H-1Bs in the New Administration: Fact v. Fiction

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Here we are, mid-April already, and business immigration attorneys all over the United States are breathing a sigh of relief that another H-1B cap season has come and gone. Meanwhile, for the hundreds of thousands of foreign nationals who are the potential beneficiaries of the congressionally-mandated 85,000 total available H-1B visas, the wait has just begun.

Given the amount of media attention the H-1B program has received as of late, it is important for foreign nationals, especially those on H-1Bs or waiting for H-1Bs, to stay informed and separate factual information from the fictional rumors and speculation that seem to be circulating. To learn more about the government’s recent announcements regarding the H-1B program and how it may affect you, read on!

Despite some of the recent negative press regarding the H-1B visa program, U.S. employers are still filing in huge numbers for this sought-after immigration benefit. In fact, on April 7, 2017, just four short days after the United States Citizenship and Immigration Service (“USCIS”) began accepting H-1B filings, USCIS announced that it had reached the 85,000 H-1B visa cap for fiscal year 2018. To-date it is unclear if there will again be a lottery this year, or if USCIS stopped accepting filings once the available visa numbers were reached. However, it is likely that USCIS will clarify this point within the next few weeks.

The H-1B visa program has been thrust into the spotlight due to the current administration’s hardline stance on immigration and the overall political climate in the United States. The media has taken a renewed interest in the program and the H-1B has become a hotly contested issue in the nationwide debate on immigration. Is the H-1B visa program taking jobs from American workers? Is there widespread fraud and abuse of the H-1B visa program like some suggest? These are all valid questions posed by politicians and the media and as such, there is an overwhelming amount of information currently circulating regarding potential changes to the H-1B visa program — some of it true and a lot of it false.

The current administration seems to have realized its limits and as far as the H-1B program goes, and, instead of focusing on creating new law, the administration seems to be targeting existing regulations and utilizing the laws already in place in order to more strictly construe and enforce the H-1B visa program. This is evidenced by the string of recently released alerts, memos, and policy guidance from USCIS.

Below is a timeline of factual updates to the H-1B visa program since the new administration took office that offers some insight into how the current administration is addressing changes to the program.

  1. Fact: H-1B and L-1 Visa Reform Act is Introduced to Congress

There have been multiple bills introduced into Congress regarding reforms to the H-1B visa program but the most well-known is the H-1B and L-1 Visa Reform Act introduced by Senators Grassly and Durban on January 20, 2017. The H-1B and L-1 Visa Reform Act includes some changes to the H-1B program but these changed mainly effect H-1B dependent employers (those who employ large numbers of H-1B employees). Additionally, the Act suggests giving preference to foreign students already studying in the U.S. in an effort to retain high-level education and talent that would ultimately benefit the U.S. economy. For more information on the proposed Bill or to read the H-1B and L-1 Visa Reform Act in its entirety please use the link below.

https://www.congress.gov/bill/115th-congress/senate-bill/180

  1. Fact: Temporary Suspension of Premium Processing for H-1B Petitions

On March 3, 2017, USCIS announced that it would temporarily be suspending premium processing for all H-1B petitions effective April 3, 2017, including H-1B Cap cases. The suspension is meant to reduce the overall H-1B processing times, allow USCIS to process long-pending petitions, and to prioritize the adjudication of H-1B extensions of status that are nearing the 240-day mark. USCIS did not offer a specific date for when the suspension may be lifted but instead said it may remain in place for up to six months.

This is not the first time USCIS has temporarily suspended premium processing service and it is not anything out of the ordinary.

3. Fact: Computer Programmer Positions for H-1Bs to be Scrutinized

On March 31, 2017 USCIS issued a Policy Memorandum specifically rescinding a 16-year-old Memo that provided guidance on H-1B computer related positions, specifically the occupation of Computer Programmer.

The March 31, 2017 Memorandum is effective immediately and provides USCIS Officers with new guidance regarding the adjudication of H-1B petitions for Computer Programmers and more specifically, states that the occupation of Computer Programmers should not generally be considered a specialty occupation for purpose of an H-1B.

It is important to note that more complex or senior-level Computer Programmers may still qualify as a specialty occupation for H-1B purposes, however, the burden is on the employer to provide evidence that the particular role qualifies as a specialty occupation pursuant to 8 CFR § 214.2(h)(4)(ii).

The occupation of Computer Programmer has long received scrutiny from USCIS so this new Policy Memorandum is simply clarifying USCIS’s current view on the occupation. For more information, please see the link below.

https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf

  1. Fact: USCIS Announces Further Measures to Detect H-1B Fraud and Abuse

On April 3, 2017 USCIS released a news alert titled, “Putting American Workers First: USICS Announces Further Measures to Detect H-1B Visa Fraud and Abuse.” This news alert simply states that USCIS will be utilizing the regulations already in place to take a more targeted approach to detect H-1B visa fraud and abuse. Moving forward, USCIS will focus resources on H-1B employers whose basic business information cannot be validated through available data; H-1B dependent employers; and H-1B employers petitioning for workers who will be placed off-site at another company or organization’s location.

USCIS also announced that they would be making additional site visits to employers who fall into any of the above mentioned categories and will continue to make random unannounced site visits nationwide, as they always have (emphasis added).

The facts above summarize the only official actions regarding the H-1B visa program. Anything else is rumor or speculation at this point. Yes, the H-1B visa program has come under political and media scrutiny since the new administration has taken office and this frightens people. However, there are well-established laws and policy in place and any substantial changes to the H-1B visa program will take time. Simply put, just because a Bill is introduced to Congress does not mean it is going to become law. And as we have seen with some of the recent Executive Orders, simply because the President signs it, does not mean the United States Judicial System will allow it to be enforced.

Further, as evidenced by the facts above, the current administration seems focused on using the laws already in place to enhance scrutiny and increase the resources used to investigate fraud or abuse of the H-1B visa program, which is a good thing. If employers taking advantage of the program are eliminated, this will open more doors for employers looking to play by the rules.

These are certainly interesting times for foreign nationals in the United States on an H-1B or other non-immigrant visa. Never before has a non-immigrant visa program been thrust into the political and media spotlight quite like this and because of this newfound interest by the masses, it is important that the immigration community stays informed and shares only reputable information.

Any new policy changes, guidance, or executive orders will be announced and made public as they happen and it is extremely important to verify the source of your information before relying it. Government websites or the American Immigration Lawyers Association (“AILA”) website are reputable places to research information and stay informed. Message boards, foreign news, and immigration forums are not the best places to look for information and often provide visitors with misleading or false information.

Should you have a particular concern about your case, it is always advisable to contact an experienced immigration attorney.

 

Boston Immigration Lawyer Chiara St. Pierre has worked with business clients all over the world including large multi-national companies and individual entrepreneurs looking to expand their business into the United States. She specializes in employment-based immigration and has over seven years of experience with both immigrant and non-immigrant visas. Attorney St. Pierre currently practices with Trupti N. Patel & Associates where she manages business
integration for corporate clients.

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