Trump’s Hard Line Includes Business Immigration

The Trump administration has called for a record reduction in legal immigration and has taken aim at U.S. businesses that hire foreign professionals. No provision of immigration law has changed, but the myriad statutes and regulations that govern the issuance of business visas are being restrictively interpreted. In 2017, Trump signed the executive order titled Buy American and Hire American (BAHA). Although it does not purport to change immigration statutes — only Congress can do that — it directs government agencies to “rigorously enforce and administer” the immigration laws and “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid” foreign workers. By April 7, 2018, U.S. Customs and Immigration (ICE) had received 236,000 H-1B petitions for the available 85,000 slots.

ICE has increased its I-9 employment verification audits, and businesses have therefore been subject to investigation by Homeland Security agents, substantial monetary fines for I-9 violations and — where there is evidence of intentional disregard of the immigration law — criminal liability. Derek Benner, Acting Executive Associate Director for ICE’s Homeland Security Investigations, told the Associated Press that the agency would focus on criminal cases against employers and on deporting employees who are in the country illegally.

General counsel are advised to fashion an employment-based visa and corporate compliance strategy that includes a plan to protect the recruitment and retention of foreign professionals and ensure corporate compliance with the employment verification rules.