The Changing Landscape of Business Immigration Under the New Administration

These Are the Days of Our Lives: The Changing Landscape of Business Immigration under the New Administration

Patricia Curran Reinhardt, Senior Counsel at MetLife, Inc. Caroline Tang, Shareholder at Ogletree Deakins Agenda

• Immigration History/Background • Executive Orders

• H-1B Updates: Buy American, Hire American

• Role of Work Visas in Talent Acquisition and Retention

• Guidance on Consular Processing

• Update on DACA and Travel Restrictions

• B-1 Permissible Activities

• What’s Next? Brief History of Immigration Laws

• 1776 – 1875: Open Door Policy • 1875 – 1917: First Immigration Restrictions • 1917 – 1951: First Quota Systems • 1952 – 1985: Immigration & Nationality Act (and revisions) • 1986: Immigration Reform and Control Act (IRCA) • 1996: Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) • 2008/2009: Special Immigrant Visa Programs for Iraqi and Afghan Allies Immigration: Government Agencies

• U.S. Department of Homeland Security or “DHS” (formerly Immigration & Naturalization Service or “INS”) • U.S. Citizenship and Immigration Services (“USCIS” or “CIS”) • U.S. Customs and Border Protection (“CBP”) • U.S. Immigration and Customs Enforcement (“ICE”)

• U.S. Department of State (“DOS”)

• U.S. Department of Labor (“DOL”) • Employment and Training Administration (“ETA”) • Board of Alien Labor Certification Appeals (“BALCA”)

• U.S. Department of Justice (“DOJ”) • Executive Office for Immigration Review (“EOIR”) • Board of Immigration Appeals (“BIA”) Immigrant Visas

• Lawful Permanent Residence or “Green Card” holders • Can become U.S. citizens (naturalization) • Categories: • Family-Sponsored • Employment-Sponsored (includes professionals, investors, and certain special immigrants – including Iraqis and Afghans who have worked on behalf of the U.S. government) • Wait Times for Immigrant Visa Approval: • 6 months to 20+ years Nonimmigrant Visas

• Temporary status in the United States

• Categories: INA 101(15)(A) through (V) • (B): Visitors (Business and Tourism) • (F): Students • (H): Temporary Workers • (L): Intracompany Transfers • (O): Aliens of Extraordinary Ability • (P): Performers and Athletes • (Q): Cultural Exchange (“Disney visa”) Security Clearances

• Visas Mantis: potential illegal transfer of sensitive technology • Visas Bear: for foreign government officials, representatives to international organizations, and their families • Visas Donkey: name hits, certain nationalities • Visas Merlin: refugees and asylees • Visas Eagle: certain nationals of Cuba, China, Russia, Iran, Vietnam • Visas Condor: certain nationalities – e.g ., Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, the United Arab Emirates, Yemen • Visas Hawk: immigrant visas • Visas Horse: diplomatic visa holders of certain nationalities • Visas Pegasus: officials of Commonwealth of Independent States Executive Orders

• Several rounds of travel restrictions involving a different mix of countries

• January and March Orders banned travel for certain countries

• Judiciary challenges

• Increased scrutiny and delays at airports January and March 2017 Executive Orders

• Focused on Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen

• January 2017 EO: Plain text applied to lawful permanent residents (green card holders, generally considered to have same rights as U.S. citizens)

• March 2016: Removed Iraq; permitted waiver of travel ban on case-by-case basis

• Preliminary injunction from federal court September 24, 2017 Proclamation

• Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats • Imposes nationality-based travel restrictions as a result of a worldwide review conducted by the secretary of the U.S. Department of Homeland Security • Impacts nationals of: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen • October 17, 2017: Temporary restraining order issued by federal court in Hawaii H-1B Updates

April 18, 2017 Executive Order: Buy American, Hire American

“stimulate economic growth”

“ensure the integrity of the immigration system”

“propose new rules and issue new guidance” H-1B Updates: Buy American, Hire American

What We Know • H-1B Visa Reform:

• EO focuses specifically on the H-1B visa program • Help ensure that H-1B visas are awarded to the most-skilled or highest- paid petition beneficiaries • Previous statements from the administration have indicated that preferring workers with U.S. degrees and raising application filing fees are among the reforms being considered H-1B Reform Timeline: “As Soon as Practicable”

Agencies should go through the required rulemaking process as set forth in the Administrative Procedure Act (APA), which includes a public notice and comment period before any changes can be implemented.

As a general matter, the President’s ability to act unilaterally within the context of the nation’s immigration system is limited to the interpretation of existing laws or regulations (in certain instances), or to the establishment of priorities in the enforcement of existing laws. Work Visas in Talent Acquisition: Hiring Channels

Foreign students who graduate from a U.S. university If foreign students do not the H- •1 year Optional Practical “win” New Grads (after Training (OPT) work 1B visa lottery authorization post before OPT expires, graduation): graduation •Additional 2 years for STEM U.S. employment graduates terminates.

H-1B visa holders Industry already in the U.S. who are working for recruiting: competitors

Internal transfers Executives, managers, in to the U.S. and specialized knowledge engineers from a related and other professionals entity abroad H-1B Professional Workers

Specialty Occupation means: • An occupation which requires theoretical and practical application of a body of highly specialized knowledge • And which requires the attainment of bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the U.S. • Including, but not limited to, engineering, mathematics, physical sciences, business specialties, accounting, law, etc. H-1B “Cap” (Quota): 85,000 per year

“Cap” refers to annual Each person is numerical limitations counted against the set by Congress on the cap once. number of workers • New college grads are authorized to be subject to the H-1B cap. admitted on different • Experienced candidates types of visas or transferring from a different U.S. employer to authorized to change employer are generally status if already in the NOT subject to the H-1B United States. cap. Test Your Knowledge: The 2017 H-1B Visa Lottery

How many H-1B petitions did U.S. employers file during the 5-day window in April 2017? A. 364,000 B. 295,000 0% 0% 0% C. 199,000 A. B. C. Test Your Knowledge: The 2017 H-1B Visa Lottery

How many H-1B petitions did U.S. employers file during the 5-day window in April 2017? A. 364,000 B. 295,000 0% 0% 0% C. 199,000 A. B. C. H-1B Supply and Demand: 5-Year Trend

Selection Rate Year USCIS Lottery History

2013 Lottery: USCIS received 124,000 petitions 68% Won

2014 Lottery: USCIS received 172,500 petitions 49% Won

36% Won 2015 Lottery: USCIS received 233,000 petitions

2016 Lottery: USCIS received 236,000 petitions 36% Won

2017 Lottery: USCIS received 199,000 petitions 43% Won What if you don’t win the H-1B lottery?

• 24-month work authorization extension for foreign students with U.S. STEM degree (“STEM OPT”)

• Treaty Relief • TN NAFTA re: Canada and Mexico • H-1B1 for Chile and Singapore • E-3 Specialty Occupation for Australians

• O-1 Extraordinary Ability

• Terminate employment • Rotate to foreign affiliate for 1 year and then utilize L-1 visa to bring the employee back Test Your Knowledge: H-1B Trends

While the government is working on recommended changes or proposals for H-1B visa reform, the incidence of USCIS requesting “more evidence” is: A. Flat as compared to 2016 B. Increased by 25% C. Increased by 45% 0% 0% 0%

A. B. C. Test Your Knowledge: H-1B Trends

A. B. C. Test Your Knowledge: H-1B Visa Lottery Results

USCIS is questioning whether the following occupations require at least a bachelor’s degree in a directly related field? A. Electrical/Electronics Engineers B. Materials Scientist C. Computer Systems Analysts D. Quality Assurance Engineers E. Product Managers 0% 0% 0% F. Statisticians G. Dentists A. B. C. H. All of the above Test Your Knowledge: H-1B Visa Lottery Results

Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL) propose a new framework in “H-1B and L-1 Visa Reform Act” (S.180), reintroduced in the Senate in January, that prioritizes the annual allocation of the 65,000 H-1B visa quota in the following order:

1. U.S. STEM advanced degree; 2. Top-tier [Level 4] wage on the DOL scale; 3. Non-STEM U.S. advanced degree; 4. Second from highest wage [Level 3] RAISE Act

Senators Tom Cotton (R-AR) and David Perdue (R-GA) proposed a new “green card” framework in “Reforming American Immigration for a Strong Economy (RAISE Act),” introduced in the Senate on August 2, 2017.

 Replace current employment-based preference system with points system.  Prioritize immigrants based on factors including education level, offered annual salary, extraordinary achievement, entrepreneurial investment, English language proficiency, and age  30-point threshold to be eligible for an employment- based immigrant visa  Number of employment-based immigrant visas available each year static at 140,000 and issued annually to the highest scoring applicants Test Your Knowledge: Employment-Based “Green Cards”

Green Card How many immigrant visas (“green cards”) are awarded each year to employment- based applicants? A. 140,000 0% 0% 0% B. 420,000 A. B. C. C. 1,260,000 Test Your Knowledge: Employment-Based “Green Cards”

RAISE Act Under the proposed RAISE Act, how many immigrant visas would be awarded each year to employment-based applicants?

A. 140,000 B. 420,000 0% 0% 0% C. 1,260,000 A. B. C. Test Your Knowledge: Preferences vs. Points

RAISE Act Under the proposed RAISE Act, how many immigrant visas would be awarded each year to employment-based applicants?

A. 140,000 B. 420,000 0% 0% 0% C. 1,260,000 A. B. C. Test Your Knowledge: RAISE Act

Under the recently proposed RAISE Act, which of the below would NOT be a factor considered in the points-based system? A. Age B. Country of birth C. Education D. English ability

E. Job offer 0% 0% 0% 0% 0% 0% 0% 0% F. Nobel Prize or major award A. B. C. D. E. F. G. H. G. Olympic medal H. Investment in the United States Test Your Knowledge: RAISE Act

Under the recently proposed RAISE Act, which of the below would NOT be a factor considered in the points-based system? A. Age B. Country of birth C. Education D. English ability

E. Job offer 0% 0% 0% 0% 0% 0% 0% 0% F. Nobel Prize or major award A. B. C. D. E. F. G. H. G. Olympic medal H. Investment in the United States Guidance on Consular Processing

• Expect delays at consular posts

• Enhanced scrutiny/ longer visa processing times

• Increased exercise of discretion/visa denials

• Be prepared!

• Have paperwork, know talking points, and have a Plan B

• Plan B: will the business allow you to telework until you have visa? Test Your Knowledge: DACA

DACA Update How may people in the United States are part of the DACA program? A. 200,000

B. 800,000 0% 0% 0%

C. 1,400,000 A. B. C. Test Your Knowledge: DACA

DACA Update How may people in the United States are part of the DACA program? A. 200,000

B. 800,000 0% 0% 0%

C. 1,400,000 A. B. C. Deferred Action for Childhood Arrivals (DACA)

• June 15, 2012 DACA Memorandum rescinded on September 5, 2017

• DACA phasing out under Trump administration

• Congress has six months to take action • If no action is taken, associates with DACA status will eventual lose work authorization

• All DACA initial work permit applications filed after September 5, 2017 will be rejected

• Properly filed pending DACA initial requests and applications for employment authorization by September 5, 2017  adjudicated on a case-by-case basis

• No work permits will be terminated prior to their current expiration dates • Those whose permits expire by March 5, 2018 were permitted to apply for two-year renewals as long as they did so by Oct. 5, 2017. B-1 or ESTA (Visa Waiver): Permissible Business Visitor Activities

Factors to be Considered:

•Nature of business trip

•Length of business trip

•Business, Personal or Combination

•Payments from US entity

•Increased Consular scrutiny Permissible Business Visitor Activities

WORK vs. BUSINESS TRAVEL

• Prohibited Activities • Permissible Activities

• Attending a seminar or conference • Training Gainful • Attending contract negotiations employment • Meeting with clients/business partners (hiring, firing, managing employees) What’s Next?

NAFTA/TN VISA UPDATE

Trump NAFTA is administration source of TN Trump notifies visas for NAFTA threatens to Congress of Canadian or negotiations withdraw intention to Mexican ongoing from NAFTA renegotiation nationals NAFTA

1994 2016 Presidential May March Campaign 2017 2018 What’s Next?

H-4 EADs

 February 2015  H-4 spouses of H-1B visa holders are eligible for work authorization if certain conditions are met  Judicial challenges  Administration submitted opinion to court in September 2017  May or may not decide not to challenge lawsuit  Business as usual while litigation is pending . H-4 EADs remain valid . Eligible dependent spouses can continue to apply What’s Next?

• In-person interviews for employment-based green card applicants • Targeted audits and site visits • President’s Immigration Priorities: • “Extreme vetting” • Increase in requests for evidence • Labor certification denials (testing labor market for employment- based green card sponsorship) • Visa denials • Detaining at border QUESTIONS?