The Impact of Extreme Vetting on Business Immigration in the US

President Trump famously took office with a promise to implement “extreme vetting” of applications for visas to the United States.  This plan first took concrete form just one week after the presidential inauguration, when the White House published its first Executive Order seeking to impose a travel ban against citizens of seven predominantly Muslim countries. Both that Order, and a revised travel ban Executive Order which sought to correct the constitutional infirmities courts found in the first one, continue to be battered by legal challenges and judicial injunctions.

But away from the headlines, the Administration has quietly but relentlessly been implementing extreme vetting of both family-based and employment-based immigration petitions and applications. This blog summarizes just a few of the changes we have seen in how the federal government is handling business visa cases for both temporary (nonimmigrant) and permanent (immigrant) status.

H-1B Processing

The Trump Administration's policies as set out in its Buy American, Hire American Executive Order have translated into a greater scrutiny of H-1B petitions, a higher rate of requests for evidence (RFEs) and longer processing times for employers in nearly all industries. Specific acts of extreme vetting in the H‑1B context include:

• Closer scrutiny of H-1B wages by U.S. Citizenship and Immigration Services (USCIS)

• Increased scrutiny of F-1 students changing status to H-1B by USCIS

• More site visits at companies that employ workers in H-1B status

• Delays in processing visa applications as consular officers are also directed to consider the protection of U.S. workers' wages and employment rates in the adjudication of H-1B visa applications (as well as E, L, O and P visa applications)

According to a recent Reuters news report, the rate of H-1B RFEs from January through August 2017 was up by more than 45% compared to the RFE rate during the same period in 2016. Many of this year’s RFEs have focused on wages, specifically on whether a job with wages that the Department of Labor (DOL) designates as “Level I” is too complex to be considered entry-level, or whether an entry level job can be considered a “specialty occupation” for H-1B purposes. As set out in a USCIS policy memorandum issued in March 2017, computer programming jobs are now subject to special scrutiny on this basis.

L-1B Extensions

Employers have seen a recent increase in site visits after filing extensions for employees in L‑1B status, a visa category available to intracompany transferees with specialized knowledge.  Such visits are occurring especially when the individual holds a job in the information technology industry.

As with H-1B cases, employees whose initial visa petitions were approved without inquiry are, paradoxically, being subjected to extra scrutiny when the employer seeks to extend their stay in the United States. This increased scrutiny continues a trend that began in the Obama Administration, when denials of L-1B petitions reached record highs, especially when the beneficiaries were nationals of India.

Permanent Residence

Beginning October 1, 2017, USCIS plans to require employment-based adjustment of status applicants to attend a personal interview before their permanent residence case can be processed to completion.

The interview requirement is part of the agency's compliance with President Trump's March 6 Executive Order on protection of the United States from terrorist activities—the same order that set out the Administration’s revised travel ban.  The order also directed federal agencies to implement uniform screening and vetting standards for all immigration programs.

Interviews for employment-based adjustment applicants are not new, but USCIS has had a longstanding policy of waiving them for most applicants, recognizing that employer-sponsored green card applicants posed few security risks.

The interview requirement is to be phased in, but USCIS has not yet explained how this will occur. What seems fairly clear—especially given that local offices have not been provided with any additional funding or staff to carry out this mandate—is that the interview requirement is likely to increase significantly the processing times of employment-based applications for adjustment of status.

Conclusion

These are just a few examples of how a policy of “extreme vetting” is changing the landscape for employers who sponsor foreign workers.  Along with a general policy of tougher screening of applicants for visas at U.S. consular posts around the world, these changes mean that employers can no longer consider a standard H-1B petition, for example, to be routine or “business as usual.” But most of the obstacles can be overcome with careful preparation and legal counsel.