H-1B Visas: Change is A-Coming

By Becky Sigmund and John Hill

Last week, savvy employers who need H-1B workers rushed to file petitions for new H-1B workers in time to meet the April 1 deadline.  Actions earlier this year by Congress and the Trump Administration suggest that the process will be significantly different the next time that the U.S. Citizenship and Immigration Services (CIS) accepts new H-1B petitions.

The H-1B visa category is frequently referred to as the one used by highly skilled workers.  Technically, the category is used by persons engaging in a specialty occupation.  A specialty occupation is one that requires application of a particular body of highly specialized knowledge to fully perform the occupation.  Such occupations also require at least a bachelor’s degree in a specific area of specialty.  The employee must have attained the level of education and specialty (or the equivalent through a combination of relevant work experience and education) required for the occupation in question.

Employers such as technology companies, manufacturers, and universities use the H-1B category to access highly educated workers to fill key positions such as software development, research and development, engineering, and medical occupations.  Due to annual quota limitations, employers already have limited access to H-1B workers.  In fact, when the government begins acceptance of H-1B petitions for the new quota each year, CIS typically receives nearly three times more applications than available quotas.  Nonetheless, because of perceived abuses by some employers, Congress and the Administration are proposing changes that will greatly curtail – or at a minimum burden – an honest employer’s ability to use the H-1B program.

Trump Administration.  Even though the Trump campaign called for revisions to the H-1B program, his Administration has not yet taken formal action.  Among the multiple Executive Orders that his Administration have issued during its first two and one-half months in office, a draft Executive Order was leaked entitled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.”  Its provisions include directives to the Department of Homeland Security (DHS) to seek better efficiencies for allocating H-1B visas; ensure that the visas are allocated to the “best and brightest;” determine the injury to U.S. workers caused by work performed by H-1B workers; and expand the site visit program.

Congressional Action.  Congress, on the other hand, has issued at least three bills proposing changes.  First, the Protect and Grow American Jobs Act (H.R. 170) includes proposals such as increasing the wage level that employers must pay to avoid the additional obligations imposed on H-1B dependent employers; and eliminating the H-1B dependent exemption that applies when the H-1B worker has a master’s degree.

Second, the Highly Skilled Integrity and Fairness Act (H.R 670) seeks similar changes as H.R. 170 that affect H-1B dependent employers but goes further to impact all H-1B employers by reforming the prevailing wage requirements; prioritizing visa allocation based on the salary level offered to the H-1B worker; providing certain wage protections for H-1B workers; reserving 20 percent of the annual quota for small and start-up employers; and streamlining the process when H-1B workers change employers.

Third, and perhaps the most drastic changes are proposed by the H-1B and L-1 Visa Reform Act (S.180).  The S.180 proposals include extending the recruitment requirement to all employers; increasing the prevailing wage requirements; allocating visas with priority for STEM workers and higher paid workers; making it easier for the Labor Department (DOL) to investigate Labor Condition Application (LCA) and H-1B violations; eliminating H-1B eligibility for workers who lack an actual bachelor degree and only have the equivalent of a bachelor degree; requiring DOL to impose filing fees for LCAs; reducing H-1B eligibility to three years unless the worker is the beneficiary of an approved immigrant petition; eliminating the “B-1 in lieu of H-1B” program; authorizing DOL to hire 200 new officers; and increasing the civil penalty levels by as much as five times for certain H-1B violations.

Although impending change is evident – and improvements are needed – to the H-1B program, many employers rely upon the program to access needed skills.  Despite the popular belief that such workers displace U.S. workers, in many cases employers are simply seeking the best talent for a needed position, whether that person is foreign or American, thus making the employer more productive and thereby creating more jobs for Americans.

Regardless of what happens in Washington, for now it appears that change is a-coming by the time the next H-1B quota application period opens in April 2018.

Ogletree Deakins has one of the largest business immigration practice groups in the Carolinas with eight immigration attorneys in South Carolina alone.  Contact John Hill at [email protected] or Rebecca Sigmund at [email protected].