The federal government keeps changing US immigration rules, often without notice. This has created extra stress for employees and employers, especially smaller ones without teams and resources dedicated to navigating the changes. But lawyers tell HR Brew that there are steps employers can take to protect themselves and support their employees.
“Everyone’s wanting to be above board,” J. Mike Sevilla, an immigration attorney and partner at Dorsey and Whitney told HR Brew. “It’s probably impacting smaller employers in a larger way, just because of the resources allocation required to kind of spend time in, in terms of figuring out a complex situation.”
Changing the rules. “It feels like every day there’s a new announcement, there’s a new policy,” Stephen Blaker, immigration attorney and partner at law firm Blaker and Grant, told HR Brew. “On a Monday you could file your naturalization application and then be told on Wednesday that there’s a new civics test.”
Perhaps the most publicized recent rule is the administration’s changes to H-1B visa, increasing the application fee for new holders from $4,500 to $100,000. The US grants approximately 85,000 H-1B visas a year, largely to tech and healthcare workers. The government hopes the change encourages employers to hire US-born workers instead of foreign talent, HR Brew previously reported.
Since the announcement, the government has updated its language several times, resulting in panic among employers. Sevilla said he’s received “questions from clients about what exactly it means, and we’ve gotten some clarity on some points, but there’s still certain areas where we’re waiting on practical guidance.”
“Employers have really tried to stay on top of what’s the latest. And certainly with litigation, there are last minute changes based on how a judge will decide,” Sevilla said. For example, the administration has, in recent months, pulled the temporary protected status (TPS) for thousands of immigrants from Syria, Venezuela, and Haiti, leading many employers to seek legal counsel.
Also in September, the administration announced a new rule for non-immigrant visa applicants, causing confusion for many immigrants and their employers, according to Blaker. Previously, immigrants who needed to update their EO-1 or H-1B visas could visit their closest consulate or embassy; now, they must return to their country of origin to complete the process, potentially keeping them from their US jobs for weeks.
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“It is a major headache,” Blaker said, for both employers and employees, explaining that it’s especially cumbersome for Indian nationals, who hold 71% of H-1B visas. “Now they are basically required to travel back to India. So there’s two headaches there.”
Realities for employers. These new realities could have some employers on edge. “The difficulty is that these policies aren’t always announced,” Blaker said, noting that sometimes the American Immigration Lawyers Association only becomes aware of a change because of adjudication changes.
Sevilla also relies on resources like US Citizenship and Immigration Services [USCIS] and SHRM to stay abreast on rule changes.
Blaker recommended that employers understand their legal rights and have a plan and point person in case ICE comes to the office. “The employer only has to allow access to the public areas of the office,” he said. “So if ICE comes and wants to visit a full office and visit somebody’s private office or a storage room, the employer doesn’t have to allow ICE to access any of that unless there is a warrant that is signed by a judge.”
Foreign-born workers, no matter where they are from or what industry they work in, are likely very stressed. Employers should show them that they’re supported, Blaker said. Monthly town meetings, he said as an example, can be a good way to keep employees informed about policy changes.
“Employers are having to go the extra mile to provide resources, to provide those town halls, or to let employees know that the employer has their back,” Blaker said. “Nobody can check themselves fully at the door and then just be a worker. We’re always our full selves, and so it certainly creates stress and anxiety if you have this looming over your head.”