What Employers Should Expect on Immigration Issues for the Remainder of 2018


USCIS logoOne of the biggest impacts that the Trump Administration has had on the workplace is in the area of immigration. Although the need for foreign workers remains a huge issue for many U.S. employers, particularly those needing skilled technical workers, the Trump Administration has made it more difficult for foreign nationals to obtain the appropriate visas.  Even intracompany transfers are taking longer to process.

The Harris Poll conducted a survey in November and December 2017. Data from that survey indicated:

  • 70% of employers say having a global workforce is very or extremely important to their talent strategy
  • 53% of employers expect to hire more foreign nationals in 2018
  • 85% of employers say the current U.S. immigration system has impacted their hiring and retention strategies
  • 44 percent of employers say U.S. visa applications have become more difficult (up from 35 percent last year)
  • 58 percent of employers say their Requests for Evidence have increased
  • 42% of employers say the biggest change they have noticed over the last year has been increased foreign national anxiety and questions

See here for more from Envoy, a global immigration services provider, regarding the Harris Poll survey.

In today’s low unemployment environment, immigrant workers are one of the few ways employers have to increase their applicant pools—a necessary part of growing their businesses. Nevertheless, given the Trump Administration’s predilections, which begin with the President and his cabinet members, it is likely that employers will continue to struggle in their efforts to hire immigrant labor.

I have spoken with immigration attorneys who confirm that U.S. Citizenship and Immigraton Services have placed increased emphasis on Requests for Evidence, which has significantly slowed down the granting of visas for well-qualified foreign nationals.

Here are some likely immigration actions and decisions in the remainder of the year:

  • By the end of June 2018, the U.S. Supreme Court is likely to issue a decision on the Trump Administration’s travel ban. This decision might clarify some of the limits of the Executive Branch in the area of immigration policy.
  • Congress and the President could strike a deal any time on the Dreamers (undocumented workers brought into the U.S. as children), which is likely to permit Dreamers to remain in the U.S., though with further actions to limit immigration in other areas or to enhance border security.
  • USCIS is likely to continue to scrutinize foreign nationals seeking work authorizations, particularly those seeking H1-B visas.
  • Similarly, there are likely to be more restrictions on visas for family members of foreign nationals already authorized to work in the U.S.
  • 2000px-U.S._Immigration_and_Customs_Enforcement_(ICE)_Logo.svgMore workplace raids by Immigration and Customs Enforcement officers are likely to continue to increase the numbers of workplace raids, leading to more deportations of illegal workers.

For more on these efforts, see here and here.

Given heightened activity in the field of immigration enforcement, employers need to increase their vigilance on complying with immigration laws. Employers also need to be more proactive in seeking the foreign workers they need to be competitive. Here are a few specifics actions that employers should consider:

  • Conduct internal audits of I-9 forms, preferably with the help of outside counsel, so that any problems are properly addressed. A strong audit can provide a “safe harbor” and/or reduce fines if the government later determines that unauthorized workers are in fact employed by the company.
  • Start any visa applications in support of foreign nationals well in advance of the time the company needs the employee to begin working. Leave time to respond to Requests for Evidence, which USCIS is more likely to send than in prior years.
  • Monitor developments on the Administration’s travel ban, Dreamers, and other issues that might impact your workplace. Be prepared to act immediately to comply with any changes.
  • And remember that the U.S. immigration system is based on very detailed regulations, so be sure to use experts with knowledge of the changing immigration bureaucracy.

Increased scrutiny of immigrant visas and documentation impacts not only the ability to hire the types of skilled workers needed in a timely fashion, but also the morale of those already employed. Employers in areas most likely to face workplace raids or I-9 audits should address their employee relations issues as well as the staffing implications of the Administration’s policies.

What immigration issues have you experienced in your workforce recently?

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