Immigration

Building the workforce of today and tomorrow means being able to hire, train and retain the employees who have the skills to get the job done no matter where they were born or where they are in the world. From temporary, low-skilled workers to foreign graduates of local universities to globetrotting senior executives, employers need efficient, predictable and flexible immigration policies that enable them to effectively manage talent and compete in a global economy.  

​Immigration has historically been a difficult issue for nations to navigate, and that is no different today. Headlines from around the world signal instability, unpredictability and tightening enforcement —from legislative gridlock in Washington, D.C., pending U.S. regulatory changes aimed at preventing fraud and abuse of visa programs, a patchwork approach to employment verification in the United States, scrutiny of international labor recruitment and an ever-evolving landscape of policies worldwide make an employer’s ability to manage global talent—both in the United States and abroad—as uncertain as ever.

Employment-Based Immigration in the United States

It is widely acknowledged that the U.S. immigration system needs an overhaul. Demand for temporary H-1B visas far outstrips supply, leaving employers without options to hire the foreign-born graduates of America’s top universities; green card backlogs frustrate talented professionals who may have to wait a decade or more to settle permanently in the United States; and even fewer options exist for employers seeking to hire low-skilled workers. With 74 percent of employers reporting that the ability to obtain visas in a timely, predictable and flexible manner is critical to their business objectives (Employer Immigration Metrics Survey, Council for Global Immigration, 2016), fixing the U.S. immigration system has never been more important.


Outlook: Congress failed to pass comprehensive immigration reform under both Presidents George W. Bush and Barack Obama. In November 2014, President Obama undertook a series of executive actions designed to provide relief for employers and certain long-term undocumented employees. President Donald Trump has vowed to make a number of changes when it comes to immigration policy, including a focus on national security and interior enforcement and changes to our employment-based immigration system.  On Wednesday, January 25, President Trump signed two executive orders: one focused on a physical wall at the southern border, and the other focused on public safety, including cutting off funding for sanctuary cities. In addition, President Trump has signed three versions of executive orders/proclamations that have become none informally as the “travel ban.” These orders intended to ban entry for foreign nationals from several countries, pause refugee programs, and increased visa interview requirements, among other items. Most recently, on Sunday, September 24, 2017, President Trump issued a proclamation entitled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats." Ultimately, none of the travel ban orders are currently in effect and the latest order is the subject of ongoing litigation.

Earlier in the year (on April 18, 2017) President Trump issued an executive order titled "Buy American and Hire American."  Under this order, the executive branch promotes policies to maximize the use of goods, products, and materials produced in the United States and aims to rigorously enforce and administer the laws governing entry into the US of workers from abroad. Specific to employment-based immigration the executive order tasks the Secretaries of State, Labor, Homeland Security and Justice, to propose recommendations to prevent fraud and abuse in immigrant and nonimmigrant visa programs. To prevent fraud in the program the Secretaries will put forward reforms to award H-1B visas to the most skilled or highest-paid applicants, changing the current lottery system. Ultimately, any changes in the way H-1Bs are allocated will require legislative action by Congress.

On September 5, 2017 the Trump Administration announced that the Deferred Action for Childhood Arrivals (DACA) program will be phased out as of March 5, 2018. DHS issued a memo and FAQs in connection with the announcement. Here's key information employers need to know:

What does this mean for current DACA recipients?
Current recipients will be able to work until the expiration of their current employment authorization document (EAD). If the EAD expires after March 5, 2018, employers should be aware that DHS might terminate that EAD at any time. If eligible for an extension, DACA recipients who filed by October 5, 2017 will have their extension processed.

What does this mean for individuals seeking to apply for DACA for the first time?
USCIS will not process DACA applications for new applicants received after September 5, 2017. Pending applications received on September 5, 2017 or earlier will still be considered on a case-by-case basis.

What about advance parole?
USCIS will not approve pending I-131s related to DACA and will refund fees. USCIS will not accept new I-131s filed related to DACA. Currently valid advance parole will "generally" be honored for the stated validity period.

Is there a grace period for DACA recipients after March 5, 2018?
No. USCIS states that a DACA recipient whose EAD expires "is no longer considered lawfully present in the United States and is not authorized to work."

On Sunday, October 8, 2017 President Trump released the administration's Immigration Principles and Priorities, stating that "The Trump Administration is ready to work with Congress to achieve three immigration policy objectives to ensure safe and lawful admissions; defend the safety and security of our country; and protect American workers and taxpayers." The executive summary of the principles and priorities can be found here, and the full text can be found here. Read CFGI and SHRM statement on the principles, noting that the priorities and principles fall far short of the fair, innovative and competitive immigration system for which we advocate.

On the state front, California Governor Jerry Brown has signed the Immigrant Worker Protection Act (AB 450) into law. The intent of the law is to prevent federal immigration enforcement action at a worksite from violating the due process, labor and privacy rights of employees. However, certain provisions could create confusion for employers trying to comply with both federal and state law, including restrictions on employers from allowing ICE agents to access workplace without a warrant (which could require multiple employees at the employers' place of work to know federal law regarding what ICE agents may access) and requirements for notice of immigration enforcement actions to employees within 72 hours.

On the federal front, Congress could also consider reform of both the essential worker and high-skilled, employment-based immigration systems. These efforts could include possible priorities to hire American workers before nonimmigrant workers or delaying the issuance of green cards until employers hire first from the domestic pool of unemployed immigrant and native workers, tightening or eliminating certain J-1 visa programs, creating an immigration commission that may look to reduce immigration levels, suspending immigration from terror-prone regions where vetting cannot safely occur, implementing a full exit system as well as possibly renegotiating NAFTA or withdrawing from the deal, which ultimately could impact admissions and visas for people temporarily coming to the United States from Mexico or Canada.

To learn more about Employment-based immigration in the United States, please read our newly updated guide, Immigration 101 Inside the U.S. Employment-Based Immigration System



Electronic Employment Verification

Effective worksite enforcement is central to immigration reform. While U.S. employers are committed to hiring only work-authorized individuals, today they are confronted with a patchwork of federal and state employment verification requirements that is confusing and can be defeated by workers presenting stolen identities. While all U.S. employers must complete a paper-based Form I-9 to establish an employee’s identity and authorization to work in the United States, some may also use E-Verify, the U.S. Citizen and Immigration Services’ electronic employment verification system. Although E-Verify is a voluntary federal program, a number of states have enacted laws requiring some or all employers to participate in the system. The federal government also requires participation of most federal contractors.  


​Outlook: The federal government already mandates certain federal contractors to use E-Verify. In addition, there are approximately 21 states and a number of localities that require the use of either E-Verify or a specified alternative for some or all employers. Bills in both the House of Representatives and Senate have been introduced in recent years to make E-Verify a mandatory national electronic verification system for all employers. Most recently, on October 25, the House Judiciary Committee passed the Legal Workforce Act which would mandate E-Verify nationwide. Given that Congress has reauthorized the E-Verify program for years and established mandated requirements for the system’s use by federal contractors, and the fact that various state and local requirements now compel certain employers to use the system to verify the work eligibility of new hires, it is conceivable that a mandatory E-Verify program will garner support in Congress as part of a series of measures on immigration reform.

International Labor Recruitment

In an attempt to stop human trafficking, various proposals have been advanced at the international, federal and state levels to regulate international labor recruitment. In some cases, voluntary guidelines have been established to encourage employers to utilize only certified recruiters, while in other cases, such as with the United Kingdom’s Modern Slavery Act and the U.S. Federal Acquisition Regulations, governments are requiring employers to ensure there is no abuse of foreign labor within their supply chains.

Outlook: Increasing public awareness of human trafficking is putting pressure on governments to act. They, in turn, are looking to employers to help monitor and protect against labor abuses. As global competition for talent accelerates, employers will need to stay on top of this rapidly evolving area of the law.​