January 9

Top 9 U.S. Immigration Trends to Watch in 2020

The Trump administration is most likely to continue eroding the foundation of immigration that America was built on as more restrictive policies are introduced and existing ones locked in. Below are top trends to watch for in 2020.

1. Further Restrictions to the employment-based H-1B and L-1 Visa Programs

To date, the Trump administration has taken no positive action taken toward the H-1B visa program. The attacks on legal high-skill immigration are expected to last for the duration of Trump’s presidency. USCIS will continue to view highly skilled foreign-born workers as threats to the U.S. workforce instead of assets.

Many H-1B visa holders are reluctant to change employers due to the spike in denials, RFEs, and increased processing times. According to USCIS data, from FY 2017 through FY 2018, the H-1B visa petition approval rate dropped from 92.6% to 84.5%. The overall decline has continued into FY 2019, with an approval rate of 79.4%.

While OnlineVisas had a 95% success rate for H-1B cases in FY 2018, we can expect high denial rates to continue and perhaps even increase. The USCIS denies petitions on the grounds of the job not meeting the criteria of a specialty occupation or that there is not a qualifying employer-employee relationship

On top of the high denial rate, H-1B visas can take up to 10 months to process. When changing jobs, the H-1B visa holder runs the risk of becoming out of status while waiting on a decision from USCIS. The fear of denial and losing status has caused many H-1B visa holders to become stagnant in their careers.

Furthermore, USCIS changed the selection order of H-1B visas and will implement digital pre-registration for the H-1B 2021 cap season. Over time, the reversed selection order may cripple U.S. businesses’ ability to meet their need for highly qualified workers at all levels since eligible cap-exempt candidates would fill the cap-subject pool. The new H-1B lottery process provides a possibility for USCIS to avoid filling the available 85,000 visa slots.

USCIS also plans to publish a rule to “revise the definition of a specialty occupation . . . and revise the definition of employment and the employer-employee relationship.” The rule is likely to be an attempt to make the current restrictive policies more permanent.

Further, USCIS is projected to introduce new regulations to “revise the definition of specialized knowledge, to clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders.” Getting an L-1 visa approved has become significantly more challenging, and more regulations would create greater uncertainty for international companies.

2. More Restrictions for International Students

International students seeking employment after graduation from a U.S. university increasingly experience difficulties as USCIS continues to reinterpret and redefine policy language. 

The Trump administration plans to target Optional Practical Training (OPT) and establish a maximum period of authorized stay for F-1 and other non-immigrant student visas. Currently, F-1 students are admitted for a “duration of status” and allowed to remain in the country for the duration of their full course of study, including any period designated for practical training. 

According to data published by the Institute of International Education (IIE), new enrollment of international students dropped from 300,743 in the 2015-2016 academic year to 269,383 in the 2018-2019 academic year (10% drop nationwide). The new rule would introduce more obstacles for international students. The U.S. higher education system is beginning to feel the effects of frequent immigration policy changes as international student enrollment shrinks.

3. H-4 EAD

The highly contested H-4 EAD work ban, affecting the spouses of H-1B visa holders, is expected to be published in March 2020. The rule would rescind the February 2015 memo that extended eligibility for employment authorization documents (EADs) for H-4 dependent spouses of H-1B visa workers. If the proposed rule is published, it would be delayed by comments and litigation seeking an injunction. Should the ban go into effect, an estimated 100,000 legal immigrants will no longer be authorized to work in the United States.

4. Public Charge Rule to Limit Immigration

A far-reaching presidential proclamation was issued in October 2019 to bar new immigrants from entering the United States without health insurance. According to the Migration Policy Institute (MPI), “this policy has the potential to block fully two-thirds of those who apply for legal permanent residence from abroad.” A similar rule, Inadmissibility on Public Charge Grounds, would also curb legal immigration should it go into effect. The proposed rule is an attempt by the Department of Homeland Security to broaden the definition of who is considered a public charge.

Judges have temporarily blocked both of the measures, but if either is cleared, it could be the Trump administration’s most damaging immigration measure. Permanently reducing the flow of legal immigrants into the U.S. would negatively affect long-term economic growth.

5. EB-5 and Other Fees

In November 2019, USCIS finalized a rule that substantially raised the minimum investment amount for an EB-5 foreign investor. More EB-5 regulation that is directed toward the processes and administration of the EB-5 Immigrant Investor Regional Center Program is anticipated for 2020. Regulatory changes are aimed to “increase monitoring and oversight . . . as well as encourage investment in rural areas.”

DHS has proposed a $990 fee increase for green card applications and also wants to adjust the cost of citizenship applications from $725 to $1,170. Additionally, DHS proposed a fee for asylum applications for the first time ever. Finally, DHS is moving to eliminate some fee waivers for low-income immigrants. Increased fees will undoubtedly make the immigration process even more difficult for the applicants. 

6. Worksite Investigations Show No Sign of Slowing

According to the Wall Street Journal, in FY 2019, ICE opened 6812 worksite investigations compared to 1691 in FY17.  Worksite investigations have increased by 300% since 2017, and we can expect this trend to continue in 2020.

7. DACA (Deferred Action for Childhood Arrivals)

Currently, up to 700,000 individuals who came to the U.S.  before the age of 16 receive work authorization and administrative relief from deportation under DACA.  On November 12, 2019, the Trump administration’s move to terminate DACA was challenged in the Supreme Court. Talk of a legislative compromise will likely increase should the Supreme Court rule in favor of the administration. However, an actual deal seems unlikely due to the 2020 presidential election.

8. Asylum and Refugee Policy

Refugee admission levels under the Trump administration have plummeted to historic lows. The U.S. had traditionally accepted more refugees when the global refugee population grew. The number of refugees globally has increased to 70.8 million people, of which the U.S. accepted only 76,200 –  less than 1% of refugees worldwide. For FY 2020, Trump further reduced the resettlement ceiling to 18,000.  Given the current trend, there isn’t any real reason to anticipate an increase in the ceiling cap for FY 2021.

The most notable action taken on asylum so far requires migrants to apply for asylum in Mexico. The administration’s asylum policies toward Central Americans have remained in place as litigation over legality continues. The most significant event on asylum in 2020 would be any court decision that compels the administration to stop the current policy. In 2020, the administration will need to deal with an increase in Mexican asylum seekers fleeing violence in Mexico.

9. The Wall

Trump remains committed to building as much of the U.S.-Mexico border wall as possible before the November 2020 election. We are likely to see more aggressive measures and stepped up land seizures combined with rhetoric from environmental groups and judges.

Putting it all together in 2020

This year we can expect many attempts to finalize more restrictive immigration policies in an effort to prevent asylum seekers from reaching the U.S and deterring foreign-born individuals from studying, working or immigrating legally to the United States of America.

The presidential election of 2020 will be vital in determining the direction of U.S. immigration policy.

About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas

Jon is an Amazon number one best-selling author of H-1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon was also pivotal in the Cherokee Freedmen Supreme Court case.

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