We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:

What Will Happen Under the New Trump Administration: Election Aftermath - Business Immigration in a Second Trump Administration

With President-Elect Donald Trump's return to office, the immigration landscape is poised for significant shifts, especially for business immigration. Trump's campaign promises, if fulfilled, could bring restrictive changes to programs like OPT and CPT, increase wage requirements, limit worksite options for F-1 students, and make H-1B and L-1 visas more difficult to obtain.

Key Changes Expected for Business Immigration:

1. OPT, CPT, and STEM OPT Programs: The OPT (Optional Practical Training), CPT (Curricular Practical Training), and STEM OPT extensions for F-1 students may be restructured with stricter guidelines. Potential changes include shorter durations, mandatory higher wages, and more frequent worksite inspections. Students and employers should prepare for tighter rules, potentially limiting the flexibility of these programs.
2. H-1B Visa Overhaul: Trump has suggested that the H-1B visa process may become even more competitive, favoring higher-paying roles. This could mean that only jobs with higher wages would succeed in the H-1B lottery, pushing out lower-wage positions. There's also a risk of increased denial rates, with the possibility that H-1B and L-1 denials could climb to 50%, up from the previous rate of 25%. Employers should plan for more compliance audits and careful case preparation.
3. Republican-Controlled House & Potential Points-Based System: If Republicans retain control of the House, we may see a shift toward a points-based system for green cards, similar to immigration systems in Canada and Australia. This would prioritize skilled immigrants over family-based immigration. Employers hiring high-skilled foreign workers, especially in technology and healthcare, could find it easier to access talent, but those in lower-paying roles may face challenges.
4. Increased Enforcement and Compliance Requirements: 
   Trump's “Hire American” agenda is expected to return, with more audits, investigations, and requests for evidence. DHS, the Department of Labor, and the Department of Justice are likely to ramp up immigration and labor enforcement. This would increase administrative hurdles, slow processing times, and heighten the risk of denials for employment-based immigration applications.

Anticipated Travel and Entry Restrictions:

1. Reinstatement of Travel Bans: Trump has committed to bringing back travel bans similar to those he enacted during his first term. Countries previously banned—including Iran, Iraq, and Yemen—may once again face restrictions, and Trump has indicated that additional countries could be added. New travel bans could take effect as early as Inauguration Day, significantly affecting employers with global operations.
2. “Extreme Vetting” for All Foreign Nationals: The administration is expected to introduce “extreme vetting,” with enhanced security checks, background screenings, and biometrics requirements. This could slow down visa issuance and entry processing for all foreign nationals, potentially delaying employment and travel.

How Employers Can Prepare?

1. Review and Update Compliance Programs: Employers should conduct internal audits of their immigration programs, especially Form I-9 and Labor Condition Applications (LCAs). Maintaining meticulous records and preparing for compliance audits can help reduce risk.
2. Increase Support for Higher-Wage Roles: Given the anticipated preference for high-wage positions in the H-1B lottery and other skilled worker programs, employers may need to focus on higher-paying roles when filing petitions. Developing a clear hiring strategy that aligns with potential immigration restrictions will be essential.
3. Plan for Delays and Denials: Expect longer processing times, increased requests for evidence, and higher denial rates. Employers should prepare to adjust project timelines and consider alternative visa options where feasible.
4. Stay Informed and Seek Legal Guidance: The evolving immigration policies under a new Trump administration may impact recruitment, hiring, and employee retention. Working with immigration attorneys to monitor developments and adjust strategies is crucial to navigating these changes.

Key Takeaways:

Under a second Trump administration, U.S. business immigration is likely to face significant restrictions. Employers should anticipate higher compliance demands, limited access to foreign talent, and more extensive screening procedures. By acting proactively, developing clear immigration policies, and prioritizing high-wage roles, organizations can better withstand these anticipated shifts and continue to access skilled foreign talent.

“Prepare Now: Conduct an H-1B Internal Audit to Ensure Compliance Before the Trump Administration Comes Knocking”

An H-1B audit is a review conducted by the U.S. Department of Labor (DOL) or U.S. Citizenship and Immigration Services (USCIS) to ensure that employers hiring H-1B workers comply with legal and regulatory requirements. These audits examine whether the employer is meeting wage requirements, maintaining appropriate records, and ensuring that working conditions are consistent with H-1B program rules. A failed audit can lead to penalties, including fines, revocation of H-1B approvals, and even disqualification from future H-1B sponsorships.

Steps to Create an Internal H-1B Audit with Your Company's Immigration Counsel:

Conducting an internal H-1B audit proactively with your immigration counsel can help ensure compliance and reduce risks. Here's a step-by-step guide:

Engage Your Immigration Counsel Early: Start by consulting your immigration attorney to develop an audit plan tailored to your company's needs. Your counsel can guide you on the specific records to review, recent policy changes, and best practices for maintaining compliance.

Identify Key Areas for Review: Together with your counsel, identify the main areas of H-1B compliance. These typically include:

• Labor Condition Application (LCA) Compliance: Review wage and working condition commitments made in the LCA.
• Public Access Files (PAFs): Confirm that PAFs are properly maintained and contain all required documentation, such as the certified LCA, wage statements, and evidence of posting notices.
• Record-Keeping and Wage Payments: Check payroll records to ensure H-1B employees are paid the required wage and within the specified timelines.
• Employee Job Duties and Locations: Verify that H-1B employees are working in the locations and job roles listed in their petitions. For any changes, ensure proper amendments or updates were filed.

Review Public Access Files (PAFs): Conduct a thorough review of PAFs, ensuring they are complete and contain:

• The certified LCA
• Documentation showing wage calculations for each H-1B employee.
• Evidence that the LCA notice was posted or distributed electronically.
• Any additional required documents, including statements on employee benefits and records of correspondence with DOL.

Examine Payroll and Wage Records: 

Verify that your H-1B employees are paid the wage listed in their LCA, ensuring compliance with both minimum wage and prevailing wage requirements. Review payroll records for each H-1B worker to confirm accuracy and timeliness of payments, including overtime if applicable.

Verify Employee Work Locations and Job Duties:

Confirm that each H-1B employee is performing the job duties and working at the location(s) stated in the H-1B petition. For any substantial changes in job role or location, work with your immigration counsel to determine if an amended petition is necessary.

Document Internal Communication and Procedures:

Record each step of the audit process, and document any findings or issues. If you discover potential compliance issues, work with your counsel to resolve them and document corrective actions. This internal record can show a proactive approach to compliance in case of a government audit.

Train HR and Managers:

Conduct training for HR staff and managers who work with H-1B employees. This training should include best practices for compliance, identifying changes that might trigger a need for an amended petition, and ensuring that H-1B employees are aware of any limitations in their role.

Develop a Compliance Calendar and Set Regular Audits:

Protecting Your Path to U.S. Citizenship: Preserving Residency for the N-400 and Using a Reentry Permit While Working Abroad

If you're a green card holder working overseas, it's essential to take steps to preserve your U.S. residency for naturalization eligibility. Long absences can disrupt your ability to file for citizenship (N-400) and could even jeopardize your green card. Filing for a reentry permit and, in some cases, an N-470 application to preserve residency for naturalization, can help protect your U.S. status.

Why Preserving Residency Matters for Naturalization?

For green card holders aiming to become U.S. citizens, continuous residence is a critical requirement. Spending extended periods abroad can break your continuous residence, impacting your ability to file for naturalization and delaying your eligibility. To qualify, you must meet specific residency requirements, which generally means being physically present in the U.S. for at least half of the required statutory period (usually five years, or three years for those married to U.S. citizens).

Reentry Permit: Protecting Your Green Card While Working Overseas:

A reentry permit allows you to return to the U.S. after long absences without being viewed as having abandoned your residency. Green card holders who anticipate being abroad for more than a year but less than two years should apply for a reentry permit before leaving the U.S. This permit can safeguard your green card by demonstrating your intent to maintain U.S. residency.

Preserving Residency with the N-470 Application:

In some cases, if your work abroad serves the U.S. government, a U.S.-based nonprofit, or another qualifying entity, you may be eligible to preserve your continuous residence for naturalization purposes by filing an N-470 application. This is especially helpful for those whose extended stays abroad would otherwise disrupt their residency requirements for naturalization.

Filing an N-470 is complex and requires careful planning, as the timing and qualifications are specific. This application is best handled by an experienced immigration attorney to ensure eligibility and compliance with the requirements.

Benefits of the N-470 and Reentry Permit Combo:

By combining the N-470 with a reentry permit, green card holders can simultaneously protect both their permanent residency and their eligibility for U.S. citizenship. This strategy is ideal for those on long-term overseas assignments who still wish to pursue U.S. naturalization.

Our Success with N-470 and Reentry Permits:

With extensive experience in helping clients file N-470 and reentry permit applications, we understand the nuances and importance of properly preparing these petitions. Successfully filing these applications requires attention to detail, precise timing, and a strong understanding of immigration law. Given the complexities, we strongly recommend consulting an experienced immigration attorney to maximize your chances of maintaining both your green card and your path to U.S. citizenship.

Securing your status while working abroad doesn't have to be a challenge-plan ahead, file strategically, and work with experts to protect your residency and future in the U.S.

Sincerely,

Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.