Navigating Immigration in Uncertain Times

Regardless of where you stand on the political spectrum, 2017 was a rough year for U.S. companies utilizing sponsorship of employment visas as part of their talent strategy.

Since the start of the Trump administration, numerous executive actions, policy changes, and political rhetoric have created an environment of uncertainty and anxiety for those engaged in sponsorship of work visas and, of course, for the foreign workers and immigrants caught up in the process. We won’t detail all of these steps here, but a good starting place was the “Buy American and Hire American” executive order in April 2017. This order’s stated purpose is threefold, to:

  • Create higher wages and employment rates for U.S. workers.
  • Protect economic interests.
  • Rigorously enforce and administer the laws governing entry of foreign workers into the U.S

This order has prompted numerous government agencies to respond, with significant impact on policies. For example, in April 2017 the U.S. Department of Labor announced plans to “protect Americans from H1-B program discrimination,” and U.S. Citizenship and Immigration Services (USCIS) announced it would no longer stand behind prior adjudications in NIV (nonimmigrant visa) cases; it has also announced further measures to “reduce fraud and abuse.”

These policy changes have been bracketed by lawsuits surrounding the temporary bans on entry of persons of certain nationalities into the U.S., the suspension of the Obama administration executive order around DACA beneficiaries (Deferred Action for Childhood Arrivals, or “dreamers”), and numerous and significant proposed changes to U.S. immigration law, including ending the H1-B lottery system. Specific impacts have included increased FDNS (Fraud Detection and National Security) site visits—and ICE (Immigration and Customs Enforcement) raids, much heavier government scrutiny of H-1B occupations, and a dramatic increase (more than 40 percent) in RFEs (requests for evidence). Even in the green card arena, there have been lengthier processing times and backlogs.

One item of particular note to startup-focused Silicon Valley companies was the Trump administration’s attempt to delay the Obama-era International Entrepreneur Rule. The rule, which was set to start in July 2017, allows founders of certain startups to enter the U.S. to launch operations. The visa was designed to spur the U.S. economy through innovation and job creation. This special rule allows DHS (the Department of Homeland Security) to use its parole authority to grant a period of stay for special entrepreneurs who might not otherwise qualify for other visas (e.g., the H1-B). The National Venture Capital Association (NVCA) fought the administration in court and succeeded in overturning the delay. The court decision was seen as a big win for foreign entrepreneurs interested in bringing business into the U.S., but because the administration’s action was revoked by courts essentially on procedural grounds—i.e., the failure to give notice and allow public comment—it now begs the question: How long before this is pushed through again? Reinstatement of the International Entrepreneur Rule is not a commitment by the administration to a more startup-friendly immigration approach, and therefore it’s not something to bank on.

All of these actions add up to a climate of uncertainty for business. “Although there are strategies companies can adopt to overcome many of these challenges, the overall effect has been a great deal of anxiousness and concern by employees who require sponsorship and the employers dependent on them,” says Sameer Khedekar, managing partner of Pearl Law Group. “Many companies are struggling with several questions, including ‘What is coming next, what strategies should be adopted to plan for future changes, and what alternatives are there?’”

Pearl Law Group, with the support of the BAMM organization (Bay Area Mobility Management), recently conducted a survey to evaluate corporate attitudes on the topic. The survey garnered responses from 52 San Francisco Bay Area employers, most of which are employers in the tech space, for which the area is well-known.  Nearly 70 percent of the firms indicated that recent immigration changes were indeed having an impact on strategic planning for talent.  Some of the impacts included the general anxiety and uncertainty around the business and planning, acceleration of the PERM (Program Electronic Review Management) processes, and perhaps most tellingly, a general reluctance or concern about hiring those requiring sponsorship.

Read the full April Mobility article more information and strategies.

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