Mar 16 2020
The Novel Coronavirus has wreaked havoc on not just the human respiratory system, but entire economies, as a result of fear-induced aversion to public gatherings, including and especially the workplace. The U.S. government infrastructure is faced with an unprecedented need to accommodate to this pandemic in order to slow its impact. For the first time, the Office of Personnel Management is urging federal agencies to permit remote work for its employees.
Now is as good a time as any for the U.S. Citizenship and Immigration Service (USCIS) to consider revising its processing of civil immigration matters. Our top proposals include:
1. Revising I-9 Rules for Employers
Currently, USCIS rules require employers to verify every single U.S. employee’s work authorization by completing a Form I-9. Employers are required by law to verify and physically inspect the authenticity of the new employee’s work and identity documents.
Assuming we don’t head straight into a recession after this pandemic, and employers continue to hire, USCIS must come up with a novel way to permit employers to remotely verify the work authorization of its workforce. Once such method would be to allow teleconferencing during the I-9 document inspection and allowing employees to fax or email in documents to employers for record-keeping.
2. Accepting Wider Online Petition and Application Submission
Although Ellis was a force to be reckoned with on the TV show Grey’s Anatomy, the same cannot be said for the ELIS system created by USCIS in 2013. Sadly, the Electronic Immigration System had such high hopes and dreams yet it was shuttered fairly quickly, without much fanfare, to be replaced by a new system, myUSCIS, which currently only allows a handful of applications to be submitted online.
USCIS should further enhance the system to provide a wider availability of applications and petitions to be submitted online, with the option for payments to be remitted simultaneously.
3. Moving to Digital Confirmations in Lieu of Paper Notices
While Form I-797 Notices of Actions are as varied as the colors in the rainbow, does this digital revolution still mandate paper-only interactions?
USCIS should permit applicants and petitioners the option of receiving digital only receipts, notices and approvals (or at least provide a portal where this documentation can be downloaded). Considering the USCIS already produces barcoded government notices that contains critical metadata when scanned, there is simply no reason not to move to a digital-only medium, if an applicant or petitioner affirmatively requests. This would also further result in a savings in mailing costs as well as a savings in time to print and send physical documents.
4. Eliminating In-Person Employment-Based Greencard Interviews
Counsel wasn’t thrilled when USCIS announced in 2017 it would begin requiring the interviewing of foreigners applying for their greencards based on employment. The rationale was that USCIS had already reviewed the paperwork, and background checks were already conducted, and the fact the foreigner already was employed (or had a job waiting for him/her/them), the interview was excessive and served to delay the process, as well as create a backlog. (A backlog it has become indeed!)
USCIS’ limited resources would be better served eliminating this in-person interviewing requirement altogether, and, like the olden days, reserve the right to an in-person interview should the facts of the application necessitate it. Given the wide work portability rules, what legitimate interest does the employment-based interview serve anyway?
5. Allowing Digital RFE Responses
Currently, when USCIS issues a request for evidence, a response exceeding 25 pages normally must be filed via hard copy. The irony is that USCIS will typically fax this request for additional evidence and then ask for the response to be submitted in hard copy.
Oh dear…. Need I say more?
6. Permitting FOIA responses to be downloaded digitally
It is not uncommon for USCIS to respond to a FOIA by providing a compact disc. (Cue the forehead slapping emoji here…) Why?
If the data has been saved digitally on a CD, why spend additional funds and time to physically mail it? Why not permit a digital download from a secure portal?
7. Enabling Digital Expedite Requests
Today, a request to expect an advance parole, after it has already been filed and pending with USCIS, must be made affirmatively by phone whereby USCIS will then call the applicant to schedule an appointment locally (if the applicant is lucky enough) …. For those of you who have never called the USCIS 800 phone number, it is truly a unique way to spend an entire afternoon.
If only there was a mechanism online that allowed applicants to schedule an appointment locally at the USCIS office closest to them…. Wait, there used to be that system called INFOPass.
We don’t need to bring back INFOPass in its earlier form, USCIS could certainly develop an INFOPass Version 2.0 to enable applicants needing emergency travel request to request so digitally, provide justification online.
Also, USCIS should enable an online expedite process for other processes. Currently, for any matters where premium processing is allowed, petitioners must do so via hard copy and send in a check or money order.
Yawn… can USCIS please implement an online expedite process where the premium processing fee could also be paid online?
8. Permit Teleconferencing of Interviews
Prior to the live rollout of the H-1B online lottery registration, Counsel attended no fewer than 4 webinars presented by USCIS…. So there is proof that USCIS is aware that web conferencing technology (including Live YouTube) exists and can be successfully deployed.
USCIS should consider providing teleconferencing, as an option, to petitioners, applicants and beneficiaries on matters that normally require an in-person interview, especially in low-risk, no-fraud, clearly approvable cases.
Ann Cun is the Managing Attorney at Accel Visa Attorneys, PC, a U.S. immigration and nationality law practice based in San Leandro, California. During this pandemic, Ann has been taking prudent measures to ensure the well being of her employees and help the firm’s clients navigate the evolving immigration landscape. Ann can be reached at accelvisa.com.
Mar 11 2020
The Request for Evidence (RFE) is intended to be a valid inquiry into one or more aspects of a foreign national’s petition or application to USCIS. A reviewing officer may ask for documents that might have been mistakenly omitted or they may request additional supporting evidence to further ascertain how an applicant meets the regulated visa criteria. With the current presidential administration, there has been a marked increase in RFEs and denials. While there have been no new laws or regulations passed that have changed the qualifying criteria for various nonimmigrant and immigrant visas, there have been several policy changes affecting the USCIS review process that have opened the door for this increase in RFEs across all visa categories.
Buy American, Hire American Executive Order
In April of 2017, President Trump signed an Executive order entitled “Buy American, Hire American” with the intent to create higher wages, increase employment for U.S. workers, and “to protect the interests of the United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” (Presidential Executive Order) This order specifically targets the H-1B visa program which was immediately impacted. According to the National Foundation for American Policy (NFAP), USCIS produced RFEs in the 4th quarter of FY2017 nearly equal to the total number of RFEs for the combined first three quarters of FY2017 (National Foundation for American Policy). This aggressive H-1B review process has continued, resulting in a current H-1B denial rate that has quadrupled since 2015.
Rescinding the Deference to Prior USCIS Determinations
In October of 2017, USCIS issued a Policy Memorandum that it would rescind its policy regarding the deference to prior approvals for nonimmigrant petitions, when adjudicating renewals or extensions for these same cases. (PM-602-0151) This change means that renewal or extension of a petition that has received prior approval is now reviewed with the same scrutiny as a completely novel petition – even if there is no new evidence since the prior filing. Previously, if there were no material changes in a case, USCIS would defer to the prior approval ruling as the beneficiary was not required to reprove the merits of the case. The shift in policy obliges applicants to resubmit documentary evidence that has already been reviewed and approved by USCIS, resulting in unnecessary paper production as well as increased time spent by USCIS in the adjudication process. As officers are pressed for time to review more and more petitions, they are likely to disregard or overlook evidence. This results in an RFE for clarification or supporting documentation that may have been already been included in the filing.
Misinterpretation of Regulated Criteria
There has also been a noticeable change in the way USCIS officers interpret the regulated criteria. With O-1 visas, for example, USCIS has been interpreting criteria far more strictly than ever and disallowing evidence that had generally been acceptable in the past. Regarding the standard for “Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought” (O-1 Eligibility, EB-1 Eligibility), USCIS used to accept media about the foreign national’s work even if they were not directly named in the article. We are now seeing more and more RFEs disqualifying this evidence because the applicant is not specifically mentioned in the media.
Similarly, supporting documentation for command of a high salary (for both O-1 and EB-1 visas) has been held to an unduly high standard over the past several years. Not only does USCIS now require extensive field-specific wage comparisons and detailed employment agreements, RFEs often include language that discredits the evidence because the beneficiary’s wage is not at the very highest end of the wage range. This is a clear misinterpretation of the regulation. Many applicants legitimately satisfy this criterion since they earn an annual wage that is significantly higher than the average wage for their position and geographic location – they need not earn the highest possible wage.
Over the past few years, there has also been an increase in the seeming randomness of RFEs. Evidence that once met the regulatory standard is now often excluded through technicalities or simply ignored. Additionally, applicants are frequently held to a higher industry standard than what the regulations imply. In some cases, RFEs include incorrect information about the petitioner, beneficiary, or evidence provided. It’s reasonable for USCIS officers to use templates for RFEs; however, when an RFE references an incorrect job title or field of expertise or erroneously comments on evidence, one can’t help but question the officer’s full attention to the review process. As such, even the most well-deserving and thoroughly prepared cases can receive RFEs for seemingly arbitrary rationale. Whether it’s providing additional supporting documentation or “respectfully” clarifying evidence submitted in the initial filing, the timely response must be comprehensive in addressing all issues raised in the RFE. Receipt of an RFE can be intimidating (and, sometimes, infuriating) but the key is to remain calm and connect with an experienced immigration attorney to determine the best response strategy. Accel Visa Attorneys is on top of trending RFE issues for all visa types – contact us for more information.
Feb 06 2020
As H-1B season approaches, employers and potential foreign employees may be finding it difficult to maintain a positive outlook. For those of you who attended today’s USCIS webinar on the H-1B online registration process, it’s obvious the USCIS is still working through many uncertainties surrounding the new H-1B registration process. When you factor in the rising incidences of denials by USCIS and issuing requests for evidence (RFE), it’s no wonder employers are exploring other non-immigrant visa options.
While the preparation for the H-1B petition is relatively straightforward, USCIS statistics show that H-1B RFEs and denials have increased significantly over the past several years. The denial rate for new H-1B petitions has jumped from 6% in FY 2015 to a whopping 32% in FY 2019 (through the second quarter). Between FY 2010 and FY 2015, you’ll observe that H-1B denials rates never exceeded 8%. Today, the rate has quadrupled to 32%.
Given the current landscape, it’s worthwhile for employers to explore alternative work options for their employees. The O-1 visa offers advantages for work authorization that are worth considering.
The O-1A Visa
The O-1 visa is an employment-based temporary work visa reserved for individuals who can demonstrate “extraordinary ability” in the sciences, business, athletics, or arts. Employers may submit the O-1 petition any time during the year to ask for an initial three years of work authorization. The best part is there is no annual O-1 quota or O-1 “lottery” to deal with.
One of the challenges though, is proving an employee’s qualifications for an O-1 visa. Employees must be able to demonstrate they have “risen to the top of the field” through various categories such as having:
- Received top honors or awards for their work;
- Been a member in prestigious organizations;
- Served as a peer judge or reviewer;
- Authored articles in their area of expertise;
- Publications about themselves or their work;
- Been employed in a critical role for distinguished organizations; and,
- Received high remuneration.
While the list may appear intimidating, many employees in specialized fields, especially those who have a masters degree or higher, have already published their work in the industry, have co-authored patents, and have made significant original contributions in their field which can qualify them for the O-1 visa.
One advantage of the O-1 visa that is often overlooked by employers, is how much of a competitive edge the O-1 visa offers. While there is indeed more effort that goes into preparing a strong and approvable O-1 petition, the benefits are much higher to the company in the long term. Employers who pursue an O-1 visa for their employees benefit from recruiting “aliens of extraordinary ability.” They signal to candidates that the company is open-minded, can think outside-the-box, and willing to explore opportunities that will help the company grow. It may also signal the possibility the company would apply that same logic for greencard options as well. Companies who can distinguish themselves from competitors by exploring immigration options for candidates will probably fare better when it comes to recruiting that highly sought-after candidate.
Therefore, it is well worth the effort to explore all options with an experienced immigration attorney, particularly a team with years of experience assessing and drafting O-1 visa petitions. Contact Accel Visa Attorneys to learn which visa best suits your needs.
Jun 27 2017
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!
Apr 25 2017
Today, we bring you a guest article authored by Shail Sturm, Manager at Park Evaluations, to discuss how credential evaluations are an important component in preparing successful immigration petitions to U.S. immigration.
In the context of immigration, foreign academic credential evaluators are critical in evaluating higher education degrees obtained abroad. Some of the most popular work-based visas require educational degrees. A bachelor’s degree obtained in one country may not always equate to a bachelor’s degree obtained in the U.S. Today, we demystify the evaluation process by looking at the tools evaluators use to assess academic equivalency to a U.S. bachelor’s degree.
UNITED STATES BENCHMARK
In the U.S., primary and secondary school education starts with Kindergarten and lasts through 12 levels (or grades). The final four years (9th-12th grades) are called “high school.” Beyond that, students pursue secondary education at a two-year college, or four-year college or university. The standard undergraduate bachelor’s degree usually requires four years of undergraduate study. Therefore, most foreign credentials are based on the four-year standard bachelor’s degree in the U.S.
Foreign bachelor’s degrees that are a three-year program are usually not sufficient to be evaluated as the equivalent of a U.S. bachelor’s degree. This is the common problem encountered with Indian bachelor’s degrees. However, some three-year academic programs may equate to a U.S. bachelor’s degree. For instance, a three-year degree from the United Kingdom, or Israel, can equate to a U.S. bachelor’s degree if you factor in the total requisite years of study for entry into the three-year program. As foreign academic credential evaluators, we have precisely some of those tools at our disposal.
AACRAO (American Association of Collegiate Registrars and Admissions Officers) developed the Electronic Database for Global Education (EDGE). This database collects and analyzes data for degrees from around the world. It categorizes the educational certificates and degrees from various countries around the world. Because USCIS has adopted the EDGE database, this tool has become indispensable to evaluators.
CASE STUDY: AUSTRALIA
In the U.S., the standard prerequisite for entrance to a college or university are entrance exams and/or completion of high school requirements. In other countries, the requirements for entering university are different.
For example, Australian students receive Technical and Further Education certificates (TAFEs). These certificates are designated by their levels: TAFE I, TAFE II, TAFE III, and TAFE IV and are the equivalent of a U.S. high school diploma. However, because the certificates denote “further education” in its titling, it can lead to an erroneous conclusion by some that the certificates are the equivalent of a university-level degree. While some of the certificates may reflect completion of undergraduate coursework, that alone would not normally equate to the equivalent of an undergraduate U.S. degree.
In Australia, the length of a bachelor degree program can vary from three years to seven years of coursework. Some Australian bachelor’s degrees may even equate to a U.S. master’s degree, while other bachelor’s degree programs equate to a few years of college coursework in the U.S. It all depends on the length and robustness of the degree program.
GENERAL TIP FOR EMPLOYERS AND FOREIGN CANDIDATES
A common rule of thumb is that a bachelor’s degree with at least four years of continuous undergraduate study is usually considered equivalent to a U.S. bachelor’s degree. If the degree program doesn’t meet this test, then accruing relevant work experience can also be helpful towards establishing the equivalent of a U.S. bachelor’s degree based on combined work and academic experience.
ABOUT OUR GUEST AUTHOR
Shail Shurm grew up in Canada. His grandparents emigrated from both Germany and Hungary. Immigration has been a steady focus in Shail’s life. He has been working with Park Evaluations for the past 3.5 years and has a passion for assisting attorneys and foreign nationals navigate the complexities of credential evaluation for U.S. immigration matters. Shail can be reached at email@example.com.
Apr 19 2017
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.
Mar 28 2017
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.
Mar 06 2017
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:
- Is outside of the United States as of the Effective Date;
- Does not have a valid visa at 5:00 p.m., Eastern Standard Time on January 27, 2017; and
- 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:
- 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
- Foreign nationals entering the U.S. to pursue work, study or other lawful activity
- Foreign nationals entering the U.S. to pursue significant business or professional obligations
- 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
- Foreign nationals who are young infants or children requiring medical care
- Foreign nationals employed by or on behalf of the U.S. government
- Foreign nationals traveling to the U.S. for purposes related to an international organization designated by the International Organizations Immunities Act (IOIA)
- Landed Canadian immigrants with a valid visa
- 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.
Feb 16 2017
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.
Feb 13 2017
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.
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.
- It would impose priorities on how the H-1B visa is allocated with priority given to advanced degree holders in STEM fields.
- All H-1B workers would be required to obtain a U.S. degree (or a foreign equivalent).
- 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.)
- 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.
- 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.
- The U.S. Department of Labor may hire additional 200 employees to administer its H-1B program.
- 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.
- Consulting companies are specifically excluded from utilizing the H-1B visas for its workers.
- Employers would face stiffer penalties for displacing U.S. workers with H-1B workers and face additional penalties for employee lost wages and benefits.
- 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.
- Employers may not replace a U.S. worker with an L-1 worker.
- 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!
- 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.)
- 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.
- The bill also factors in H.R. 392 (above) by removing the per-country limitations as well for employment-based immigrants.
- 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.
- Removes hurdles to allow F-1 students to apply for a greencard.
- 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.
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.