IMMIGRATION
LOOKING AHEAD TO 2025
Uncertainty After Chevron Overturned The Supreme Court’s landmark ruling in June that gives employers a powerful tool to fight back against regulatory overreach will have a broad impact on just about every area of workplace law. While the end of “ Chevron deference” is largely viewed as a win for employers, we expect to see two sides to the immigration impact on employers. On the one side, employers will have more tools to challenge federal agency regulations that make it harder to hire and retain foreign national employees. On the flipside, you may see helpful regulations tied up in litigation as well. We encourage you to take these five steps to remain agile during this period of uncertainty. Mandatory E-Verify+ As the new E-Verify+ moves from a trial to full implementation, we expect to see the federal government take steps to make its use mandatory. Of course, creating new HR solutions that properly synch with the new government portal may prove to be quite difficult. So, we recommend that you stay updated on developments in this area as E-Verify+ progresses through the trial stage and is ultimately launched full scale. More Scrutiny of Work Authorization and Visa Programs Immigration reform was a centerpiece of the first Trump administration, and we anticipate more of the same during round two. We expect the new administration to set limits on work authorizations for F-1 students on OPT/STEM OPT and H-4 spouses, as well as humanitarian programs like Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS). We also expect to see policy changes designed to limit H-1B, E-3, L-1, and TN work visas and increased scrutiny of work visa petitions through Requests for Evidence. These policy changes would have a significant impact on the workforce, and we recommend that you reach out to your Fisher Phillips attorney to create an action plan. Heightened Immigration Enforcement President-elect Trump also promised to focus on immigration enforcement, and his announcement that former ICE Acting Director Tom Homan would serve as the new “border czar” is yet another strong reminder that employers should anticipate major changes when the new administration begins in January. With Homan set to lead an aggressive enforcement strategy, employers should take concrete steps to safeguard their operations and be prepared to handle potential ICE audits and raids. Be familiar with key areas of focus to ensure your business is ready.
2024 PREDICTIONS RECAP
E-Verify+ Aims to Streamline the I-9 Process Initially known as E-Verify NextGen, the new E-Verify+ trial was launched in May. We accurately predicted that the federal government would launch the new system in 2024 with the goal of modernizing the I-9 and employment verification process. DHS and SSA authorities have sought to reduce the burden on employers by combining aspects of the I-9 and E-Verify systems into a single, united process. In addition, the responsibility for accurate data input will be shifted to employees. Stay tuned for more updates in 2025. Revised H-1B Visa Process Quickly Finalized Last year, federal immigration authorities proposed long-awaited revisions to the H-1B visa process intended to tighten the annual lottery system, reduce fraudulent duplicate filings, and address issues that have been a source of frustration for employers and employees alike. We correctly predicted that the resulting regulations would be quickly finalized and implemented in early 2024. These revisions resulted in fewer fraudulent filings and a second-round lottery selection.
MORE OF 2024 IN REVIEW
Increased Filing Fees The cost for expedited service rose in 2024, meaning employers had to adjust their budgets to manage their foreign national workforces. For example, USCIS increased the filing fee for those requesting Premium Processing as of February 26. The Premium Processing program has been a welcome addition in recent years, allowing a petitioner or applicant to pay an additional government filing fee to request that USCIS adjudicate a filing. This is a very useful option, as “normal” case processing times are extremely lengthy.
Return of Stateside H-1B and L-1 Visa Renewals
HOW’D WE DO ON OUR PREDICTIONS?
We told you that stateside H-1B visas were on their way back – and we were right. After an almost 20-year absence, federal officials brought back the stateside issuance of nonimmigrant visas through a pilot program, which allowed H-1B and L-1 workers the option of renewing their visas without leaving the U.S. This significant development provided welcome relief to many foreign nationals and played a strategic role in workforce planning – but there were some key limitations. Though the initial pilot program was limited in scope and duration, the Department of State is actively pursuing a broader, long-term program to provide domestic visa renewals for not only H-1B specialty occupation workers but also their dependents and workers in additional categories, including treaty investors.
We got the predictions RIGHT
Jocelyn Campanaro
David S. Jones
Denver Partner and Co-Chair, Immigration Practice Group jcampanaro@fisherphillips.com
Memphis Regional Managing Partner and Co-Chair, Immigration Practice Group djones@fisherphillips.com
Shanon R. Stevenson
Atlanta Partner and Co-Chair, Immigration Practice Group sstevenson@fisherphillips.com
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