Diem Ngo and Liane H. Cooney
The Trump administration has made several changes to regulations, policies and practices that have affected business immigration. Specifically, President Trump’s executive order “Buy American, Hire American” directs multiple federal agencies, including the US Department of State (DOS), the US Department of Labour (DOL) and the US Department of Homeland Security (DHS) to propose new rules and issue new guidance to “protect the interest of US workers in the administration of our immigration system, including through the prevention of fraud and abuse”.
The following initiatives have been implemented:
- US Citizenship and Immigration Services (USCIS) has increased scrutiny of H-1B petitions for entry-level positions and announced plans to target certain H-1B employers for site visits.
- The DOL has announced that it will conduct more investigations in order to enforce labour protections among non-immigrant visa programmes, including (but not limited to) the H-1B, H-1B1 and E-3 programmes.
- USCIS has announced that employment-based green card applicants will be subject to in-person interviews from October 1 2017. Under existing policies, such interviews are generally waived.
- The DOS has introduced additional questions for visa applicants who are subject to additional screening, including the applicants’ social media handles for the past five years and personal information for the past 15 years.
- In March 2017 Trump signed an updated executive order to suspend the entry of nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen into the United States for 90 days. The order was enjoined in the courts, however, the Supreme Court partially reinstated the ban in June 2017.
- On September 24 2017 Trump signed a new proclamation creating travel restrictions for nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia, which is effective from October 18 2017.
Domestic law
What legislation and regulations govern immigration in your jurisdiction?
US immigration laws and regulations are codified under the Immigration and Nationality Act. The federal departments and agencies involved in overseeing immigration programmes issue regulations in Titles 6, 8, 19, 20, 22, 28, 29, 42 and 45 of the Code of Federal Regulations.
International agreements
Has your jurisdiction concluded any international agreements affecting immigration (e.g. free trade agreements or free movement accords)?
Hundreds of thousands of professionals seeking to work in the United States rely on the immigration provisions for highly skilled professionals contained in the North American Free Trade Agreement. The treaty was implemented in 1994 by the United States, Canada and Mexico.
Chapter 16 of the North American Free Trade Agreement delineates the following categories of business persons:
- business visitors engaged in international business activities;
- traders and investors who carry on substantial trade in goods or services between their own country and the country that they wish to enter;
- intra-company transferees employed by a company in a managerial or executive capacity or a capacity that involves specialised knowledge and are transferred within that company to the territory of another party; and
- certain categories of professionals who meet minimum educational requirements or possess equivalent credentials and who seek to engage in business activities at a professional level.
The United States, Canada, and Mexico are undertaking formal renegotiations of the North American Free Trade Agreement. Trump is considering withdrawing the United States from the agreement, which would have significant consequences for multinational companies and highly-skilled foreign workers in the United States.
The United States also maintains other treaty visas for:
- Australian citizens (E-3 visas for certain specialty occupation professionals from Australia); and
- Chilean and Singaporean citizens (H-1B1 professional work visas).
Further, nationals of countries that maintain a treaty of commerce and navigation with the United States are eligible for treaty trader (E-1) or treaty investor (E-2) visas. The list of treaty countries for each visa category is available on the DOS website. Applicants must fulfil the criteria for the applicable category and must be coming to the United States to:
- engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the United States and the treaty country; or
- develop and direct the operations of an enterprise in which the applicant has invested a substantial amount of capital.
Regulatory authorities
Which government authorities regulate immigration and what is the extent of their enforcement powers?
The DHS, through USCIS, provides immigration oversight to people who apply to stay in the United States on a temporary or permanent basis. USCIS is responsible for:
- granting US citizenship;
- approving all immigrant and non-immigrant petitions;
- authorising permission to work in the United States;
- issuing extensions of stay; and
- changing or adjusting individuals’ status while in the United States.
US Customs and Border Protection (CBP) and US Customs Enforcement (ICE) are also both under the purview of the DHS. CBP:
- oversees all US ports of entry;
- determines the authorised period of stay for individuals coming to the United States;
- conducts immigration inspections; and
- patrols US borders.
ICE enforces federal laws governing border control, including with regard to removal processes, customs, trade and immigration.
The DOS oversees all US diplomatic missions, consulates and embassies abroad. These consulates and embassies have the authority to issue US passports and grant non-immigrant visas and immigrant visas. In early 2017, the Trump administration was considering moving the issuance of visas, passports and other travel documents from the DOS to the DHS.
In general, the DOL works to ensure that the admission of foreign workers to work in the United States will not adversely affect the job opportunities, wages and working conditions of US workers. The DOL:
- manages job order postings with the state workforce agencies;
- issues prevailing wage determinations; and
- certifies labour condition applications (LCAs) required for H-1B, H-1B1 and E-3 visa petitions.
It is also responsible for overseeing the Programme Electronic Review Management (PERM) labour certification programme so that employers may hire foreign workers to work permanently in the United States.
Can the decisions of these authorities be appealed?
The Immigration and Nationality Act allows visa applicants who have been denied a visa for a particular ineligibility to apply for a waiver of that ineligibility. The DHS adjudicates all waivers of ineligibility. However, waivers are discretionary, meaning that there are no guarantees that the DHS will approve a waiver. If the waiver is approved, then the visa will be issued.
Petitioners and applicants for certain categories of immigration benefits, such as most employment-based immigrant and non-immigrant visa petitions (Forms I-129 and I-140), may appeal a negative decision to the USCIS Administrative Appeals Office (AAO).
Under the Interim Final Rule2015, an employer may use the general appeal procedures (under 20 CFR 655.61) to appeal an adverse PERM labour certification decision made by the DOL.
Recent case law
Has there been any notable recent case law regarding immigration?
A USCIS AAO decision imposes new requirements on employers of H-1B workers who change worksites. In Matter of Simeio Solutions (26 I&N Dec, 542 AAO 2015), the court decided that employers must file an amended H-1B petition before an H-1B worker may begin working at a new worksite outside of the metropolitan area indicated on the initial petition. Previously, employers were required to file a new application only in the event of a change in position. In July 2015 USCIS adopted the decision as binding and issued final guidance on how the ruling applies in various circumstances.
In the April 2017 Matter of I-Corp, another USCIS AAO decision, the court addressed wage standards for foreign workers. The court upheld the denial of an L-1B visa on the basis that:
- the proffered wage was below the minimum wage in the state where the employee was to work; and
- the employment agreement thus violated the Fair Labour Standards Act.
Business visitors
Visa requirements
In what circumstances is a visa required for business visitors?
Visitors who wish to enter the United States for a temporary stay to engage in business activities of a commercial nature must apply for a B-1 visa.
Restrictions
What restrictions are imposed on business visitors in terms of the work that they may undertake and their period of stay in your jurisdiction?
Business visitors must show proof of residency abroad and their intention not to abandon their residence. In addition, they cannot participate in gainful or productive employment and must remain on their foreign payroll.
Business visitors may generally:
- attend business meetings;
- take orders for goods manufactured outside the United States;
- tour a company facility;
- attend a trade show, conference or seminar; and
- negotiate contracts or litigation.
Business visitors may visit the United States for up to six months. A visit extension for an additional six months is possible at the discretion of the immigration authorities. Requests for an extension must be made to the US Citizenship and Immigration Services before the visitor’s existing Form I-94 expires.
Application and entry
How are business visitor visas obtained and what is the typical turnaround time?
A B-1 visa application must be submitted at a US consulate or embassy. Processing time may vary from one consulate to another, however, B-1 visas are typically issued within one to two weeks from the time of submitting the application.
Are any visa waiver or fast-track entry programmes available?
Under the visa waiver programme, citizens of 38 countries are eligible to travel to the United States visa free, for up to 90 days per entry. They must remain on their foreign payroll and cannot engage in productive work activities during their stay.
Visa-waivered nationals must register with the Electronic System for Travel Authorisation (ESTA) and obtain approval from ESTA before travel. Visa waiver admission is granted on arrival in the United States. Extensions of stay beyond 90 days per entry are generally not possible under the programme. US border officials may become suspicious of frequent or repeated long-term visits to the country.
Short-term training
What rules and procedures apply for visitors seeking to undertake short-term training in your jurisdiction?
Foreign nationals may be eligible to receive or conduct training with a B-1 visa or visa-waiver status, depending on:
- the duration of their stay;
- the number of trips required; and
- the actual activities performed.
B-1 visa holders and visa-waived nationals may generally receive training, observe or shadow other employees and provide short-term product knowledge transfer or new product introduction – where it does not lead to a product being sold – as long as it is not their primary job function (ie, the individual is employed as a trainer).
In addition, foreign nationals may be eligible to conduct training with a B-1 visa where an after-sales agreement is in place and conducting training is included as part of the contract of sale for commercial or industrial equipment. A copy of the contract must be provided in support of the B-1 visa application.
Anything beyond these activities may require a work-authorised visa.
Transit
In what circumstances is a transit visa required to pass through your jurisdiction? How is it obtained?
There are no transit facilities in the United States. All foreign nationals must comply with the controlling regulation for their country of origin in order to enter the United States.
Sponsored immigration
New hires
What sponsored visas or work permits are available to employers seeking to hire foreign nationals in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?
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