When immigration policies shift, the ripple effects are felt across every corner of the economy.
The healthcare industry is no exception. Many hospitals and health systems rely on foreign national workers, and any significant changes to visa programs or a worker's ability to live and work in the U.S. can have a major impact on the ways healthcare organizations operate.
While we may see some fresh perspectives and new ideas come to light as the presidential election approaches, there are at least a few changes likely coming to a number of immigration processes and programs that healthcare companies must watch out for in 2020. At Buchanan, our attorneys have decades of collective experience dealing with the intricacies of immigration law and are constantly keeping pulse of what’s happening in Washington D.C. and across the U.S.
Here are some major updates we will be keeping an eye on in 2020:
Increase in Government Filing Fees
On November 14, 2019, U.S. Citizenship and Immigration Services (USCIS) proposed to adjust its filing fees for various immigration petitions and applications. The new fee schedule, if and when implemented, would apply to various immigration benefits, including employment-based petitions filed by healthcare institutions. The change represents an average 21 percent increase in the filing fee amounts, which could put financial pressure on those responsible for footing the bill.
Changes to the H-1B Visa Process
The H-1B is the most popular temporary work visa for professional employees, including physicians and other workers employed in the healthcare industry. There is an annual limit on the number of H-1Bs that USCIS may grant for employment with “cap-subject” employers. When demand exceeds supply, USCIS has in the past conducted a random selection process each year to select H-1B petitions that would be adjudicated. In recent years, USCIS has had to conduct a lottery every fiscal year due to an extraordinarily high demand. The H-1B selection process for cap-subject employers will change beginning in 2020, and the new process could fundamentally alter the dynamic of how H-1B visas are distributed. Under the new procedure, employers will be required to submit registrations for each employee being sponsored for an H-1B between March 1, 2020, and March 20, 2020. The H-1B random selection process, if needed, will then be run on all submitted electronic registrations. Only those with selected registrations will be allowed to file H-1B petitions with USCIS. This will be different from the previous process, as it will not require the entire H-1B petition to be submitted for consideration in the selection process.
The process for “cap-exempt” institutions, to which the annual limit does not apply, such as institutions of higher education, affiliated not-for-profit entities, not-for-profit research organizations and government research organizations, will remain the same. However, healthcare providers that do not qualify as cap-exempt will be faced with the new lottery process
Additionally, USCIS has continued to tighten its interpretation of what constitutes a “specialty occupation” for H-1B petitions filed by all employers, resulting in new challenges that require a more rigorous analysis under the regulatory criteria for a successful case. This could mean that certain positions will no longer be recognized as eligible for the H-1B category or will encounter severe resistance from USCIS prior to H-1B approval. We find that such challenges can often be overcome – and addressed up-front - by devising a creative strategy and preparing appropriate supporting documentation prior to filing the H-1B petition.
Backlogs in the Permanent Residence Process
U.S. Department of State sources expect that some employment-based permanent residence categories that have remained available for a while (such as the Worldwide Employment-Based Third – EB-3 category) may become oversubscribed in early 2020, leading to a backlog. In this event, the government would establish a waiting list that would stall permanent residence applications. Significantly for the healthcare industry, foreign national nurses are often hired directly through a simplified employment-based permanent residence process. If we see a backlog in 2020, employers in the healthcare industry that rely heavily on the employment-based permanent residence process to hire foreign national nurses may need to find creative alternative solutions to deal with nursing staff shortages.
Possible Implementation of a Currently Blocked Public Charge Regulation
On August 14, 2019, USCIS published a final regulation that would change the meaning of “public charge” as a ground of inadmissibility, even for individuals who are lawfully present in the U.S. For now, a U.S. District Court issued a nationwide preliminary injunction blocking this regulation. If the regulation is ultimately upheld, however, it would require employers who file petitions for non-immigrant workers, requesting a change of status or extension of stay, to disclose information about the petitioned-for employee’s receipt of public benefits, which would include receipt of federally funded Medicaid (with certain exceptions) for an aggregate of 12 months within a 36-month period, and USCIS officials would consider past use of such benefits in determining if an immigrant is likely to become public charge in the future. The new rule would also look at a number of factors in determining if an individual is likely to become public charge, including the presence of a medical condition that is likely to require extensive treatment. Some critics of the regulation have expressed a concern that it could cause a chilling effect on foreign nationals’ willingness to seek services from healthcare providers as they would be afraid of (1) using medical-related public benefits and (2) receiving a formal diagnosis of a medical condition that can be held against them in immigration applications.
Increased Focus on Enforcement
The government has ramped up immigration enforcement efforts in recent years, consistent with the President’s executive orders. Workforce compliance is one aspect of these enforcement efforts and includes Form I-9 inspections conducted by Homeland Security Investigations (HSI). Statistics released by Immigration and Customs Enforcement in late 2019 bring this to light: in fiscal year 2018, HSI opened 6,848 worksite investigations compared to only 1,691 in FY17, initiated 5,981 I-9 audits compared to 1,360, and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively in the prior year. All of these categories surged by 300 to 750 percent over the previous fiscal year.
It is expected that these numbers will continue to rise in the near future. Healthcare providers are already the subject of various compliance requirements and workforce compliance should be a major focus. Employers in the healthcare industry should at a minimum undergo a preventative Form I-9 self-audit in order to review their records for errors and prepare for a potential government inspection.
No matter what 2020 brings, healthcare leaders should stay on top of these developments to immigration policy reform and engage legal counsel that is well-versed in how these changes will affect their organization. In doing so, hospitals and health systems can stay prepared and limit any disruptions to their operations.