As tensions surrounding U.S. immigration system, the border wall and its funding mount, here is a look at what we can expect in 2019.
Further restrictions to the H-1B visa program
To date, the Trump administration has taken no forward-looking actions toward the H-1B visa program. The attacks on legal high-skill immigration are expected to last for the duration of Trump’s presidency. According to Homeland Security Secretary Kirstjen Nielsen’s testimony before the House Judiciary Committee, USCIS will continue to view highly skilled foreign-born workers as threats (instead of assets) to the U.S. workforce.
As a result, many H-1B visa holders are reluctant to changes employers due to the spike in denials and increased processing times. According to the data obtained by the National Foundation for American Policy (NFAP) from USCIS, during the third and fourth quarters of FY 2017 denials for H-1B visa petitions rose from 16 percent to 22 percent. At the same time, the number of RFEs for H-1B visa petitions more than doubled, soaring from 28,711 to 63,184.
While OnlineVisas did not receive any denials during the last cycle, denial rates are expected to grow. The USCIS continues to deny petitions on the grounds that the job does not meet the criteria of a specialty occupation or that there is not a qualifying employer-employee relationship.
Additionally, H-1B visas can take up to ten 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 for FY 2020 (starting in April 2019). The new rule has the potential to cripple U.S. businesses’ ability to meet their need for highly qualified workers at all levels since eligible cap-exempt candidates would very likely fill the cap-subject pool. The new H-1B lottery process opens a possibility for USCIS to avoid filling the 85,000 visa cap fully.
International Students, Training Programs and Unlawful Presence Policy
International students seeking employment after graduation from a U.S. university increasingly experience difficulties as USCIS continues to reinterpret and redefine policy language.
For years, international graduates have been able to work in the United States for a total of up to 24 months under the CPT and OPT programs (+24 months for STEM OPT). The language of the law states explicitly, “A student may be authorized 12 months of practical training, and becomes eligible for another 12 months of practical training when he or she changes to a higher educational level.”
However, it appears that the USCIS has begun deferring and retroactively applying the original language, issued in 1991, that suggests practical training could not last for more than 12 months for both programs combined.
If the student participates in CPT for more than 12 months, they become no longer eligible for OPT. At the same time, USCIS continues to approve 12-month OPT applications, regardless of the CPT length. Yet, when an individual seeks to transition to an H-1B, their participation in practical training programs is counted against them.
The real effects of this practice may be seen in 2019 if the new unlawful presence policy is applied to students who worked more than 12 months under the CPT or OPT. Per policy, post-graduates who participate in CPT or OPT for more than 12 months face accruing unlawful presence from the 366th day of work but could be unaware until they set out to start a career and are denied their H-1B visa.
Another item to look out for in 2019 is a change that would establish a period of authorized stay for F-1 students and other non-immigrant statuses. 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.
DHS proposes to replace the “duration of status” system with “date certain” admissions as it apparently causes confusion and contributes to student visa overstay.
Unpredictable policy changes have already caused foreign national students to lose interest in attending U.S. universities. Admissions of Indian students have decreased by 28% while the number of Chinese students has declined by 24%.
This translates to a loss of approximately 2 billion dollars in tuition to U.S. universities annually. The U.S. higher education system is already beginning to feel the effects of frequent immigration policy changes as international student enrollment shrinks dramatically.
H-4, Public Charge Rule and Workforce Investigations
In regulatory documents, the DHS has stated its intent to rescind the February 2015 rule that extends eligibility for employment authorization documents (EADs) for H-4 dependent spouses of H-1B visa workers. Should work authorizations be revoked for H-4 EADs, 100,000 people would be affected.
A public charge is a term for people who rely primarily on the government for support. The public charge rule is an attempt by the Department of Homeland Security to broaden the definition of who is considered a public charge.
The change in qualifying factors would be expanded to include immigrants who have used one or more of a select number of government programs.
Worksite investigations show no sign of slowing down. In FY 2018 ICE “opened 6,848 worksite investigations compared to 1,691 in FY17” and initiated 4,621 more I-9 audits than in FY 2017. Worksite investigations increased by 300% and this trend can be expected to continue in 2019.
DACA, Dreamers, and TPS
Despite proclamations to end the program, nationwide injunctions issued by U.S. District Courts forced the government to continue accepting DACA participants’ renewal applications, but not new applications. On January 18, 2019, the U.S. Supreme Court did not take any action in determining the fate of DACA.
As such, in 2019 there is potential for legislation providing lawful permanent residence to “Dreamers” (individuals unlawfully brought to the U.S. by their parents as children) to pass in the House of Representatives. However, there is no guarantee that the Senate would agree to a bill without introducing more restrictive measures in an effort to reduce legal immigration.
The announcement to end the TPS designation for six countries may affect 428,258 current TPS recipients and another 310,540 people that applied for TPS between January and March of 2019. However, a temporary halt to the administration’s actions, ordered by a federal judge in October 2018, is still in effect, leaving TPS holders facing an uncertain future as they weigh their options.
The court has until April 2, 2019, to make a final decision. If a decision is not reached, TPS will be extended for the four out of six (Nicaragua, Haiti, El Salvador, Sudan) nations until January 2, 2020.
Immigration Policy and Congressional Oversight
USCIS has been successful in circumventing Congress through “rule-making.” The practice is likely to change or at least come under intense scrutiny with the Democrat majority in the House of Representatives.
Due to new political realities, it can be expected to see special committee hearings regarding the practice of separating children from their parents and the treatment of migrants, especially children, in detention. It is most likely that committee hearing will also be held for DACA (Deferred Action for Childhood Arrivals) and Temporary Protected Status (TPS), as they have become a main bargaining chip in the government spending bill.
The controversial asylum policy and travel ban (and other policy issues surrounding international students), the H-4 and public charge rule, may also be brought before a committee.
Asylum and Refugee Policy
In 2018, in a 5-4 vote, the Supreme Court moved to prevent the asylum ban from being implemented, although the case will continue with litigation in 2019.
The most notable action taken on asylum so far would require immigrants to apply for asylum in Mexico. Many questions remain unanswered as a clearly defined legal process for applying for asylum from Mexico has not been set forth. We can expect lawsuit(s) challenging the legality of this 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. However, for FY 2017 the number of refugees worldwide increased to 19.9 million, of which the U.S. admitted only 54,000 — less than 1% of the 19.9 million refugees worldwide.
In 2018, the annual limit for refugees was set at 45,000, but the U.S. accepted merely 22,491, half of the total number allotted. For FY 2019, the administration once again reduced the resettlement ceiling to 30,000. Given the current trend, the anticipated number of refugees that the U.S. will accept is anticipated to be far lower than the cap.
The Wall
The stand-off over border wall funding ended in a partial government shutdown after the House and Senate failed to agree upon a spending bill for the Department of Homeland Security. We will see the outcome in 2019 as building the wall will remain in the public eye.
Putting it All Together in 2019
This year we can expect many attempts to finalize more restrictive immigration policies in an effort to deter foreign-born individuals from studying, working or immigrating to the United States of America, as well as preventing asylum seekers from reaching the U.S.