Immigration Issues in the Workplace: What to Expect in 2020

By Marylou Fabbo - Skoler, Abbott & Presser, P.C.

January 13, 2020

Developments in employment-based immigration during the decade are likely to be influenced by this year’s federal elections. It will be some time before we know how that will look over the next 10 years. As for what to expect in 2020 itself, here are some of the issues that organizations that employ, or are considering employing, foreign workers should be aware of.

H-1B Petitions – Electronic Registration Required

The U.S. Citizenship and Immigration Services (USCIS) has announced a new electronic pre-registration process for the upcoming H-1B lottery. That pre-registration process will allow employers to enter the lottery for the 85,000 visas that become available Oct. 1, 2020, without having to prepare a full petition and supporting documentation. Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register. USCIS will open an initial registration period from March 1 through March 20, 2020. As usual, it’s just about guaranteed that the number of petitions will greatly exceed the visas available. Therefore, an H-1B random lottery process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Employers who plan to petition for H-1B visas should immediately put the March dates on their calendars.

Is DACA is Over?

The United States Supreme Court is likely to decide this year whether the Trump Administration may legally end the Deferred Action for Childhood Arrivals program (DACA), which provides deportation protection and work permits to undocumented immigrants who came to the U.S. as children. The Supreme Court heard oral arguments on the matter in November 2019 and is expected to issue its ruling in June. If DACA ends, employees in a C-33 immigration status may not be able to continue employment and/or renew DACA status. It’s also possible, however, that Congress will enact protective legislation in response to an adverse Supreme Court decision.

H-4 Spouse’s Ability to Continue Working in Flux

The Trump Administration has expressed its intent to rescind the H-4 program that provides work permits to certain spouses of H-1B visa holders, and that is expected to come to fruition in 2020. Save Jobs USA, a tech-workers advocacy group, filed a lawsuit maintaining that the federal government overstepped its authority when establishing the H-4 Employment Authorization Document (EAD). According to Save Jobs USA, H-4 status could result in employment for 180,000 spouses of H-1B holders, which would then result in unfair competition for tech jobs. The lower court initial dismissed Save Jobs USA’s lawsuit and the advocacy group filed an appeal. In a recent decision, the U.S. Court of Appeals for the District of Columbia Circuit sent the decision over the program’s cancelation back to a lower court. As a result, the fate of H-4 EAD, which allows the spouses of H-1B visa holders to work, is still up in the air.

Temporary Protected Status Continued for Some

In 2020, Temporary Protected Status (TPS) beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan will continue. A notice was issued in November 2019, which automatically extended the validity of EADs through early 2021.

Both proponents and opponents of immigration reform should keep apprised of developments in immigration policy. Immigration issues impact all organizations in one way or another, whether or not they employ foreign workers.