Insight

U.S. Business Immigration: Year-in-Review

For more reasons than are probably appropriate to include here today, 2017 will be forever be burned into the memories of everybody in the U.S. immigration industry, and all HR and legal professionals who were involved in hiring and/or employing foreign workers in the U.S. No matter your political persuasion, 2017 turned out to not be anything like we all expected at the beginning of the year, fol

U.S. Business Immigration: Year-in-Review
Christian S. Allen

Christian S. Allen

March 2, 2018 03:12 PM

For more reasons than are probably appropriate to include here today, 2017 will be forever be burned into the memories of everybody in the U.S. immigration industry, and all HR and legal professionals who were involved in hiring and/or employing foreign workers in the U.S. No matter your political persuasion, 2017 turned out to not be anything like we all expected at the beginning of the year, following a historic presidential election result.

The year actually started out with some fairly good immigration news for businesses. We got a new I-9 Employment Eligibility Verification form from the U.S. Citizenship and Immigration Services agency ( USCIS). The new form included some long-overdue changes, making it much more user-friendly for busy HR people. Simultaneous immigration regulation changes also tweaked several parts of the underlying employment verification rules. Those changes allowed for simple things like temporary work card extensions to be treated more reasonably, thereby avoiding common short-term (but always costly) gaps in work authorization for otherwise lawful workers in the U.S.

We all had our own opinions on the new president’s positions about a southern border wall, the danger posed by illegal immigrants in the U.S., and the problems with so-called “sanctuary cities.” Nobody was naïve enough to believe that the new administration wouldn’t attempt some changes to the U.S. immigration system (e.g., President Obama’s DACA program was squarely in their crosshairs). However, most business people also assumed that only Congress would change the core immigration laws and effect substantive change on the U.S. business community.

That “stay calm and hire (legally) on” message within the HR community was essentially how everybody felt going into the annual legal circus that is the H-1B cap lottery filing season on April 1. Few people in the immigration community had given much serious concern to yet another one of the president’s several executive orders: Buy American and Hire American. The order didn’t change any immigration laws (again, only Congress could), nor was it a regulation formally changing the government’s implementation of the existing laws. In fact, the small parts of the order referring to immigration at all simply consisted of general policy directives to federal agencies to ensure that they were enforcing existing laws (which many agencies initially took as an offensive insinuation that they’d somehow not been doing their jobs). However, by the end of the summer it became apparent that those same agencies had received directives to, in fact, alter long-standing processes and practices, the relative certainty of which U.S. business had come to rely on in a healthy economy, with significant skilled and professional labor shortages, across many industries.

Almost without warning, employers started seeing routine temporary work visa applications being suddenly denied by U.S. consulates across the globe. If any rationale was provided for these denials at all, it was usually just a vague reference to an undefined hire American preference for U.S. workers, which has never been a requirement in the U.S. law for those types of visas. Employers with European operations were particularly blindsided by a sharp uptick in denials of E and L class work visas for top managers and critical technical personnel being temporarily transferred to the U.S. Similar results were being reported from the U.S. borders and international airports. And then, a deluge of so-called requests for evidence started arriving from the USCIS immigration agency, in connection with those H-1B cap lottery petitions employers had filed on April 1.

After celebrating the “good luck” of having their petition selected in the Kafkaesque one-in-three odds of the H-1B cap lottery, many well-intentioned companies were hit with long, rambling 10-page letters from the USCIS demanding copious amounts of additional evidence to prove that the company was a genuine employer with a valid professional job offer. Also included in those requests were lengthy arguments that entry-level but still entirely professional workers were somehow no longer eligible for H-1B work visa sponsorship; this again, despite no changes in the immigration laws or regulations at all. Employers and their attorneys have been scrambling for months to respond to these queries, wasting an enormous amount of time, energy, and resources on something that would have been virtually unheard of in the two prior decades. Informal estimates of the number of such novel USCIS requests this summer were in the thousands, and many of those H-1B petitions are still not yet resolved today. A Wall Street Journal article last month summed up the situation well, including this quote: “The goal of the administration seems to be to grind the process to a halt or slow it down so much that they achieve a reduction in legal immigration through implementation rather than legislation.”

So, what does all of this mean for employers and legal professionals in 2018? The short answer is that nobody knows. Until Congress takes up meaningful immigration reform legislation, it’s likely the various federal agencies will continue to take actions that make the U.S. immigration system effectively unusable for many employers. The economic impacts of that on U.S. industry are obvious. For the busy HR professionals in the day-to-day trenches, that translates to a need to be hyper-diligent about their company’s immigration compliance, to be significantly more proactive about routine work visa sponsorships than they’ve ever been in the past, and to work even more closely with competent immigration counsel and help business units and their critical foreign workers to navigate an ever-changing landscape of unwritten government rules. It remains to be seen if Congress will finally wade back into the immigration reform debate. Either way, it will definitely be another interesting year in global mobility.

------------------

Christian Allen is a senior attorney in Dickinson Wright’s Troy office, where he practices exclusively in the area of immigration law. He has extensive experience guiding employers of all sizes and in all industries through the maze that is the U.S. immigration system. Chris can be reached at 248-433-7299 or CAllen@dickinsonwright.com.

Related Articles

The Rise and Fall of the H-1B Worker


by Kathleen Saenz Poppenger

Until recently, most people were unfamiliar with the H-1B visa, except for those seeking to take advantage of this temporary worker category.

Rise and Fall of the H-1B Worker

The New Business Immigration Regime


by Christy Nguyen

Five things executives and HR should do.

Business Immigration Regime

Texas’ New Immigration Enforcement Bill Hits Federal Appeals Court


by Gregory Sirico

Enacted in 2023, SB-4 is reshaping immigration in Texas, establishing new legal provisions that could only look to increase tension between the U.S. and Mexico

Border patrol officer oversees scene

Do I Really Need an Immigration Attorney? Key Factors to Consider


by Best Lawyers

Immigrating to the U.S. can be a complex and lengthy experience. In this article, Best Lawyers evaluates how an immigration attorney can help along the way.

Department of Homeland Security logo with American flag in the backdrop

Maximizing Your Chances of Approval with an Immigration Attorney


by Best Lawyers

Immigrating to a new country is often a complex, arduous and sometimes costly process. To maximizing your chances of approval on your immigration journey, seek the counsel of an experienced immigration attorney.

View of the Statue of Liberty with birds in backdrop

U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules


by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

Paying It Forward


by Best Lawyers

One woman’s journey from immigrant daughter to immigration attorney: her passion, purpose, and pursuit of excellence.

A Woman's Journey From Immigrant Daughter to

The Price of Admission


by Janice Zhou

States and the federal government are engaged in a pitched battle over immigration and refugee settlement—with the legal profession caught in the middle, taking fire from both sides.

Immigration Reform in Connecticut

WATCH: Supreme Court Rules DACA Stays


by Best Lawyers

Three immigration law attorneys join the CEO of Best Lawyers to discuss the Supreme Court's decision to block the Trump administration's effort to stop the DACA program.

Panel: DACA SCOTUS Ruling

Cost of Entry


by Best Lawyers

As naturalization fees increase, a local nonprofit provides financial relief for immigration

Financial Relief for Immigration in Florida

Traversing the Immigration Frontier


by Best Lawyers

Brian Graham Interview LOTY

There Is Hope after the H-1B Cap: Alternatives to the H-1B Visa


by Meredith W. Barnette

Alternatives and options if the change in H-1B visas applies to you or your business.

H-1B Visa Alternatives for 2018

Issue Spotting Guide for Assessing Inbound to U.S. Travel Issues


by Kathleen M. Peregoy

This guide is intended to serve as a resource for management and human resources representatives when making decisions and advising employees/management on travel and immigration-related concerns.

Guide for Assessing Inbound to U.S. Travel Is

Make the Workforce American Again


by Michael J. Wildes

The H-1B visa program allows U.S. companies to temporarily employ foreign workers in specialty occupations, including jobs in technology, engineering, science, architecture, accounting, and business.

Make the Workforce American Again

The Inside Wall


by Charla Truett

Are bricks being stacked up against employment-based immigration?

The Inside Wall

Trump and Immigration: Separating Truth from Fiction


by Harlan G. York

Deportations aren’t up, but the people who are being deported are more “newsworthy.”

Trump and Immigration

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Presenting the 2025 Best Lawyers Editions in Chile, Colombia, Peru and Puerto Rico


by Jennifer Verta

Celebrating top legal professionals in South America and the Caribbean.

Flags of Puerto Rico, Chile, Colombia, and Peru, representing countries featured in the Best Lawyers

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Unveiling the 2025 Best Lawyers Editions in Brazil, Mexico, Portugal and South Africa


by Jennifer Verta

Best Lawyers celebrates the finest in law, reaffirming its commitment to the global legal community.

Flags of Brazil, Mexico, Portugal and South Africa, representing Best Lawyers countries

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background

The Human Cost


by Justin Smulison

2 new EU laws aim to reshape global business by enforcing ethical supply chains, focusing on human rights and sustainability

Worker wearing hat stands in field carrying equipemtn

Beyond the Billables


by Michele M. Jochner

In a recently conducted, comprehensive study, data reveals a plethora of hidden realities that parents working full-time in the legal industry face every day.

Women in business attire pushing stroller takes a phone call