Immigration Alert – Challenges Employers Face in Hiring Foreign Workers
November 21, 2019
The ability to recruit foreign talent is an important resource for companies looking to fill open positions. However, in the recent years it has become increasingly difficult for corporations to recruit and retain foreign talent due to serious issues with securing and retaining work visas. Because sponsoring an employee for an H-1B or L-1 visa can be a costly endeavor, employers should be aware of the challenges to the process.
Buy American, Hire American
Due to the President’s executive order to “Buy American and Hire American” (BAHA), visa petitions that are filed are reviewed under a heightened level of scrutiny. This is evidenced by the increase in denial rates for H-1B and L-1 visas. The executive order has also affected the level of scrutiny applied to review of H-1B and L-1B petitions, which has been shown by the significant increases in requests for evidence for petition filings. In light of the BAHA order, employers should adjust their expectations regarding the level of effort and processing times for employment visa filings.
Increased Immigration Enforcement and Site Visits
The U.S. Citizenship and Immigration Service (USCIS) is continuing to increase the amount of site visits conducted in response to the Department of Homeland Security OIG report that the USCIS site visit program was providing minimal oversight to ensure H-1B compliance. Employers should note that site visits are unannounced so there must be a proper procedure or policy in place if USCIS officials arrive. Employers can be prepared by having a designated individual to handle such matters and impeccable records of relevant information to ensure a smooth process.
Employers’ other immigration compliance concerns are I-9 audits and worksite raids where Immigration and Customs Enforcement (ICE) will arrest employees who are suspected of being in the United States without authorization. ICE does not appear to be limiting I-9 audits to certain industries that had traditionally been ICE’s focus, such as construction or service industries. ICE appears to be increasing both the number and scope of its audits.
Employment Based Green Card Interviews
USCIS has reinstated the interview requirement for employment based green cards. Each applicant must attend an interview at a local USCIS to discuss their petitions. Increase in processing times can be expected as local USCIS offices did not receive additional resources to conduct interviews. As such, employers should be mindful of the impact that processing times will have on their foreign national employees.
Under three separate executive orders, foreign nationals from certain countries either undergo extreme scrutiny to obtain a visa or are under a complete ban. Each country listed in the executive orders has its own unique restrictions for foreign nationals who wish to travel to the United States. Employers should be extremely cautious in seeking to employ foreign nationals covered under the travel bans and be prepared for an intensive petition process.
One thing is certain: The Trump administration has taken significant action in the employment immigration world, both by slowing down legal immigration and increasing the pressure on employers through worksite enforcement. We expect this trend will continue. But despite the difficulties with recruiting and retaining foreign workers, employers should not be completely daunted by the task. We can offer assistance if your organization wishes to employ foreign talent.