• 5 Things Every Foreign Worker Must Consider Before Changing Jobs

    Editor’s Note: Today’s guest blog is written by Mark Gabel, an employment lawyer who helps executives, professionals, and individuals understand and protect their rights at work. He advises on employment contracts, human resources issues, helps with severance negotiations, and represents individuals in wrongful termination claims and other disputes with their employers.

    Foreign workers in the U.S. face special challenges due to their unfamiliarity with the U.S. work environment, especially when changing jobs. Compensation and long-term career prospects are important, but there are other factors foreign workers should also consider when evaluating a new job opportunity in the U.S, in order to maximize job satisfaction. Five of the most important of those factors are below.

    1. Your own motivations for moving to a new role.

    All of the reasons to change jobs boil down to three factors:

    (i) Increasing your job satisfaction and your happiness at work (e.g., a boss and co-workers you enjoy working with, prestige, hours, flexibility and work-life balance).
    (ii) Improving your compensation package (e.g., salary, bonuses, equity compensation, commissions, and/or benefits).
    (iii) Improving the long-term trajectory of your career (e.g., better opportunities for promotion, acquiring skills and experience that will help you to get a job you hope to have down the road).

    When considering an offer for a new job, think about which of these factors—at that time—are most important to you, and why. Then look at the new job and decide whether and how it checks these boxes. You shouldn’t take on a new role unless it fits with both your short term and long-term goals.

    For example, a better title, more responsibility, or more money may not always be the best decision. If you hate the job or your co-workers, or the hours or commute make you miserable, the extra money, responsibilities, or prestige may not make you happy. On the other hand, even if you want to be home for dinner with your family every night, you may decide to give that up and take on a longer commute for a while so you can save for a down payment on a house, assist family back in your home country, save for a college education, or your own retirement.

    2. Differences in corporate cultures and policies.

    Do you have a good sense for what it’s going to feel like to go to work every day? Are people happy working there? Will you be? Some companies are known for working hard to address employees’ needs, or bending over backwards to fully support their foreign workers when it comes to immigration. Other companies have a reputation for cutthroat office politics, or waiting until the last possible year to start the greencard process for foreign workers. Do these things matter to you?

    Because foreign workers are less familiar with the U.S. job markets, they may overlook these factors. But they can affect whether you’ll love it or hate it at a new company, so asking these questions early on can help in making an informed decision about whether to accept a job offer. It’s a good idea to research the culture of your prospective new employer before accepting an offer, if you haven’t already.

    3. How will your changing jobs impact your and your family’s immigration?

    Make sure you’ll be able to keep your U.S. work authorization after changing jobs. Don’t assume that you can immediately transfer your visa status to your new job, because certain types of visas will take much longer to process than others, and you’ll need to do that BEFORE you may start working for the company.

    Also, if your spouse’s visa status is tied to your own, consider whether to make changes to their visa status, too. Talk to an immigration lawyer—yours or your employer’s—to make sure that you know what you need to do, and when, to meet your goals.

    4. Will your non-salary compensation change?

    If you’ve been offered equity along with your new job, think carefully about the implications. At most tech startups, your equity won’t start to vest until you’ve worked at the company for a year. And if company is not publicly-traded, your equity may not be worth much. Even if it is very valuable, there may be no one to whom you can sell your shares. Compare this prospect to what you currently have at your employer. If you’re vested, and a sale, IPO, or stock buyback occurs in the future, crunch those numbers now to see how much you would gain, and then consider whether you would actually realize that money.

    You might also want to consider this: if you have vested equity at your current employer when you leave, or if you’re granted options, stock, or other equity at the new company right away, you may get hit with a sizable tax bill you’ll be responsible for paying. If you don’t have a savings cushion to absorb this tax bill when it comes, you may be in a pinch. (Check with an accountant who is experienced with equity compensation to find out more about the tax implications of changing jobs.)

    Many employees don’t think much about the non-monetary parts of their compensation packages, but employee benefits for professional workers can have a cash value equal to 30% of salary. These include health insurance and contributions to retirement accounts. Make sure you understand what insurance options your new employer offers, and how much you’ll have to pay for coverage at the new job. Many foreign workers decide to contribute to U.S. retirement plans, especially if they plan to become citizens eventually.

    5. Where you hope, plan, or expect to be working down the line.

    If later on you’re planning on returning to your home country, or moving on to another foreign job on another continent, think about how the new job will prepare you for those goals. What industries are strongest in the places you may want to work later? What jobs are most in demand? What kind of experience may employers in those places want to see—for example, would you do better later on if you were a manager now, or an independent contributor? You may or may not know the answers to these questions, but if you plan to leave the U.S. at some point, they should at least be part of your thinking.

    Finally, remember that jobs don’t last forever. Companies change their business models, get acquired, reorganize, and go out of business every day. If that happens at your new job, your responsibilities and reporting structure could change, or you could be laid off. Would the new company accommodate your immigration needs? Those risks are often greater at newer startups, or companies that have just been acquired. The rewards of working at newer companies may be worthwhile but it’s always a good idea to do your research in advance prior to accepting that new role.

    ***

    This post does not constitute legal advice, and should NOT be rely upon when making decisions that may impact your legal rights. No two situations are alike. Mark Gabel can be reached at Gabel Law Firm, P.C. at info@gabel-law-firm.com and online https://gabel-law-firm.com/contact/.

  • International Entrepreneur Rule (Parole) Suffers the Trump Effect

    The U.S. Citizenship and Immigration Service officially released its notice to delay the implementation of the International Entrepreneur Rule to March 14, 2018.  The Notice seeks public comment on the prospect of rescinding the plan.

    Had the plan been left to go live on July 17, 2017 this year, entrepreneurs seeking to remain in the U.S. who were poised start hiring U.S. workers could stay in the U.S. to run their enterprises for 30 months.  If their start-ups were successful during that time period, they could renew for an additional 30 more months.  They could bring their spouses and children to the U.S. to develop their business and expand their operations.  This program would have been the closest solution to the lack of a start-up visa the last five sessions Congress have failed to pass into law.

    Meanwhile, Canada, Australia, the United Kingdom, Chile, Brazil, France and many other countries are all too eager to provide start-up packages for entrepreneurs willing to relocate their new endeavors there.  Though, the reality is that there is only one Silicon Valley and the start-up community is inherently different and unique to the Bay Area.  Many entrepreneurs come to the Bay Area to make connections in hopes of being the next big unicorn.

    It’s disappointing that the Notice that was published today, fails in an epic way, to explain exactly what aspects of the International Entrepreneur Rule would have a significantly negative impact on job creation or security in the U.S.  Rather, the Service explains that logistically, it would be unfair to expend USCIS resources beginning July 17th if the rule were to be ultimately scrapped down the road.  Unsurprisingly, the Trump Administration remains conveniently silent on this matter.

    One can only hope that a newer, better International Entrepreneur Rule will take it’s place but if the rewrite of the current Health Care bill is any indication of progress, we’re in for a long ride!

  • Trump Enjoys Partial Victory in Travel Ban

    Yesterday, the U.S. Supreme Court issued a decision to temporarily allow limited portions of President Trump’s Travel Ban to remain in effect.  Individuals who fail to demonstrate a “bona fide relationship with any person or entity in the United States” would be temporarily blocked from receiving a visa if they are citizens or nationals of the six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). Bona fide relationships include individuals who are coming here for school, for work, or have substantial connections to existing family members in the United States.

    What does this mean for folks with no previously established connection to family, school or work in the U.S.?  If they are nationals from any of the above countries, there’s a good chance their visa applications would be halted for the time being.

    The unsigned Supreme Court opinion also provides a glimpse into the near future into the direction the Court may lean when making a final decision on the constitutionality of the President’s Executive Order.  The Court will hear oral arguments later this October but in its recent opinion yesterday, it indicated agreement with the lower courts so far.  If the travel ban remains in effect at that time, we’ll see a real show-down between the President and the Supreme Court. Stay tuned!

  • Progress Stalls on Parole for Entrepreneurs – Senators Push Back

    This week is Tech Summit week at the White House, where many top-level officials from leading technology companies are convening with the President and his team to discuss ways to modernize the government. Yet, amidst the talk of modernization, the White House had recently pulled the plug on a scrappy program that would have created thousands of jobs in the U.S.: Parole for Entrepreneurs. While the program technically is still on the books, its fate is appearing less and less vibrant as the days pass with only matter of time before its likely to be scrapped entirely.

    Although far from the perfect, the Parole for Entrepreneurs program would have allowed foreign entrepreneurs who were ramping up business to stay in the U.S. to run their company. If they met goals of creating more jobs for U.S. workers, they would be eligible to renew for additional 2.5 years. (Read more about it here.)

    On May 25, 2017, the final rule was pushed back to the Office of Management Budget (OMB) for further review by the Administration. The OMB regularly reviews draft regulations prior to it becoming a final rule and rolled out to the public in order to determine economic and other impacts to stakeholders, as well as consistently with furthering government policies.
    On June 16, 2017, the OMB concluded its review of the Parole for Entrepreneur program.

    During the course of OIRA’s review of a draft regulation, the Administrator may decide to send a letter to the agency that returns the rule for reconsideration. Such a return may occur if the quality of the agency’s analyses is inadequate, if the regulatory standards adopted are not justified by the analyses, if the rule is not consistent with the regulatory principles stated in EO 12866 or with the President’s policies and priorities, or if the rule is not compatible with other Executive Orders or statutes. Such a return does not necessarily imply that either OIRA or OMB is opposed to the draft rule. Rather, the return letter explains why OIRA believes that the rulemaking would benefit from further consideration by the agency.

    It’s particularly telling that no “return letter” was issued to USCIS on any potential negative impact by the program. Having returned the rule back to the USCIS, time will tell if the program will be rolled out. Rumors indicate that the Trump Administration plans to scrap the program, but not without strong comment from at least four senators Republication Senators: Orrin Hatch (R-UT), Jeff Flake (R-AZ), John McCain (R-AZ) and Jerry Moran (R-KS).

    In their June 20, 2017 letter, the four Senators site to Canada and France as welcoming foreign entrepreneurs to their countries. Canada’s Immigration and Citizenship bureau has already implemented a similar program. France also has implemented a similar program for startups call French Tech Ticket.

    What’s particularly confounding about the Administration’s pullback is that the Parole for Entrepreneur program aims to promote and produce U.S. jobs, goals that are entirely consistent with the Administration’s stated policy. It’s no secret that small businesses are the bulwark of job creators in the U.S., according to the Small Business Administration. The reality is that while other countries may offer a friendly process to start up a company, there is only one Silicon Valley and it sits in the Bay Area and that’s where most Entrepreneurs want to be.

    For this Administration to stay true to its stated policy, it must develop an even better program, and soon, if the current one is to be abandoned. What do you think?  Is the Administration being fair to foreign entrepreneurs?  We’d love to hear your opinion on this matter.

  • Visa Pit Stop Celebrates Immigrant Heritage Month 2017

    Visa Pit Stop is excited to celebrate Immigrant Heritage Month June 2017 by supporting the #IStandWithImmigrants Campaign.  Our sponsoring law firm, Accel Visa Attorneys, PC is Signatory Partner for the #IStandWithImmigrants Campaign.  Managing Attorney Ann Cun is a former war refugee, an immigrant to the U.S., and a community volunteer.

    You don’t have to be an immigrant to reflect on the many ways immigration has shaped and changed the U.S.  There are many ways to show your support of immigrants in this country.  The simplest form is just through active listening and showing empathy for the plight of others.

    Many times, in local conversations, it’s easy for folks to inject “I support immigration, but only for those who came legally.”  The reality though, is that the U.S. immigration system is so convoluted.  You could have legal status one day and lose it the next.  You could have no status upon entry but gain legal status at a future date.  It may even surprise people to learn that less than 100 years ago, unless you were a citizen of China, you could emigrate to the U.S. easily.  In fact, with the exception of Chinese exclusionary laws, immigration quotas based on nationality was not enacted until 1920.  It is therefore very disconcerting the way our existing immigration framework has evolved from 100 years ago.  In fact, as our current Presdient might even call it, “It’s been a disaster!”

    • An individual can enter the U.S. legally for employment, and through no fault of her own, find herself out of status.
    • Folks may arrive without documentation, or the wrong documentation, seeking refuge in the U.S., yet be able to apply for permanent legal status.
    • An individual can enter the U.S. without proper documentation, yet be able to apply for permanent legal status through family sponsorship.
    • For young children brought to this country, the U.S. is the only country they have known. Our federal laws require that states provide them with an education.
    • Farmers consistently finds themselves in a maze of immigration rules that make it impossible to hire enough workers to harvest at the right time of the season.
    • For work-based sponsorship, Chinese and Indian foreigners consistently have to wait years for a greencard while their counterparts from other countries have little to no waiting periods.
    • For family-based sponsorship, individuals from Mexico and Asian countries consistently must wait decades, as compared to their counterparts from the rest of the world who have little to no waiting periods.

    Looking at the history of how the U.S. was founded by immigrants, it is astonishing 2017 marks only the fourth annual celebration of Immigrant Heritage Month!  This country was founded by immigrants.  Immigrants contribute in many ways to our U.S. economy, community and values.  We at Visa Pit Stop and Accel Visa Attorneys, PC are excited to stand up with immigrants and show our support for the many contributions by immigrants in this country!

  • Executive Order on H-1B Signed Despite Decreased H-1B Petitions Filings

    On April 17, 2017, USCIS announced it received just under 200,000 H-1B petitions.  Speculation is circulating this year as to why the significant decrease in H-1B petitions.  The most likely reasons are probably the most obvious: a shift in our economy and a shift in how companies are conducting business.  Notwithstanding, the President still signed an Executive Order yesterday highlighting the need to reform the H-1B program.

    Shift in Our Economy & Business Practices

    It’s no surprise that since the November election, the protectionist rhetoric stemming from the White House has been strong and increasing in volume.  No doubt this has had an effect on not just foreign job seekers, but also on U.S. companies considering how to balance their global workforce.  Should they stay in the U.S. and continue to struggle to hire high-skilled workers amidst this anti-immigrant sentiment coming straight from the administration?  Or should they develop subsidiaries in immigration-friendly countries (like Canada) and move a good portion of their workforce there, resulting in a loss of jobs in the U.S.?

    On the other hand, market forces may also be at play, forcing a significant dip in the number of H-1B petitions this year.  This may well be the harbinger of an economy that is downshifting gears.

    Executive Order “Buy American Hire American”

    Despite the changes in our economy, we hear the same resounding sentiment from this Administration: the H-1B Program Needs to Be Revamped.  Of course, anyone who knows anything about the H-1B program would agree; but many can’t agree on how to revamp the program.  Yesterday’s Executive Order “Buy American Hire American”, while grandiose in its release, lacked substance in its execution.  The order merely instructs various federal agencies to conduct research and make recommendations on changes to the program, as soon as possible.  In other words, a big snoozer, if you ask me!

    The interesting irony is that the company that hosted the signing of the Executive Order, Snap-On Inc., is actually a great example of how successful the H-1B program can actually be.  In fact, it is representative of many U.S. employers who employ a small fraction of high-skilled foreign workers as part of its U.S. workforce, in order to continue to innovate and grow.

    Almost 1,500 economists recently banded together to sign a letter about the critical benefits that immigration brings to the U.S.  This, coming from experts in how our market forces work and what will make our country prosperous!  And yet… it seems the cry has gone unheeded.

     

  • Can President Trump Unilaterally Change the H-1B Program?

    There’s a lot of chatter about changes to the H-1B program much of which are based on rumors and not facts; these include a rumor about a draft Executive Order that would alter this popular visa program, and various statutes introduced by Congress to revise the H-1B program.  However, as of today, nothing has actually changed about the H-1B program.  In fact, USCIS will be accepting H-1B petitions for the lottery this year starting April 3, 2017.  That’s less than a week away.  So why all the confusion and chatter?

    There’s uncertainty because there’s a grave lack of understanding as to how our immigration rules work, and what powers a President may have to change existing H-1B laws.

    Why the Law Matters

    The H-1B visa’s existence is because of a statute.  Congress passed multiple bills in the last century concerning immigration that eventually became laws of our land.  The last iteration on H-1B visas was revised in 2004, and provided for how many H-1B visas were to be issued, what types of fees would be paid, and what wage requirements would need to be paid to foreign workers.

    If the H-1B visa program exists because a statute was passed and signed into law, then the program shall too be altered or cease to exist by the same method.  Hence, that’s why you have various politicians angling to introduce bills that may someday get passed, signed into law and become a new statute to supersede the latest one.

    Congress creates.  Therefore, Congress must alter or destroy.  (Last time I checked, Congress had a really hard time agreeing on anything much….)

    Then Why the Talk about Presidential Executive Orders?

    Some might wonder why all the talk about Executive Orders if Congress controls what ultimately happens to the H-1B program.

    In any given statute, there will be certain portions that aren’t explicitly written in detail.  When this happens, the statute will typically and explicitly designate a federal authority to “fill-in-the-blanks” by empowering them to establish regulations that will help execute the intent of the law.  It is under this vein, that the U.S. President can provide guidance, priorities, and direction to those designated federal authorities.

    Under the current immigration statute, though, there’s not very much room for maneuvering by the President.  The statute requires employers to pay H-1B workers at least the prevailing wage.  Also, if the prevailing wage is made available to the public (which it is), then the prevailing wage must contain at least 4 levels of wages.

    Theoretically, there could be room to impose a filing fee for the Labor Condition Application (a prerequisite filing with the Department of Labor prior to submitting an H-1B petition to Immigration).  There could also be room for the Department of Labor to require an employer to conduct a labor market test (force employers to advertise to hire U.S. workers only), before it would agree to certify a Labor Condition Application.  Theoretically, the President could impose this in an Executive Order.  Though, both plans may fail if challenged in court, simply because it may exceed the authority of the Agency, since Congress did not contemplate these processes in the statute.

    Therein lies the challenge with the how much power a President could wield through an Executive Order.  The President’s primary role is to guide federal agencies in carrying out the law.  Until Congress can act to reform the laws, we may not see very much change with the H-1B program yet.

  • President Trump Issues Newly Revised Travel Ban

    President Trump signed a revised Executive Order, Protecting The Nation From Foreign Terrorist Entry Into The United States, March 6, 2017.  The Executive Order re-issued a new travel ban for international travelers.  This time, only six countries made it to the list.  Iraq was bumped off due to some heavy political diplomacy and maneuvering on the part of its leaders.

    What Purpose Does the revised Travel Ban Serve?

    The travel ban is meant to put a pause on certain foreigners entering the U.S. from various countries, in order to allow the government a chance to review existing security measures to determine if those measures are adequate to properly screen foreigners for terrorist related activities and their threat to the U.S.

    Which Countries Are Impacted by the Travel Ban?

    Six countries have been outlined to be impacted by the travel ban.  Individuals who are nationals (or citizens) of any of these six countries are impacted: Iran, Libya, Somalia, Sudan, Syria, and Yemen.

    Iraq was removed from this revised travel ban.

    When Does the Travel Ban Go Into Effect?

    This new, revised travel ban goes into effect on March 16, 2017 at 12:01am Eastern Daylight Time.

    Which Individuals Are Impacted by the Travel Ban?

    Individuals who are nationals or citizens of the six countries who meet all three of the following criteria are subject to the travel ban:

    1. Is outside of the United States as of the Effective Date;
    2. Does not have a valid visa at 5:00 p.m., Eastern Standard Time on January 27, 2017; and
    3. Does not have a valid visa on the Effective Date.

    Which Individuals Are Excepted from the Travel Ban?

    The following individuals are NOT impacted by this revised travel ban:

    • Lawful permanent residents in the U.S. (aka greencard holders)
    • Individuals who have been admitted to, or paroled into the U.S. on or after the Effective Date
    • Individuals who have received permission to travel to the U.S. (such as an advanced parole document) issued on or after the Effective Date
    • Dual-national individuals traveling to the U.S. using their non-designated country passports. (For example, an individual who holds a French passport and an Iranian passport who is seeking to enter the U.S. using the French passport is not subject to this travel ban.)
    • Foreign diplomats traveling on a C-2, G-1, G-2, G-3 or G-4 visas
    • Individuals granted asylum status, refugee status, or protection under the Conventions Against Torture are not impacted by this travel ban

    Waivers for the Travel Ban?

    This revised travel ban also carves out areas where consular and customs officers may grant visas/entries to individuals who would otherwise be subject to the travel ban, on a discretionary basis.  The individual must have been determined not to be a national security threat and a denial of entry would otherwise cause undue hardship to the individual.  The waivers may be applicable under the following circumstances:

    1. Previously admitted individuals who were working, studying or conducting other long-term activity in the U.S. prior to the Effective Date of the new travel ban
    2. Foreign nationals entering the U.S. to pursue work, study or other lawful activity
    3. Foreign nationals entering the U.S. to pursue significant business or professional obligations
    4. Foreign nationals entering the U.S. to visit or reside with close family members who are U.S. citizens, lawful permanent residents, or individuals otherwise lawfully admitted to the U.S. in non-immigrant status
    5. Foreign nationals who are young infants or children requiring medical care
    6. Foreign nationals employed by or on behalf of the U.S. government
    7. Foreign nationals traveling to the U.S. for purposes related to an international organization designated by the International Organizations Immunities Act (IOIA)
    8. Landed Canadian immigrants with a valid visa
    9. Exchange visitors sponsored by the U.S. government

    How Long Will the Travel Ban Last?

    The travel ban will last 90 days from the Effective Date.  (There are separate sections regarding refugees on this travel ban that suspends admission of new refugees into the U.S. for 120 days from the Effective Date.)

    Course-Correction For Previously Banned Individuals?

    Fortunately, the revised travel ban clarifies that any individual whose visa was previously revoked as a result of the first travel ban, would be entitled to a travel document to the U.S.  The Executive Order 13769 (the first travel ban) would essentially be revoked on the Effective Date of this revised travel ban.

    ***

    Stay tuned for more details on how Presidential executive power impacts immigration rules, laws, and regulations.

  • NPR Talks H-1Bs with Immigration Attorney Ann Cun

    The topic of H-1B Visas has been on the top of many lawmakers’ minds.  On Monday, February 13, 2017, National Public Radio’s All Things Considered Host Robert Siegel interviewed Immigration Attorney Ann Cun to discuss why U.S. tech employers opt to hire foreign workers.

    Listen to the broadcast below.

    One of the most interesting portions of the conversation, which did not air, occurred when NPR host Robert Siegel inquired about whether NPR had also hired H-1B workers and if there was a way to find this out.  After some research on the internet, it turned out NPR had indeed submitted a few applications in 2016 to the Department of Labor in connection with what would eventually become a part of any H-1B petition that would have been submitted to the U.S. Citizenship and Immigration Services.  This fact was eventually spliced into the segment airing at the very end.

    The ubiquity of the H-1B visa would actually surprise many of its critics.  While many critics bemoan a program that is [allegedly] wrought with abuse by U.S. employers, critics would also be surprised at how entrenched our society has become in our reliance upon technology, therefore necessitating high-tech workers, even if they are foreign-born. These industries include restaurants and hospitality, traditional retailers, news corporations, entertainment companies, as well as the service providers like consulting companies.  In fact, many of the news corporations that often report on the complexities of the H-1B visas also rely on H-1B workers themselves (i.e.: Viacom, CBS, Comcast, Fox, Time Warner, Time Inc., and Hearst).  That’s because technology plays a vital role in how consumers digest information.

  • Four Immigration Bills Impacting H-1B Workers

    The H-1B program as we know it may be changing in the near future but just how quickly those changes occur will depend largely on how quickly Congress can review and vote on the bills.  As of today, four bills have been introduced (and reintroduced) by various congress-people.  As a reminder, a bill has no immediate impact on existing visa programs until the bill has been signed into law.  That, is inherently the challenge with our government.  (Click here for details on how bills become law.)

    Bill #1: H.R.170 Protect and Grow American Jobs Act

    Introduced on January 3, 2017 by Rep. Darrell Issa (R – CA)

    The bill has a limited scope applicable only to H-1B dependent employers.  H-1B dependent employers employ

    • ≤ 25 full-time employees, of whom 8 or more are H-1B workers; or
    • 26 – 50 full-time employees, of whom 13 or more are H-1B workers; or
    • 51 or more full-time employees of whom 15% or more are H-1B workers.

    (Full-time employees are individuals who work 35 or more hours per week according to the rules set by the U.S. Department of Labor.)  Currently, employers who are dependent on H-1B workers must undergo additional recruitment of U.S. workers and attestations in order to continue to hire H-1B workers.  In order to bypass those additional requirements, H-1B dependent employers may attest to paying their H-1B workers $60,000 per year or more, or hire individuals who hold a master’s degree or a higher degree.  Under H.R. 170, the bill would raise the $60,000 minimum to $100,000 and eliminate the master’s degree option entirely.  The impact of the bill is aimed squarely at H-1B dependent employers and would have little impact on most U.S. employers generally.

     

    Bill#2: H.R. 392 Fairness for High-Skilled Immigrants Act of 2017

    Introduced on January 10, 2017 by Rep. Jason Chaffetz (R – UT) and 24 other co-sponsors with a total of 66 co-sponsors to date (as of February 12, 2017).

    Current immigration quotas (as set by Congress) dictate that no more than 140,000 greencard (visas) be issued per fiscal year for those being sponsored through employment, and no more than 226,000 greencards be issued for those being sponsored by family.  In addition, no country may be issued more than 7% of the quota total per fiscal year (this additional rule is called the per country limitation rule).  In practice, the per country limitation rule has created significant backlogs in the “greencard line” for many individuals emigrating to the U.S. from countries like China, India, Mexico and Philippines.  In fact, its not uncommon for a Canadian to be instantly eligible to apply for a greencard whilst their Indian counterparts must wait 8 years or greater for the same employment category.

    H.R. 392 seeks to remove entirely the per country limitations for individuals seeking a greencard based on employment sponsorship.  This would help to speed up the waiting periods for those immigrants who have been waiting for years.  Their ability to obtain greencards would also promote greater job portability.

    For individuals being sponsored by family members, the bill seeks to raise the per country limitation from 7% to 15%, which would also alleviate some of the waiting periods for individuals.

    The bill also removes caps for Chinese Students seeking to immigrate to the U.S.

    Although the bill does not directly seek to change the H-1B program, if passed, its impact would trickle over to H-1B visa holders.  It levels the playing field for all immigrants waiting for their greencards to be approved, regardless of which country they were born.  Rather than having to rely on one employer to sponsor an H-1B for multiple years (8+ years for Indian nationals), workers may have a much shorter waiting period for their greencards.  Faster greencard processing times means greater job mobility for workers means greater competition for skilled labor.

     

    Bill #3: S.180 H-1B and L-1 Visa Reform Act of 2017

    Introduced on January 20, 2017 by Sen. Chuck Grassley (R – IA), Sen. Dick Durbin (D – IL), Sen. Sherrod Brown (D – OH), Sen. Richard Blumenthal (D – CT)

    S.180, as introduced, would revise the H-1B program in many ways.

    1. It would impose priorities on how the H-1B visa is allocated with priority given to advanced degree holders in STEM fields.
    2. All H-1B workers would be required to obtain a U.S. degree (or a foreign equivalent).
    3. Employers would be required to pay a fee to submit a Labor Condition Application to the U.S. Department of Labor. (There is currently no fee.)
    4. The U.S. Department of Labor would be empowered to demand employers comply with the rules (or face penalties) and conduct investigations based on fraud or non-compliance (for both H-1B and L-1 workers) and provide U.S. Citizenship & Immigration Service with any documentation necessary to investigate employer non-compliance.
    5. The U.S. Department of Labor would be required to conduct annual audits of companies with 100 or more employees if more than 15% of those employees are H-1B workers.
    6. The U.S. Department of Labor may hire additional 200 employees to administer its H-1B program.
    7. The H-1B program would be reduced from 6 to 3 years. A 3-year extension would only be allowed for workers who can demonstrate extraordinary ability or have advanced degrees or who are professors.
    8. Consulting companies are specifically excluded from utilizing the H-1B visas for its workers.
    9. Employers would face stiffer penalties for displacing U.S. workers with H-1B workers and face additional penalties for employee lost wages and benefits.
    10. Employers would no longer be able to hire L-1B workers based on specialized knowledge for more than one year, if the worker will be placed at a third-party site rather than the employer’s worksite, unless a waiver has been obtained from the U.S. Department of Labor.
    11. Employers may not replace a U.S. worker with an L-1 worker.
    12. Additional rules will be imposed for L-1 workers, including work location, minimum salary rates, working conditions and employer penalties.

    Of the four bills indicated in our article today, this bill is the most ambitious in revising the H-1B program.  It imposes lots of penalties and changes to both the H-1B program and the L-1 program and seeks to eliminate an entire industry (consulting companies) from existence in the U.S.  Moreover, the attempts to remove as many business operating decisions from the discretion of employers.

    The bill, if enacted into law, would be prospective, but it doesn’t clarify what would happen to the hundreds of thousands of H-1B workers in the U.S. who had previously qualified for H-1B status based on years of experience in the field (or a combination of experience and education).  Moreover, it leaves open as to how foreign degrees would be determined to be the equivalent of a U.S. degree, when many countries operate on a three-year university degree whilst the U.S. uses the four-year standard.

    We’ll dig deeper into some additional questions this bill raises (more than it answers) so stay tuned to this blog.  If you have questions, feel free to leave us a comment.

     

    Bill #4: H.R.670 High Skilled Integrity and Fairness Act of 2017

    Introduced on January 25, 2017 by Rep. Zoe Lofgren (D – CA)

    H.R. 670 also attempts to raise the bar for employers seeking H-1B visas for their workers.  Unlike S.180, which whacks all business necessity rationale out of the H-1B and L-1 programs and imposes heavy-handed rules, H.R. 670 uses a market-based approach. If employers really want to hire a skilled worker, they must pay for it!

    1. Wages for H-1B workers will go up but a lot! Rather than use the 4-tiered system currently in place, the U.S. Department of Labor will be required to conduct a new survey using three tiers.  Based on those three tiers, employers who pay the most (i.e. X% of Tier 3 wages) will receive priority for hiring H-1B workers.  (I’m oversimplifying the math for brevity’s sake.)
    2. The bill also factors in much of what H.R. 170 (above) proposes, by raising the H-1B dependent-employers exemption from $60,000 to almost $130,000 and also eliminating the master’s degree allowance.
    3. The bill also factors in H.R. 392 (above) by removing the per-country limitations as well for employment-based immigrants.
    4. Sets aside 20% of the annually allocated H-1B visas for small and start-up employers (50 or fewer employees) to ensure small businesses have a chance to compete for high-skilled workers.
    5. Removes hurdles to allow F-1 students to apply for a greencard.
    6. Requires employers to legally make available copies of the H-1B petitions to their workers as well as all approval notices.

     

    It will take a long time for Congress to convene and the bills to traverse its way through committees, subcommittees and debates.  In other words, it will be a while before the bills have any actual impact on H-1B workers or U.S. employers but don’t be surprised by surprises.  This year is proving to be very eventful.

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    Some of you might also be pondering the big question of what would happen if President Trump issues an Executive Order that impacts that the H-1B program.  How quickly would the program be revised?  Would salaries be impacted?  Would it impact this year’s H-1B lottery?  Want to learn more?  Stay tuned for an update by subscribing to our blog.