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Legal Updates

Federal Government Announcements Keep Employers On Their Toes During H-1B Filing Season

On April 7, 2017, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had received a sufficient number of H-1B visa petitions – approximately 199,000 – over the first five business days of the filing period to reach the statutory cap for fiscal year (“FY”) 2018. Accordingly, as it has done for the past several years, USCIS conducted a random computer generated lottery to determine which H-1B petitions would be processed.

At the same time, USCIS and other federal agencies issued announcements concerning potentially significant changes to the H-1B program, which employers that rely on H-1B employees for their staffing needs should monitor closely.

Background

H-1B visa petitions are filed on behalf of foreign nationals whom employers wish to hire in occupations that require the application of highly specialized knowledge and completion of at least a Bachelor’s degree in the field. Examples of such occupations include engineers, physicians, teachers, and accountants.

H-1B visas are subject to an annual, statutory quota of 65,000. An additional 20,000 additional H-1B visas are set aside for foreign nationals who have earned an advanced degree from a U.S. college or university.

Options For Employers Following Lottery

Most employers must now wait until April 1, 2018, to submit new H-1B petitions that are subject to the annual quota. However, USCIS will continue to accept and process petitions that are exempt from the quota, such as petitions to allow workers who have already been approved for H-1B visas to change employers, extend their status, change the terms of a previously approved petition, or work concurrently under a second H-1B petition.

Additionally, USCIS will continue to accept and process H-1B petitions from employers that are exempt from the annual quota. Such employers include U.S. colleges and universities and certain non-profit institutions affiliated with them, as well as certain non-profit and governmental research organizations.

Announcements By Federal Agencies

While employers were in the process of preparing and filing their H-1B petitions for FY2018, several federal government agencies issued announcements that may significantly affect the H-1B program.

First, in anticipation of the H-1B filing season, USCIS announced that it would temporarily suspend “premium processing” of H-1B petitions for approximately six months, effective April 3, 2017, the first day of filing for FY2018. Premium processing allows employers to pay an additional filing fee of $1,225 in exchange for USCIS’s commitment to adjudicate the case within 15 calendar days.

Then, on March 31, 2017, USCIS officially rescinded previous guidance stating that an entry-level computer programming job automatically qualifies as a “specialty occupation” for H-1B purposes. Instead, USCIS will focus on each computer programming position individually to determine whether it necessitates at least a Bachelor’s degree, as the H-1B program requires.

On April 3, 2017, USCIS also announced its intention to take a “more targeted approach” to ferret out fraud in the H-1B program. Specifically, officers will make unannounced site visits to H-1B worksites throughout the country, with a particular focus on cases where (i) USCIS cannot validate the employer’s basic business information through commercially available data; (ii) an employer is “H-1B-dependent” – i.e., the employer has a high ratio of H-1B workers to U.S. workers, as defined by statute; or (iii) an employer petitions for H-1B workers who would work off-site, such as at an end-client’s location. Although site visits are not new – USCIS has conducted random visits since 2009 to ensure H-1B employers are in compliance with the program – these more targeted visits will allow USCIS to focus its resources on situations where fraud and abuse of the H-1B program are more likely to occur.

In addition to USCIS, the Department of Labor (“DOL”) and the Department of Justice (“DOJ”) recently followed suit with their own announcements. The DOL announced plans to protect American workers from discrimination in connection with the H-1B program, including by rigorously using its existing authority to initiate investigations of apparent H-1B program violations; considering potential changes to the Labor Condition Application in future H-1B petition cycles; and continuing to engage stakeholders regarding how the H-1B program might be improved to provide greater protections for U.S. workers.

Likewise, the DOJ announced that it would investigate employers that appear to have discriminated against U.S. workers by showing a preference for the H-1B program.

Finally, on April 18, 2017, President Trump issued an Executive Order encouraging employers to “hire American.” Although the Order does not change any existing rules, it directs an overall review of the H-1B program, with an aim to prioritize the most skilled and highest paid positions.

Recommendations For Employers

While these recent announcements seem likely to affect many types of employers, they may have the greatest impact on outsourcing and computer IT consulting companies, along with smaller start-ups and technology companies that regularly place workers with end-user clients.

Regardless of their particular business and nature, however, there are a number of important steps we recommend for all employers that use the H-1B program to hire foreign workers:

  • Employers that use the H-1B program to hire computer programmers should be sure that the positions are sufficiently complex to require at least a Bachelor’s degree.
  • Employers should thoroughly review H-1B public access files to ensure that they are compliant with the regulations.
  • Each H-1B employer should ensure that it has a procedure in place for responding to an unannounced site visit by a USCIS agent. This is particularly important for newer companies and businesses that place H-1B workers off-site.
  • H-1B-dependent employers should ensure that they are complying their obligations to first recruit U.S. workers.
  • Employers should review their affiliations with non-profit institutions to determine if they would qualify for cap-exempt visas.
  • Employers should consult experienced immigration counsel to determine whether any of their H-1B workers may be eligible for any additional types of visas.
  • Finally, employers should stay alert for further agency announcements, in light of the Trump Administration’s stated intention to crack down on perceived abuses in the H-1B program. 
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The Firm regularly processes H-1B visa petitions, and we would be happy to address any questions pertaining to the recent federal agency announcements or the H-1B visa process in general.