Chief executive officers (CEOs) from more than 50 companies signed a letter sent to Secretary of Homeland Security Kirstjen Nielsen expressing their concern about the current course of immigration policy in the United States. Using words like “unfair,” “arbitrary,” and “inconsistent,” the CEOs alleged that the immigration system is not only disruptive to business operations but also “undermines economic growth and American competitiveness.”
The letter identifies four major policy shifts that the CEOs say are responsible for needlessly subjecting their businesses to additional costs and complications, in addition to causing significant anxiety for their employees.
- In October 2017, U.S. Citizenship and Immigration Services (USCIS) issued a memorandum overturning prior guidance that directed USCIS adjudicators to defer to prior determinations of eligibility for extensions of nonimmigrant status unless there had been a material change in circumstance or there had been a material error with the prior approval. “Now, any adjudicator can disagree with multiple prior approvals without explanation,” say the CEOs in the letter.
- Effective September 11, 2018, USCIS adjudicators may deny any application they determine to be incomplete or lacking sufficient evidence without first issuing a request for evidence or notice of intent to deny. This shift represents a reversal of prior policy and puts employees at a greater risk of being put into removal proceedings. The letter says this is particularly challenging for employers that employ H-1B visa holders due to shifting standards for meeting evidentiary burdens.
- In June of 2018, USCIS introduced a memorandum allowing USCIS officers to issue notices to appear, thus commencing removal proceedings, for those deemed to be unlawfully present after the denial of an immigration benefit. Implementation of the policy has been delayed. The CEOs say that their “employees are concerned that they will face removal proceedings even if they have complied with immigration laws and intend to promptly depart the country.”
- The CEOs worry that the anticipated rescission of work authorization for certain eligible spouses of H-1B employees, many of whom are also highly educated, is likely to “cause high-skilled immigrants to take their skills to competitors outside the United States” where both spouses are authorized to work.
The CEOs say these policies create uncertainty and some of the policies also increase the likelihood of visa denials for longtime employees who have repeatedly renewed their work authorization with USCIS in the past. They put “thousands of law abiding and skilled employees” in jeopardy of losing their status, even in instances when the Department of Labor certifies that there is no qualified U.S. worker available to do their job. “At a time when the number of job vacancies are reaching historic highs due to labor shortages, now is not the time to restrict access to talent,” say the CEOs.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these immigration policies and their impacts on the business community, and will post updates on the Immigration blog as additional information becomes available.