’s Occupational Outlook Handbook (OOH) to designate some positions as not eligible for H-1B classification. Individual, single-plaintiff lawsuits have made progress and pushed back on the “specialty occupation” issue and there is one class action pending for market research analysts, but it remains to be seen whether USCIS will back down from its recent approach to what constitutes a specialty occupation.

What may be coming

Looking ahead, there are still three months until the election and five months until a new president is sworn in. There is no indication that President Trump’s administration will let up on its policy agenda to restrict immigration.

Our predictions for the remainder of 2020 include:

  • In the area of temporary work visas, including H-1B and L-1 visas, because of the June 22 proclamation limiting visa stamping at U.S. consulates, we expect more challenges from USCIS in processing extension petitions for people already in the United States, including many more RFEs (requests for evidence). This will be particularly relevant, and frustrating, to large employers that would traditionally rely on blanket L petition processing directly at U.S. consulates abroad.
  • There will likely be more interest in O-1 visas, since O-1 visas are not subject to the June 22 proclamation limiting work visas. These visas are available to people who can demonstrate they are extraordinary in their field—a high standard, to be sure.
  • In the area of PERM labor certification processing, it is definitely possible that the U.S. Department of Labor will institute new and burdensome requirements for testing the local labor market, including possible supervised recruitment, to obtain PERM approvals.
  • Because of budget challenges at USCIS, we expect to see slow processing across the board. This will create complications for people who need receipts and approvals to extend driver’s licenses or to be eligible to travel or seek new employment. Delays in processing receipts, petitions, and applications have already been occurring for months but as of early July, USCIS plans a major furlough of thousands of employees nationwide in early August that will clearly further exacerbate the existing delays and backlogs.

While the year so far has been unprecedented and challenging, there is sadly no reason to believe that we are done. More change in immigration law is likely coming. Employers and their lawyers will need to stay attentive to the changes and plan ahead. Filing renewals and extensions early for existing employees and using premium processing whenever available will hopefully minimize distress. And increasingly, positioning cases for litigation may be an important aspect of responsible immigration practice. 

ROBERT P. WEBBER is a partner at Dorsey & Whitney LLP. Bob has 20+ years of experience handling employment-based immigration matters, including H-1B, TN, L-1, O-1, and other non-immigrant visa categories, as well as PERM labor certification and PERM-exempt processing for both large and small employers in a variety of industries.

CANDELARIO ARREDONDO, a senior attorney at Dorsey & Whitney LLP, advises organizations and individuals throughout the United States and at U.S. consulates abroad on U.S. immigration law matters with a particular focus on efficient and successful processing of immigrant and non-immigrant visas, adjustment of status, and naturalization matters.