Forthcoming publication in Vol. 44, Issue 3 written by Kevin Miner and Sarah Peterson
In a forthcoming article, the authors analyze changes made to U.S. high-skilled immigration policy during the first year of the Trump administration and compare the types and methods of policy change to what occurred during the first year of the Barack Obama and George W. Bush administrations.
The article asserts that the approach taken to employment-based immigration during the first year of the Trump administration is a dramatic departure from past administrations, and explains the ways in which the Trump administration has used the sub-regulatory process to implement restrictions on high-skilled immigration and to discourage employers from utilizing the employment-based immigration system.
The authors note that this has occurred despite that neither statutory nor regulatory immigration law has changed during this time frame. Instead, these changes have been accomplished through a combination of sub-regulatory actions, including issuance of Executive Orders, rescission of long-standing policy memoranda of the United States Citizenship and Immigration Services (USCIS), and changes to adjudication policy that appear to be driven from headquarters, but where the agency has not disclosed any such internal policy directives.
The most important action discussed is the April 18, 2017 “Buy American, Hire American” Executive Order “which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws.” The article explains that while an Executive Order cannot modify existing statutes or regulations, the Order does clearly direct the agencies involved with administering immigration programs to approach such administration from the standpoint of enforcement, rather than providing a service to regulated parties.
The article further discusses a number of agency memoranda that have been issued or repealed since issuance of that Order, including a policy memorandum relating to adjudication of H-1B petitions for computer programmers, a policy requiring employment-based green card applicants to attend an in-person interview at a local USCIS office, and rescission of prior guidance that had instructed USCIS officers to provide deference to prior determinations of eligibility in the adjudication of petitions for extension of nonimmigrant status.
The authors conclude by comparing these changes to high-skilled immigration policy changes that were implemented during the first year of prior administrations and note that prior administrations had primarily issued procedural clarifications and changes that were intended to improve application processing.
These included expansion of the premium processing program where employers could elect to pay additional fees for faster processing of applications, implementation of guidance clarifying that H-1B workers who change employers under “H-1B portability” are still able to travel abroad and return to the U.S. while that change is in process, and providing guidance reducing the impact of a merger, sale, or acquisition of a company on the immigration process of that company’s employees.
Full article available in Volume 44, Issue 3.
 Exec. Order No. 13788, 82 Fed. Reg. 76 (Apr. 21, 2017).