2020 is Not Over Yet – End of Year Trends in Business Immigration

2020 has been a year like no other. There have been and will continue to be unforeseen advances and setbacks within the business community. But with one business quarter left before we can ring in a new year, there are still some important considerations in the realm of corporate immigration to be aware of before we can say goodbye to the year that was 2020.

Change Will Remain “The New Norm”

For the past several years (and at a hyper speed pace since the COVID-19 pandemic arrived in the U.S.), employers have had to remain more adaptable and flexible than ever before given the constantly changing landscape of employer-sponsored immigration. The current administration has continued to rely on attention-grabbing decrees, orders, Twitter posts, etc. to try to effect significant changes in U.S. immigration policy. All of this usurps the enactment of both new legislation on legal immigration and the formal rulemaking procedures that are required in order to revise regulations. Most significantly, the current administration is using Executive Orders (EOs) as their preferred manner of changing immigration policies. The legality of the current EOs remains to be seen. Many if not most of the EOs’ effects have been either delayed through injunction or overturned completely by the judiciary. Nevertheless, the disruption that the EOs have had and can continue to cause on a short- to medium-term basis cannot be understated.

With the upcoming presidential election, in conjunction with the COVID-19 pandemic, it is likely that the administration will continue to use these informal mechanisms to attempt to change legal immigration rules and procedures and complicate legal immigration into the U.S. Throughout the remainder of 2020, companies should continue to manage their immigration policies with an eye towards unpredictability and remain flexible in their approach to new circumstances and changes beyond their control.

Continued International Travel Restrictions

Whether through specific government actions like closing borders and imposing travel bans, or due to company policies and individual preferences, international travel will continue to remain at modern all-time lows because of COVID-19. It is anticipated that the current travel bans throughout the world will remain for the foreseeable future, with new and changing restrictions being put in place to address new and evolving “hot spots” around the world.

For at least the near-term, the days of business travelers being able to rely on international travel with little or no planning or notice are over. International travelers will need to continuously monitor the various travel restrictions, quarantine requirements, and entry protocols before travel. Even as governmental travel restrictions are eased, global mobility policies are unlikely to revert to the days of expensive and time-consuming international business travel.

Impact of Remote Work Locations on Foreign National Employees

Companies have invested significantly to increase remote working capabilities since the outset of the pandemic and will continue to rely on these new practices through the implementation of more widespread work from home (WFH) policies and procedures. Many companies have realized a modest appreciation of the effectiveness of remote working collaboration. Even once the pandemic is behind us and life is back to “normal”, it is now clear that the practice is here to stay and that WFH policies will continue to become more widely implemented and standardized.

The ongoing impact of WFH practices and policies will need to be continually evaluated as it relates to a company’s foreign national population. At the outset of the pandemic, and due to the new and unique public health concerns, U.S. immigration authorities were somewhat lenient in allowing accommodations for WFH situations. Authorities were granting temporary provisions to allow for remote I-9 employment verifications. Additionally, there was flexibility in work permit amendment requirements for those working remotely, as well as with the automatic extension of certain immigration deadlines. However, as WFH practices become more commonplace, it is anticipated that the initial accommodations immigration authorities have made on this front will be rolled back. As such, more formal requirements, notifications, and procedures will be put in place to allow foreign nationals to WFH. Companies will need to continue to evaluate their internal WFH policies as they apply to their foreign national population and monitor any immigration policy changes that may require proactive steps to ensure ongoing legal compliance with new WFH provisions.

Economic Decline and Increase in Government Scrutiny

At this time, the impact of any potential economic downturn on employment-based immigration sponsorship is difficult to predict; however, it is anticipated that the impact will be industry-specific and geographically distinct. Nonetheless, in any period of economic downturn, businesses can expect an across-the-board increase in government scrutiny on employer-sponsored immigration filings. These generally materialize in increased rates of Requests for Evidence, PERM Audits, and site visits/audits, as well as increased adjudication times. Companies should be prepared to remain proactive and detail oriented with all immigration filings and ongoing compliance requirements to ensure the highest level of organizational compliance in the face of heightened scrutiny.

There are only three months left until 2021, and yet there is still a lot of uncertainty for the rest of 2020. As the world continues to deal with COVID-19, more WFH initiatives, and an interceding U.S. presidential election, 2020 still has a lot to unveil. The remainder of the year will prove to be eventful, and companies will need to remain flexible in adapting to an ever-changing immigration and travel landscape.