Navigating Immigration Reform for HR Leaders

Organizations rely on their HR leaders intensely to navigate immigration reform. As I field calls from my clients who are anxious about impending changes, the key thing I remind them of is this: all of the potential employment-based visa reforms and bills that have been introduced are speculative at this stage. Nothing has changed yet and businesses should file for the visas they need to staff their business as they normally would.

The filing date for H-1b season is April 1, 2017 when employers can file for the 65,000 visas that will be available for fiscal year 2017/2018. The start date, or date the visas become available, is 10/01/2017. USCIS allows you to file 180 days in advance of visa availability. Any changes to immigration laws will not go into effect prior to April 1, 2017 so the current regulations remain in effect.

Due to high demand and limited number of visas, a lottery is conducted where cases received are entered, a random selection process is conducted and 65,000 visas are allocated. There are typically 240,000-250,000 petitions filed so companies file around three to four times more petitions than needed in order to improve their chances of securing the talent they need. If I was a HR leader for a growing company, I would proceed as usual and maybe even increase filings to possibly take advantage of current regulations that appear to be more employer-friendly than pending reforms.

The other critical topic I’ve been discussing with clients is the travel ban. While the courts have issued a stay on the first travel ban, a new executive order is in progress. It’s a very fluid situation.

HR leaders contact me regularly to ask if employees should travel. I recommend companies avoid sending their employees overseas, unless it’s absolutely necessary. Even though most individuals aren't from the original seven countries on the list, things are changing at the speed of light. Why risk being out of the country when all of this turmoil and uncertainty exists?

Additionally, many consulates are denying/delaying issuance of visas. That means an individual employee in the U.S. may travel and when trying to obtain a visa from the consulate/embassy abroad to re-enter, they can't or are delayed. Consulate staff have wide discretion and there is little that can be done to assist in these situations. USCIS has jurisdiction of immigration within the country so they determine how long you can remain in the U.S. and in what status. The department of state handles jurisdiction outside of the U.S. You need a separate visa to travel here so if a consulate refuses to issue a visa or there is a delay, there is little recourse.

I just spoke to client whose employee traveled for her father’s funeral and is now stuck overseas. There appears to be some misinterpretation of new USCIS policy, which is common. Consulate officers aren't well versed in how USCIS reads things and may apply outdated regulations.

The bottom line: avoid overseas travel if possible and not necessary, and maintain business as usual regarding employment-based visas until new regulation is officially passed.

We’re staying on top of these issues for you and we will do our best to keep you informed. If your organization needs a consultation regarding your impending visa filings, feel free to connect with me via email today.