Attorneys are still deciphering scant guidance from federal agencies on how President
The proclamation went into effect Sunday after a surprise release that set off panic among workers who rushed to get back into the US before they would be hit with the fee.
The White House clarified over social media and immigration agencies confirmed in follow-up guidance that the new costs wouldn’t apply to current visa holders or petitions already submitted, reassuring some users but leaving significant questions unanswered.
The fee was added days before the release of a long-awaited proposal to overhaul the annual lottery for the 85,000 special occupation visas under a statutory cap, showing that the Trump administration has turned the focus of its immigration agenda to the employment-based visa system. But unlike that lottery proposal, which must go through a public comment period before release of final regulations, the new $100,000 fee will have an immediate impact with many details still being spelled out by the administration.
Attorneys say the proclamation appears to apply immediately to employers in the education and nonprofit sectors exempted from the annual cap. The Trump administration hasn’t confirmed that interpretation though, and it’s unclear how those employers could seek a “national interest” exemption allowed under the proclamation or where they would even submit a payment if a waiver isn’t approved.
“Why on earth I’m having to figure something out through a fricking Tweet is beyond me,” said Kathleen Campbell Walker, chair of the immigration practice at the law firm Dickinson Wright LLP.
Cap-Exempt Employers
Most employers who use the H-1B program file petitions to sponsor workers with the Department of Homeland Security each spring after they’re selected in an annual lottery. The White House said the $100,000 fee, designed to address alleged abuses in the H-1B program, would apply only to petitions filed after the upcoming lottery.
That clarification gave some reassurance to most users, at least in the short-term. But employers exempt from the lottery, including colleges and hospitals affiliated with research institutions, can petition for workers through the visa program throughout the year.
Immigration attorneys say that absent further guidance from the Trump administration, those entities should assume they’re subject to the new fee.
On college campuses, the additional payment will make it harder to bring in faculty for fields like nursing, engineering, and other STEM courses, said Sarah Spreitzer, vice president and chief of staff for government relations at the American Council on Education.
“I worry we’re not going to be able to offer those courses or as many spots for students to take those classes,” she said.
Employers navigating the H-1B petition process would typically pay a $215 fee to US Citizenship and Immigration Services to enter the lottery and—depending upon their size and the makeup of their workforce—several thousand dollars in additional fees when submitting petitions for foreign workers.
State Department guidance over the weekend indicated the DHS, which oversees USCIS, would approve exemptions to the fee, and many expect it will handle payment of fees as well. The agency didn’t respond to questions about that process.
California’s attorney general said Tuesday he is examining whether the proposed changes to the H-1B program violate the federal Administrative Procedure Act, which prohibits sudden regulatory changes without a period of public notice.
Student Visa Holders
About 400,000 international students were approved for F-1 visas last year, many of them with hopes of eventually securing H-1B status after graduating from college in the US.
Those students should be able to apply to switch to H-1B status within the US since the proclamation structured the fee as a condition of entry, said Danielle Goldman, co-founder and CEO at Open Avenues Foundation, which helps universities and businesses partner to sponsor workers for cap-exempt visas.
Risks could come, though, if they need to leave the US and re-enter on H-1B status.
The bottom line is “change-of-status cases remain viable, but international travel is essentially off the table until we see further clarification,” she said.
Exemptions Sought
The White House framed the proclamation as addressing abuses in the H-1B program, which it said undermined American workers. The fee would give more certainty to businesses who want to bring in high-skilled workers but were “trampled on by abuses of the system,” said spokeswoman Taylor Rogers.
“President Trump promised to put American workers first, and this commonsense action does just that by discouraging companies from spamming the system and driving down American wages,” she said.
Rogers told Bloomberg News this week that physicians may qualify for exemptions offered through the proclamation. The White House didn’t respond to questions for further clarification of the proclamation.
If cap-exempt employers aren’t totally exempt from this fee, they’ll look for national interest exemptions for specialty occupations like doctors, nurses and other critical occupations we hope to see national interest exemptions for occupations like doctors, nurses, and educators that are critical to the US, Goldman said.
In Ohio, cap-exempt H-1B visas are critical for filling shortages of healthcare providers, said Asafu Suzuki, an immigration attorney at Vorys, Sater, Seymour and Pease LLP. But the lack of clarity on the fee has been unsettling for businesses trying to navigate immigration policies that have rapidly shifted, she said.
“From an employers’ perspective, I don’t think anyone wants their petition or their employee to be the test case,” Suzuki said.
The impact of the proclamation could be further narrowed as its implementation is clarified, said Shev Dalal-Dheini, director of government relations at the American Immigration Lawyers Association.
“We’re seeing the playing field change almost hourly it seems like,” Dalal-Dheini said.
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