U.S. immigration: what every organisation should know

Despite the latest immigration hurdles, the U.S. is still a viable destination to relocate an employee. Applications for work visas and U.S. Lawful Permanent Residency are still being approved on a daily basis. The key is to be compliant, understand the U.S. immigration landscape, and be proactive about avoiding potential issues.

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We are approaching the two-year anniversary of the election of Donald Trump as president of the United States. What coincided with the start of this new administration was the onset of the U.S. immigration system experiencing many changes that continue to affect U.S. corporations and organizations as well as those looking to relocate staff to their U.S. operations.While U.S. immigration laws have not changed, the interpretation of those laws by the Trump administration has had wide-reaching implications for organizations worldwide. As the dust settles, we are able to assess and understand some of the changes that have been implemented by this administration, as well as how best to navigate these changes for corporations and organizations needing to relocate foreign national staff to the United States.
Find out more about President Trump's immigration policies and the affect on global mobility in The Trump Effect
This article will demonstrate how the U.S. remains a very viable destination for an organization’s foreign national employees. It is crucial, though, that your organization understands the new U.S. immigration landscape to ensure that your relocations transition smoothly from an immigration perspective.

New Standards

One of President Trump’s hallmark campaign commitments was to build a multi-billion dollar border wall between the U.S. and Mexico, which he continues to push forward as part of his overall agenda. While the wall has yet to come to fruition, the administration has placed certain obstacles on those trying to legally immigrate to the U.S. – either on a temporary or permanent basis. In short, it is now more challenging for U.S. companies to employ foreign nationals.The foreign national community in the United States has witnessed moving targets, purposeful government delays of immigration petitions and applications, governmental requests and petition denials, and other initiatives to try to dissuade organizations from employing foreign nationals. Most of these changes were unannounced and amended years and years of standards and precedent in terms of how applications were reviewed and adjudicated.Many of the initiatives are coming through the Trump administration’s “Buy American, Hire American” initiative whereby the administration is trying to push the hiring of U.S. workers rather than foreign workers by reviewing immigration laws, regulations, and standards while focusing on reforming ones that are not in line with this goal.In practice, the good news is that once the new standards are understood, visa and U.S. Lawful Permanent Residency (“green card”) applications are still very much approvable. The key is for any organization looking to move employees into the United States to understand the political and immigration landscape and work deliberately to file immigration applications that are approvable under the new administration standards.

Immigration Reform

With this administration, there has been much talk about potential immigration reform. Visas discussed for reform include the popular H-1B visa, which is the most common U.S. work visa for people holding jobs that require the equivalent of a U.S. bachelor’s degree. The H-1B visa is subject to a numerical cap and a lottery system when the cap is reached. When the H-1B visa was created, Congress likely meant the visa to be for technology, medical, engineering, and other highly skilled industries. In practice, the H-1B visa has been used by organizations in all industries.  Potential reform points have included the numerical cap, the lottery, and industries that are able to utilize the visa. Other visas that have been discussed for potential reform are the TN visa, which is available to Canadians and Mexicans through the (formerly named) NAFTA treaty. The J-1 cultural exchange visa is also up for potential reform. There are some other visa types, including the L-1 intra-company transferee visa, that are not likely to be reformed, but whose regulations are being reinterpreted by the administration. This has led to different adjudicatory standards for these visas than in prior years.When it comes to potential immigration reform, it is important to note that the president cannot unilaterally make these changes without the US Senate and House of Representatives changing the laws through the standard lawmaking process. Right now, most of these visas are safe from a major overhaul. But, the administration is adjudicating the immigration applications differently based on new standards.

Enforcement Measures

Another issue to be aware of for companies looking to relocate employees to the United States is the Trump administration’s focus on enforcement. The enforcement measures come after a visa or green card application is approved. This is a major initiative and it has used audits, raids, and evidentiary requests to accomplish this goal.Audits can be either by mail or in-person whereby government officers check to ensure that organizations are complying with immigration laws as well as the stipulations that it made in its immigration application (i.e. location of worksite, rate of pay, job title, job duties, etc.). Raids have largely been carried out on manufacturing companies at factories where the government targeted both unauthorized employment by the company as well as people in the U.S. illegally working for the raided company. For companies that remain compliant, the enforcement measures are largely an administrative exercise. However, the enforcement measures are a strong reminder to be very careful to follow the laws when employing foreign nationals in the United States.

Security Measures

The Trump administration has also taken steps to increase its security measures at U.S. Embassies and Consulates outside the U.S., at ports of entry, and within the immigration agencies. These measures include performing internet searches on visa and green card applicants. The searches can turn up small crimes as well as prior stays in the U.S. where a person may have worked without proper immigration authorization.It is crucial that you and your foreign national employees understand what the internet says about them so that they can address any issues and concerns throughout the immigration process. Additionally, it is more important than ever that your foreign national employees are truthful and transparent about prior criminal transgressions, including violations for Driving Under the Influence (DUIs).While some transgressions may not be seen as a big problem in a person’s home country, the U.S. government may take a different view. Your employee being open and honest with the company and its U.S. immigration counsel will help to avoid surprises during the process, as well as prepare the them on what to say when asked about an issue.
Chamness Worldwide, winner of Best Technological Innovation – Employee & Family Support in the 2018 Relocate Awards have 30 years of experience in delivering relocation services. Find out more about Chamness Worldwide at www.chamnessrelo.com 
For related news and features, visit our USA and our Immigration sections.
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