Episode 84 – H-1B regs in Trump pipeline pre-2020 election

This episode of the BAL Immigration Report is brought to you by BAL, the corporate immigration law firm that powers human achievement through immigration expertise, people-centered client services and innovative technology. Learn more at BAL.com.

In this week’s episode, BAL’s Eileen Lohmann discusses immigration regulations former President Trump had in the pipeline before the 2020 election and what they could mean for a potential second term. Plus, the immigrant impact on Team USA and the latest U.S. and global immigration news.

From Dallas, Texas, I’m Rebecca Sanabria.

Spotlight

The presidential election is just 95 days away.

On Tuesday, Trump’s campaign issued a statement attempting to distance itself from the Heritage Foundation’s Project 2025.

The endeavor includes a book of policy proposals intended to serve as a blueprint for a second Trump administration — including recommendations for employer-sponsored visa regulations.

BAL’s Eileen Lohmann, a senior associate and Government Strategies team member based in its Beltway D.C. office, discusses the corporate immigration policies Trump actually had at the head of the pipeline prior to the 2020 election.

Lohmann: On its way out, the Trump administration was in the process of really trying to overhaul the H-1B program. The administration issued a series of regulations aimed at restricting the use of the H-1B program as part of its implementation of the Buy American, Hire American executive order President Trump issued in April 2017.

That order was really the foundation for the many policies that administration pursued to restrict employment-based immigration programs. I’ll just say it again, employment-based immigration programs. If reelected, we would expect many of these concepts to come back into play.

The first regulation was the Department of Labor’s wage rule in October 2020, which took effect for a period of time as an interim final rule and then was later blocked in court. That rule significantly increased wage obligations under key programs, including the H-1B and PERM programs, and required employers to adapt very quickly since there was no notice of the change. This was issued as an interim final rule effective immediately.

And the Trump administration reissued a final rule just before leaving office on Jan. 14, 2021, and the Biden administration then later delayed its effective date and issued a request for input to gather more information from the public before figuring out how it would approach the issue. A court then later vacated that final Trump-era regulation.

Restarting that rulemaking process was on the Biden administration’s agenda for some time but then dropped down to the long-term agenda, and it’s currently not on either the short-term or the long-term agenda. So, under a second Trump administration, we likely would not see the exact same rule they issued previously because it was vacated in court, but we would certainly expect a second Trump administration to resume efforts to increase wage obligations under those programs and to increase them by a significant margin, like they tried to before.

The second rule, which came out the exact same day as the DOL wage rule in October 2020, was the H-1B strengthening rule. It was also an interim final rule, but it had a delayed effective date. So, there wasn’t that, you know, chaos that resulted from the DOL rule immediately taking effect. And this rule was also blocked in court, so it never did take effect.

The Trump administration tried to issue a final rule. They actually posted the text of a final rule the week before President Biden’s inauguration, but they basically missed the deadline for issuing it before President Biden took office. That rule would have significantly narrowed eligibility for the H-1B classification, for example, by providing that a degree must always be required for a position to qualify as a specialty occupation. It also would have heightened evidentiary requirements for petitions involving third-party placements and shortened the validity period that could be granted in those cases where there’s third-party placement.

That rule was never finalized, and the Biden administration has been taking its own approach to reforming the H-1B category through the H-1B modernization rule, which is still currently at the proposed rule stage.

The third rule was the H-1B lottery prioritization rule. This one was proposed a month later in November 2020 and finalized in January 2021. The rule never took effect because the Biden administration delayed it, and then ultimately did not take up that issue. The rule would have directed USCIS to select from the pool of H-1B registrations in order of the wage level the employer listed, starting with the highest level, wage level four. Ultimately, the biggest impact of that rule would have been on international students who are newly graduating and more likely to be hired into entry-level positions that offer a wage level one or two. That system, as proposed, would essentially eliminate eligibility for level one positions and many level two positions.

That would have been a major reshaping of the H-1B lottery process. The Biden administration did delay that effective date, and that rule was vacated in court as well in September 2021.

Lohmann addresses the challenges employers faced during the last administration change and what could quickly transpire during a transition to a potential second Trump administration.

This time between the administrations was really, it was very uncertain for employers because when Biden first took office, it wasn’t clear if any of those rules were going to be in place for that cap season that year.

A change in administration is always a challenging time. And especially in immigration, when so much policy is made through the executive branch, you have the outgoing administration trying to finish up their agenda and what they were trying to move forward with at the end of their term. And so, there are usually in-flight policies that the next administration has to figure out what they’re going to do with. There can be very dramatic swings in policy because of that executive branch focus.

Another policy that the Trump administration implemented as part of the Buy American, Hire American executive order — in October 2017, fairly early on in the term, the Trump administration rescinded the longstanding USCIS policy to generally defer to a prior approval in an extension case involving the same parties and facts. USCIS adjudicators began reviewing those cases as if they were completely new petitions, and as a result, began issuing unexpected requests for evidence and denials at higher rates than we had ever seen.

That uncertainty in adjudications led to a lot of confusion and anxiety among foreign national employees, and of course, challenges and business disruptions for their employers. The Biden administration reinstated that deference policy in April 2021, pretty soon after taking office. And as part of the H-1B modernization proposal, which is now moving through the regulatory process, the Biden administration moved to make that policy permanent through a regulation. It’s currently only a policy memo — so if it stays that way, and we don’t see the policy codified, a second Trump administration would be able to very quickly rescind that policy again and create that same unpredictable, inconsistent adjudications environment.

Lohmann was forthcoming with what employers can expect if Trump wins a second term and what they can do now to prepare.

Given that the Trump administration really pushed to get these rules through prior to leaving office, we know the H-1B program would continue to be a top target for a second Trump administration. There’s a high likelihood that we would see a second Trump administration pursue similar restrictions on the H-1B program.

There are times when you might hear Trump as a candidate saying things that don’t quite match up with the campaign platform, or what his administration actually did during the first term. And I think it’s important to not lose sight of the first Trump administration’s thinking on these issues and what they were working towards at the end of the first term. In terms of preparing during this uncertain time when we don’t know the outcome of the election, it’s always a good idea to work with your immigration counsel to try to file petitions and extensions under current policies to the extent you can.

Visit BAL’s Election Resource Center for more insights and resources to prepare your immigration program for any election outcome at BAL.com.

Paris 2024 Olympics focus

We continue our Paris 2024 Olympics focus through an immigration lens with highlights from a recent report published by George Mason University’s Institute for Immigration Research.

The report detailed just how diverse the nearly 600 athletes who make up Team USA are: approximately 3.7% are foreign-born from 16 different countries.

Of those born abroad, 32% came from European countries, 21% were originally from African countries and another 21% were born in Asian countries. The remaining 26% were born in countries from the Americas, Caribbean and Oceania.

The incredible impact of immigrants on Team USA cannot be overstated — especially considering that nearly 8% of them are children of immigrant parents or second-generation immigrants.

Just look at the new gold medal winners in women’s team gymnastics and bronze medal winners in men’s team gymnastics. Among the 10 American Olympians representing both teams, six of them have immigrant parents who were born in Belize, China, the Dominican Republic, Haiti, Laos and Poland.

BAL celebrates Team USA’s multicultural triumphs and congratulates all the Paris 2024 Olympic medal winners to date.

Top immigration news

And now, the top immigration news of the week.

U.S. Citizenship and Immigration Services (USCIS) announced that it will conduct a second H-1B registration lottery for the 2025 fiscal year.

USCIS will randomly select from previously submitted registrations and notify those selected through their USCIS online accounts.

Although there will not be a second selection for the advanced degree exemption, those eligible for the master’s cap will be included in the second round of selection for the regular cap.

The agency will announce when it has completed this second process of selections and notifications.

In the United Kingdom, the Home Office continues to send invitations for individuals to switch from their physical immigration documents to an electronic visa, or eVisa.

Officials stated that invitations will continue to be issued in phases before the process opens to all biometric residence permit holders in summer 2024. The government will stop issuing physical immigration documents by 2025.

The Australian government announced that they will no longer provide any new allocations for the business innovation and investment visa, closing the program permanently in July.

The program closure is part of the country’s Migration Strategy, as a new talent and innovation visa is being considered and a new national innovation visa is expected to be available at the end of 2024.

Find all of our news at BAL.com/news. Follow us on X at @BAL_Immigration. And sign up to receive daily immigration updates in your inbox at BAL.com/newsletter.

We’ll be back next week with more insights from the world of corporate immigration.

I’m Rebecca Sanabria. Thanks for listening.

Copyright

The BAL Immigration Report is provided by BAL. Copyright 2024 Berry Appleman & Leiden LLP. All rights reserved. Digital redistribution to the public is permitted only with express written permission of Berry Appleman & Leiden LLP. This report does not constitute legal advice or create an attorney-client relationship. Visit bal.com for more information.