2017's Influential Immigration Developments

Dating back to the days of the campaign, it was clear that Donald Trump had immigration policy in the crosshairs.  But the absolutely dizzying pace of changes has made this a year to remember (or try your best to forget).

2018 is surely going to see dramatic changes as the administration turns its eye towards H-1B overhaul and immigration reform.  But before January rolls forward with those developments, let reflect on some of the most notable developments in immigration law during this first year of the Trump presidency.

ICE Removal Directive

The administration claimed publicly that its priority was in locating criminal aliens and deporting immigrants who posed a public safety threat.  Yet, an internal ICE memo came to light which directs action against all undocumented immigrants, regardless of criminal histories.  The directive also instructs agents to consider release and parole only sparingly.

DACA and DAPA

September saw the end of DACA--- a deportation protection program for young unauthorized immigrants.  Brought to the US as children by their parents, the "Dreamers" continue to be at risk of deportation unless Congress comes up with a legislative solution.  Such a solution has been a debated issue as part of the ongoing budget negotiations. As of Sept. 4, there were 689,821 people with valid DACA status and that number is dwindling daily.  The program is being phased-out currently and requests for extension of DACA status ceased on September 5th.

The fate of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program was sealed in June when then Department of Homeland Security Secretary John F. Kelly signed a memorandum completely rescinding the program.  

The End of Deference

Though a petitioner has always had the burden of proof to document eligibility for a particular visa, deference was exercised regarding facts that remained unchanged from the original, underlying application.  No longer.  Each application will now be independently considered and decided on its individual merits, a move that will likely increase processing times and requests for evidence.

Premium Processing Suspended for Much of 2017

The unexpected suspension of H-1B premium processing sent visa seekers and immigration attorneys scurrying right before the start of the visa lottery. The 15-day expedited program is viewed as a near necessity for meeting employment start dates, residency training program enrollment dates, as well as coordinating international travel needs for business.  While the program was resumed in stages, its absence for a good part of the year made for many missed deadlines, lost business opportunities, and overall angst.

Interviews for Employment-Based Adjustment Applicants

Employment-Based applicants historically enjoyed processing their I-485 cases without interviews. Eligibility for adjustment was, instead, documented through the use of supporting evidence.  It came as a surprise to see a new policy implemented in October mandating local adjustment interviews for employment-based applicants and their family members (yep, even kids). While delays are expected to mount as a result, we await publication of just how much fraud this extra step really uncovers.

Expected Revocation of H-4 EADs

Details remain unclear, but it's evident that the Trump administration plans to stop granting work permits to spouses of H-1B holders.  The overturn of this 2015 rule will impact thousands of employed spouses and may even push some to give up on waiting for priority dates.

Travel Bans

Signed on January 27th, the original travel ban set off massive airport protests and a series of legal battles.  Little did we know then that it would go through three iterations and close out the year nearly as controversial as when it began.  Version 3.0 is now in full effect and will play out through the appeals process, likely landing back at the Supreme Court in early 2018.

Level One RFEs

Shortly after the H-1B lottery selection process, a strange pattern of RFEs began cropping up.  Soon the USCIS had issued more than 85,000 “requests for evidence” to applicants for H-1B visas.  This is the highest number since 2009 and a 45 percent increase over the comparable period in 2016. No official numbers have been yet provided regarding the actual denial rate.  Will this policy result in what is likely the true purpose behind these RFEs--- deterring employers from filing for H-1B visas?  Or will the demand for visas continue to outpace supply?

Hire American, Buy American

First described as a "nothingburger," the EO signed in April has been anything but.  While no rules have actually been promulgated, the EO seems to be at the core of many of the employment-based immigration changes listed throughout this article. Will the future of immigration policy continue to run below the radar as we have seen in 2017?  If the Unified Agenda is any true indicator, we expect to see proposed regulatory changes as early as March.  The Raise Act, the border wall, travel ban litigation---  we will continue to cover these and other stories in what is expected to be another bumpy ride of a year.