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Welcome to another episode of the Engineering Influence Podcast by the American

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Council of Engineering Companies. I'm Catherine Motley, Vice President of Tax and Workforce Policy.

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Today, I'm really pleased to be joined by Alan Perkins, who is a partner with

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Talkin Torp LLP, and he chairs their business immigration practice.

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Alan, welcome to the podcast. Thanks, Catherine. So we are talking about immigration policy today because

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this is such a key issue for the engineering industry.

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We know from looking at data, for example, from the Bureau of Labor Statistics

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at the Department of Labor, that the engineering workforce has been at full

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employment for several years running now.

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We also know from our own ACEC Research Institute that over half of our member

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firms report that in the past couple of years, they have turned down work specifically

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because of workforce shortages. So, of course, like all other employers, engineering firms turn to American

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workers first, as they are required to do.

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But sometimes there aren't qualified Americans available.

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And so at that point, engineering firms sometimes turn to foreign nationals,

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particularly people who have studied engineering at U.S. universities.

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We also know that half of engineering master's degrees awarded by U.S.

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Universities over the past several years have been awarded to international students.

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So it's a really important part of the labor force. And so we are going to talk

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to Alan, who first was connected to ACEC by an ACEC member firm,

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when we worked together on a letter to President Biden about a year and a half

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ago, looking at different pieces of the immigration system and where some changes

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or upgrades could be made. So, Alan, here we are. We are, you know, a year and a half later,

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we have a new president coming, returning to the White House,

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who may have a different kind of take on immigration policy than what we've seen the last few years.

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We were interested by President Trump's comments that he made during the campaign

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about awarding green cards to any student who earns a degree from U.S. universities.

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I mean, what are your thoughts about that idea? Yeah, it sounded really nice,

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but big picture wise, it's pretty unlikely that he would be able to do that

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because it really needs Congress.

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And at least in the news, we heard that there was a lot of pushback from members

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of Congress against that idea. And we've got a set number of green cards that are available each year in the

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statutory law and everything's kind of set in place. So there's really not a

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way for the executive branch to do it on their own.

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So really it's going to be a question of how Congress may feel about that and

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how much he really, really is going in that direction.

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And I think a lot of what we'll talk about today is, you know,

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how much are we going to go back to Trump 1.0, the first administration?

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And I think we know there are, you know, there are new influences with this new administration.

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So you've got Elon Musk and Stephen Miller, the more restrictionist side and

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maybe the more tech and engineering friendly side.

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So we will see with time what plays out. Definitely.

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And it's interesting because, you know, we had seen coming out of the Trump

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administration, as you as you said, 1.0, some rules, proposed rules that would

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have really restricted the use of H-1B visas.

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And whereas just yesterday, the Biden administration finalized a rule trying

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to put in place, keep in place some proposals that they had to try to make the

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system work more efficiently. I'm curious what you think about whether some of those proposals that were finalized

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yesterday, will they, do you think they will stick around or do you think the

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incoming administration might try to go back to their ideas from 2020? Yeah.

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Yeah, that's a toughie. A lot

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of this is always tough, and I wish I had my crystal ball worked better.

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But the rule yesterday is supposed to go into effect on January 17th.

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And I need to take a better look at some of the law relating to administrative

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rules and this final rule, whether it's going to stick, whether Congress can

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do something at the beginning of the year to get rid of this rule.

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But the Biden rule, I'll call it, it has some good things and some stuff that

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actually is a little bit more on the enforcement side.

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They put more in that, you know, actually the Trump team might not be so opposed

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to in terms of making sure that certain things are compliant and enhanced,

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if you want to call it that, penalties for noncompliance.

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But there were a few things that are in there, like extending CAPGAP from October 1 to April 1.

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That gives more additional time for regularly processed cases.

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They codified deference, so providing deference to previous USCIS decisions

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where the facts are the same in the cases.

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But, yeah, there's more in there about inspections as well, including potential

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inspections by USCIS after a case is filed but before it's decided.

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Like, they can come in and do an inspection. So, that's interesting.

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So, there are some changes there as well.

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Specialty occupation, I, for the most part, liked the changes to the definition. Yeah.

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And one key thing they did get in there is saying that normal doesn't mean always.

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And what I mean by that is a lot of arguing the H-1B specialty occupation is

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about what's normally required by the occupation, industry, the employer.

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And under Trump 1.0, when we saw the RFE rates go up to like 60 to 80 percent

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for these cases, one of the things that they like to push back on was say,

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well, this isn't a normal requirement because you don't always require it.

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So this regulation says, you know what, normal means what it normally means, which isn't always.

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And so it's nice to see that in there. But some of the themes of Trump last

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administration proposed regulations, could they come back?

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Yeah, it's possible, for sure. And again, this is the Musk versus Miller,

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if you want to call it that, the restrictionist versus more employer-friendly.

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We'll wait to see how it plays out. But one of the things

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that I think worries me most that we saw right at the end in December 2020 was

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a regulation that I believe was set aside that increased the levels for the

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prevailing wage government survey that is most often used for these cases,

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and it was significant increase across the board,

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that could really impact employers.

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The leveling would go up markedly under that prior regulation.

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So that's one of the ones that's super concerning to me.

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And so does that mean that an employer who hires someone using an H-1B visa

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would have to pay higher wages to those people. Yeah.

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So it's a bit detailed, but there's also a way to use under the existing regulations

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and even under that proposal to use private surveys.

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So something like Radford or whatever, these private surveys that meet government requirements.

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So there was always that possibility that you might be able to reach out that way.

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But the OES wage survey published by Department of Labor is the survey used,

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you know, 95% of the time, it seems.

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And that would have been a significant increase and really would have been a

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challenge for employers because you do as an employer have to pay the greater

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of the prevailing wage, in this case,

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looking at the OES wage survey,

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or the actual wage, which is the internal wage paid to similarly situated workers.

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So that's kind of a biggie.

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Another is tying wage to the H-1B lottery.

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That's one of the other themes that has been discussed and looked at back then.

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And that one's problematic as well, just philosophically. the idea right now

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is most folks feel that the law says, you know, this should be random.

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This is, you know, there's nothing that says this in the statute about these

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selections going that way. And their argument is, well, we have the room to do it within the statute.

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But the concept is what's most concerning if they move that way and really saying,

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well, the people who are paid the most are going to be in the front of the line kind of thing.

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And, you know, engineers are probably in there somewhere, but they're not the

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highest and they're certainly not the lowest. And you can imagine there are a lot of worthy H-1B specialty occupation professionals

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that may be in the lower ends of these occupations.

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So that's one of the ones that concerns me as well, for sure.

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And then finally, just whether it's in a regulation or not, the increased scrutiny

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of the specialty occupation argument, I think we're going to see it come through.

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So, you know, you mentioned whether it's in a regulation or not,

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and we definitely saw in the last Trump administration, you referred a moment

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ago to the requests for evidence, the RFEs, some of the longer processing times,

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sort of tools that the administration has at its disposal.

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Outside of a regulatory process, without having to go through a regulatory process.

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And I'm really intrigued by the contrast you're drawing between the more restrictionist

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members of the administration team and the more sort of tech side of the administration

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team who might be more open. And I'm interested to see whether the administration goes back to that tightening

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of requiring so much more information for what used to be pretty standard renewals of an H1PV.

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Do you think we might see some of that again? We certainly might.

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And it just depends on how this all plays out. But Trump 1.0 definitely,

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as those of us who are in the game remember, was not business friendly with

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respect to business immigration.

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And it's quite possible we could head back that direction for sure and see really

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increased request for evidence RFE rates.

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I think before they were in the 60 to 80 percent at their height.

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It seemed like every time you filed an H-1B petition, even an extension,

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you just expected to get pushback and requests for additional information,

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which took a lot more time and cost employers a lot more money.

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The RFE rates have been far lower under the Biden administration.

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So there really could be some pushback and lengthens processing times,

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makes the process more difficult. And for restrictionists, they feel that that's a success in terms of reducing

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the amount of inbound immigration. It is an interesting idea, though, because, you know, at the same time,

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we have data that shows that not enough students are studying engineering.

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And as I mentioned earlier, there are a lot of people who come from other countries

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to study at U.S. universities. And I know our members, one of our members some years ago said to me,

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you know, it doesn't make any sense to educate someone here and then send them

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home to work for our competitors. When if they wish to stay, that's obviously a choice, not a not a requirement.

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But if someone wants to stay and contribute to the U.S.

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Economy and a U.S. employer, why are we sending them home to contribute to our competitors?

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And I always thought that was a really interesting perspective. Yeah, yeah.

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You'd think we'd want the best and brightest and the folks who are educated

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here to be able to stay if they want.

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And like you said, it's very tight labor market. And I think especially with

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the infrastructure bill, Inflation Reduction Act, there's just a lot going on

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and the need for engineers has increased considerably.

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So the workers have to come from somewhere. Yeah.

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That's right. And as I often tell people, you know, it takes a long time to

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make an engineer. You don't educate, train an engineer in a year or two.

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It's a long process because of the immense responsibilities that they have when

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it comes to designing our infrastructure, when they're designing the bridges

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that we all drive across and the water systems we rely on, energy systems.

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You know, we are looking to them to have a high level of expertise.

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And so it is something that requires a lot of education and training.

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Yeah. And, you know, a lot after the education, the training to get that license

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to be an engineering training.

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And there's just a lot that goes into it that may start when folks are on their

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OPT or STEM OPT employment authorization and then they hope to be able to continue. now?

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Absolutely. So I know that at ACEC, we are going to be making sure our members

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are well aware of what's happening, both on the legislative front and on the regulatory front.

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You referenced earlier that Congress will have, each time an administration

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ends, they have the opportunity to kind of look back for a certain period of time at regulation.

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So we'll see whether the rule that was finalized yesterday will be included

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in that Congressional Review Act process or not. So we will make sure that our

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members are well aware of everything that's going on here in D.C.

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But from your perspective, working directly with employers, what do you think

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engineering firms need to do to kind of be ready for possible changes in this whole process?

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Yeah, there's just going to be a lot going on. And we expect that there are

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going to be executive orders maybe on January 20th that just start coming out.

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So that's what we're expecting. We're expecting that we'll be sending a lot

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of alerts out to clients to let them know about these changes.

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But I think folks should have regular strategy check-ins with their immigration

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counsel and stay up to date on alerts that way.

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But also look at each case individually in terms of what can be done.

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Most important, though, that we're hearing a lot right now is advising on maybe

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international travel right now is something that you should be thinking about holding back on,

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especially right around the inauguration or immediately thereafter.

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So there may be travel bans for specific citizens of specific countries.

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And the last thing we would want is for people to be outside the country.

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And then you get that notice where 48 hours from now, citizens of X,

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Y, and Z countries cannot enter the United States.

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So that's a possibility. So being aware of international travel,

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plus there could be changes coming very soon with respect to how visa applications are handled.

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And folks are used to the post-COVID environment and things have been a whole

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lot nicer and gotten more back to routine and normal.

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But I expect that this administration may go back to policies like requiring

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interviews for each visa applicant,

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whereas the Biden administration has relied more on electronic review of extensions

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or renewals, I should say, of visas and permitted what they sometimes call a dropbox procedure that avoids an interview.

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You unless they call you in separately.

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So those kinds of niceties might be going away, and we would likely see increased

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wait times for visa appointments, potential increased scrutiny.

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So folks might be stuck abroad waiting for their visas to come through for a longer time.

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There's something called administrative processing that they aren't going to

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approve you right away. You go into limbo land.

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And so there may be an increase in administrative processing as well.

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So those things for international travel, applying for visas, more immediately,

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a reminder to your non-citizen employees to be sure to carry evidence of their

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status in the United States, their legal status.

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So it's not just the passport and visa.

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A lot of people think it's the visa stamp and the passport.

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But there is other documentation that really definitively says what your legal

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status is and how long you stay. Most often, that's the form I-94 that's issued by Homeland Security.

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So it's important that folks carry that documentation with them as we hear about

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mass deportations that are coming.

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And also increased employer I-9 tune-ups might be in order.

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So there might be more enforcement coming. I have heard that ICE might be gearing up for that.

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So not only the mass deportations, but also increases in employer enforcement

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may be coming as well. So doing an I-9 tune-up is probably a good thing.

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So yeah, those are my immediate tips for what may be coming.

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But thinking well ahead and getting a game plan for folks and a strategy for

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each employee, extending people who are already here as early as possible and

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not waiting to the last minute. Like for an H-1B, you can apply up to six months in advance.

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So maybe starting a couple months earlier than that and making sure the case

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is filed as early as possible is really a prudent thing to do.

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And starting green card processes maybe earlier than employers would have thought of before.

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Because usually it's a big commitment, time and money-wise on the part of employers.

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And so they want to make sure that there's a good fit with the employee a lot of times.

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But given the increased processing intents we're already seeing with DOL,

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coupled with what we know the administration is saying, like requiring workers to go back to the office.

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Things like DOL funding coming from Congress.

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Increased demand for DOL processing, we could see additional slowdown on the

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DOL side as well with respect to labor certifications for green card applications. expectations.

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So thinking about earlier starting processes is probably prudent.

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So it sounds like the best thing that employers can do right now is make sure

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they check in with their immigration lawyers and see kind of where they stand with their workforce.

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And as you said, with their firm generally in terms of those potential audits.

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Yeah. And then next year, as the changes come through.

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They could be pretty fast and furious, January, February, but they may just keep coming regularly.

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So getting those updates will be important. Well, this will definitely be a time with a lot of activity and a lot for firms to think about.

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So Ellen, thank you so much for joining us today and for sharing your expertise

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on this really important subject. Yeah, thanks, Catherine.

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So this has been another episode of the Engineering Influence Podcast.

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Thank you for joining us and we hope that you will be sure to subscribe to our

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channels. We'll look forward to talking with you next time.