For the fourth straight year, we should not expect Donald Trump to visit the Statue of Liberty and deliver a speech celebrating America’s tradition as a nation of immigrants. But here’s what we should expect to happen on immigration in 2020.
H-1B and L-1 Visas: Employers should expect denials of H-1B petitions, particularly for companies that serve customers at third-party sites, to continue at or near the high rates seen during the first three years of the Trump administration. In March, U.S. Citizenship and Immigration Services (USCIS) will introduce an electronic registration system. Companies will use the system to submit minimal information on professionals they seek H-1B visas for in the April lottery, which is held each year for 65,000 H-1B petitions and the 20,000-exemption from the annual limit for foreign nationals with advanced degrees from U.S. universities. It could lead to increased filings and, as a consequence, a lower percentage of cases selected in the lottery for startups or other companies that submit few applications.
USCIS plans to publish a rule that would “revise the definition of specialty occupation . . . and revise the definition of employment and employer-employee relationship.” The rule will likely be restrictive and seek to “lock-in” current policies.
Companies are expected to turn more to litigation to address H-1B denials. Jonathan Wasden, a partner at Wasden Banias LLC, told me in an interview, “Those companies that engaged the agency through litigation were treated with kid gloves compared to other companies” and saw much lower denial rates after they filed lawsuits. (See here for more analysis on H-1B visas.)
USCIS also plans a new regulation to “revise the definition of specialized knowledge, to clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders.” (L-1 visas are used to transfer employees into the U.S. from abroad.) It is now challenging to get an L-1 visa approved, according to employers. “Our refusal rate for L visas at consular posts in India is 80% to 90%,” an executive of a major U.S. company told me in an interview. A new regulation would introduce greater uncertainty into company personnel policies. (See here.)
H-4 EAD: March 2020 is the target date for a proposed rule to rescind an existing regulation that allows many spouses of H-1B visa holders (H-4s) to work on employment authorization documents (EADs). The administration cited such a rule in response to a lawsuit. If the rule is published, expect many comments, which will delay publication of a final rule, and litigation that seeks an injunction to block the regulation should it become final. (See here for additional background.)
Will the Per-Country Bill Become Law?: On July 10, 2019, the Fairness for High-Skilled Immigrants Act (H.R. 1044), introduced by Rep. Zoe Lofgren (D-CA), passed the House by a vote of 365-65. The legislation would address waits of potentially several decades for employment-based immigrants from India due to per-country limits.
For months, S. 386, a companion bill to H.R. 1044, has been blocked in the Senate, first by Senators Charles Grassley and Rand Paul, and, more recently, by Sen. Richard Durbin. Sen. Mike Lee, the chief sponsor of S. 386, has agreed to include in the bill provisions requested by the three senators. These include new H-1B restrictions and much greater leeway for the Department of Labor to investigate employers. (You can read the latest bill language.) Sponsors are still determining if there will be additional holds on the bill that will prevent the legislation from being voted on in the Senate.
DACA: On November 12, 2019, the Supreme Court heard a challenge to the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program, which currently grants work authorization and administrative relief from deportation for up to 700,000 individuals who came to America before the age of 16. If the Supreme Court rules in favor of the administration, then talk of a legislative compromise will increase. However, the closer it gets to the November 2020 presidential election, the less likely a deal may become.
New Restrictions on International Students: New enrollment of international students fell by more than 10% between the 2015-16 and 2018-2019 academic years. That has not discouraged the Trump administration from proposing additional international student restrictions. Items on the administration’s regulatory agenda include targeting Optional Practical Training (OPT), establishing a “maximum period of authorized stay for students” (a change from the current “duration of status”) and a proposed rule (with a September 2020 target) on “unlawful presence.” That rule is likely a response to a May 2019 injunction blocking two policy memos on “unlawful presence” following a lawsuit (Guilford College) filed by universities. (See here for a discussion of the current OPT lawsuit.)
Refugee and Asylum Policies: In September 2019, the Trump administration announced a historically low annual refugee admission ceiling of 18,000 for FY 2020, a reduction of 84% from the 110,000-limit set during the last year of the Obama administration. “The administration betrays our national commitment to offering refuge and religious freedom to persecuted Christians and other religious minorities,” said World Relief in a statement. There is no reason to anticipate the administration will raise the refugee ceiling for FY 2021.
In response to an executive order mandating consent from state and local authorities to resettle refugees, more than 30 governors have written letters to the State Department pledging their states will continue to resettle refugees. Three organizations have filed a lawsuit over the executive order.
Numerous lawsuits have challenged the administration’s asylum policies toward Central Americans. In one respect, the administration has already “won” on asylum, since the policies to block most asylum seekers and send them to Mexico and other countries have been allowed to remain in place while litigation has continued. Any court decisions that compel the administration to stop its current policies would be the most significant events on asylum in 2020. (See here for an analysis of asylum-related lawsuits.) In 2020, the administration will need to deal with an increase in Mexican asylum seekers fleeing violence in Mexico.
Courts to Decide on Public Charge and Use of 212(f) to Limit Immigration: On October 4, 2019, a presidential proclamation used Section 212(f) of the Immigration and Nationality Act to bar new immigrants from entering the United States without health insurance, potentially reducing legal immigration by hundreds of thousands of people per year. A similar reduction in legal immigration could result if the administration’s rule on Inadmissibility on Public Charge Grounds goes into effect.
Judges have blocked both measures, at least temporarily, but if a court clears either for use, then it could be the Trump administration’s most far-reaching immigration measure. A permanent reduction in the flow of legal immigrants would reduce the long-term rate of economic growth in America, making these actions potentially the most significant policies to affect the U.S. economy under the Trump presidency.
Temporary Protected Status (TPS): A November 1, 2019, Federal Register notice automatically extended “the validity of TPS-related documentation for beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti and El Salvador through Jan. 4, 2021.” However, a decision in the case of Ramos v. Nielsen, which blocked the Trump administration’s attempt to rescind Temporary Protected Status for several countries, could end long-term stays in the United States for approximately 300,000 people.
Workplace Enforcement: “Investigators with U.S. Immigration and Customs Enforcement opened about four times the number of workplace investigations in the year ended Sept. 30 compared with the close of the Obama administration,” reported the Wall Street Journal. That trend is likely to continue in 2020. A U.S. Supreme Court decision in Kansas v. Garcia may represent a more significant immigration enforcement threat for companies. Paul Hughes, who represented Garcia, said in an interview if the court rules in favor of Kansas, then “local city and county prosecutors could engage in mass prosecutions of employees and employers” for “the employment of immigrants who lack work authorization.”
Immigration Fee Increases and EB-5: Individuals applying for citizenship and other immigration benefits, and immigrant investors in the employment-based fifth preference (EB-5) category can expect to pay more in 2020. The administration has announced fee increases of more than 50% for many applications, including a more than 80% increase for naturalization. Doug Rand, co-founder of Boundless, expects it will be at least two or three months into 2020 before a final rule on the fee increases is published and anticipates lawsuits and the possibility of preliminary injunctions.
A USCIS rule governing EB-5 finalized in November 2019 substantially raised the minimum investment amount for a foreign investor. The administration plans two more EB-5 rules, one to make changes to the EB-5 Immigrant Investor Regional Center Program, and the other rule would “increase monitoring and oversight . . . as well as encourage investment in rural areas.” The November 2019 regulation will encourage EB-5 supporters to push for favorable legislation in Congress.
The Wall: Donald Trump is determined to build as much of a “wall” as possible before the November 2020 election. Anticipate stepped-up seizures of private land and fights with judges and environmental groups.
The most important event in 2020 to affect immigration policy will be the presidential election in November. The election results will tell us whether America will see another four years of Donald Trump’s policies or whether immigration policies will move in a new direction.