April 25, 2017

H-1B in Transition: H-1B Lottery Conducted, 'Buy American and Hire American' EO and Other H-1B Measures to Deter Fraud

The H-1B work visa is in a state of transition. Companies and workers who rely on H-1B visas should be aware of several important changes this spring on the H-1B category, including an update on the H-1B lottery conducted by USCIS on April 11, the new “Buy American and Hire American” executive order signed by President Trump on April 18, and additional measures from the government on combating fraud and abuse with the H-1B work visa. Additionally, U.S. Citizenship and Immigration Services (USCIS) announced the suspension of premium processing for H-1B work visas on March 3.

FY2018 H-1B Cap Reached; Lottery Conducted on April 11, 2017; H-1B Receipts Coming

USCIS announced April 7, 2017, that from April 1-5, 2017, it received more than 65,000 cap-subject H-1B petitions and more than 20,000 cap-subject H-1B petitions for individuals holding a U.S. master's degree or higher. USCIS will no longer accept H-1B petitions subject to the FY 2018 cap. USCIS also announced that it completed the random selection process (lottery) for these H-1B cap petitions on April 11, 2017, and that a total of 199,000 H-1B cap petitions were submitted to USCIS during the filing period. This is about a 15 percent decrease in H-1B cap petitions from those submitted last year and the lowest number submitted since 2013. USCIS has started to conduct its process for issuing receipts for those H-1B cap petitions filed in early April and selected as part of the H-1B cap random selection process. As in past years, it is anticipated that those petitions not selected in the H-1B lottery this year will be returned by the end of May/early June.

For additional information and developments from the USCIS regarding the April 5, 2017, announcement that the H-1B cap has been reached, please see the following:

'Buy American and Hire American' Executive Order Issued April 18 – Impact on H-1B Work Visas

On April 18, 2017, President Trump issued his latest executive order (EO) impacting immigration. A portion of the “Buy American and Hire American” executive order targets H-1B work visas. The specific provisions detail the following:

Sec. 2 Policy.

  • (b) Hire American. In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).

Sec. 5. Ensuring the Integrity of the Immigration System in Order to 'Hire American'

  • (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.
  • (b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

For more information about this executive order, please read the full text.

Although specific details on the impact to the H-1B work visa were not outlined in the language of this EO, with the signing and release of this EO, Trump administration officials commented as follows:

  • The Department of Homeland Security (DHS), USCIS, Department of Labor (DOL) and Department of State (DOS) will continue to crack down on H-1B employers who are abusing the H-1B work visa program. This focus appears to be on the foreign IT staffing companies.
  • H-1B reforms will be proposed so that H-1B visas are awarded to the most skilled workers at the highest wage levels.
  • With the government agency examination proposed by the EO, additional H-1B fee increases will be considered.
  • The government will review and implement adjustments to prevailing wages.
  • Many comments have been made about the elimination and/or revision to the H-1B lottery system, and USCIS will review as part of the issuance of this EO.

As with other EOs from the Trump administration, this EO advises government agencies to review, assess and provide reports on the issues of “Buy American and Hire American.” It is important to emphasize that nothing in this EO changes current H-1B laws or regulations. Any significant change must be accomplished through new H-1B legislation. Changes to prevailing wage, salary level, and allocating H-1Bs to higher-skilled, more educated workers will require a change in the law through legislation. Changes to the H-1B work visa category cannot be done through an EO. Most changes must be accomplished with new legislation from Congress. At a minimum, if certain H-1B regulations are to be reviewed and revised, such changes also take time through appropriate review, notice and comment periods, and satisfying the requirements of the Administrative Procedures Act.

Suspension of H-1B Premium Processing

On March 3, 2017, USCIS announced that it would temporarily suspend premium processing service for all H-1B petitions for up to six months, starting April 3, 2017. The announcement forced employers to scramble to prepare and file H-1B petitions to extend current employees’ H-1B status and to re-think the strategy for filing cap-subject H-1B petitions. Premium processing service allows employer petitioners and employee beneficiaries to obtain processing (approvals, denials, requests for evidence) on H-1B petitions within 15 days, for an additional $1,225. Employees who already hold H-1B status must file petitions to extend their status and receive approval of that extension to renew driver’s licenses, obtain visas for travel abroad and have ready evidence of their ongoing work authorization. It is also easier for current H-1B workers to change H-1B employers more easily using premium processing. Currently, H-1B petitions filed without premium processing take upwards of nine months to be approved. During a recent meeting with the American Immigration Lawyers Association, USCIS indicated that premium processing would likely be brought back in increments, with H-1B extensions first to be brought back. However, the government provided no indication on the timing of when the suspension would be over and has continued to indicate that this suspension could last up to six months as initially outlined in the March 3 announcement.

For additional information regarding the suspension of premium processing, please see the following:

USCIS Rescinds 2000 Memo on Computer Programmers

On March 31, 2017, USCIS issued a new policy memo explicitly rescinding a 2000 memo relating to H-1B petitions involving computer-related positions. USCIS’ current guidance is meant to address inconsistencies in H-1B and H-1B1 adjudications between the Nebraska Service Center, the California Service Center and the Vermont Service Center. Specifically, the 2017 memo clarifies that petitioners may not rely solely on the Occupational Outlook Handbook (specifically highlighting the 1998-99 and 2000-01 editions used in support of the 2000 memo) to meet the burden of demonstrating that a particular computer programmer position is a specialty occupation and that additional evidence is required to establish that a computer programmer position meets the specialty occupation criteria defined by 8 C.F.R. 214.2(h)(4)(ii).

With the change in administration, it is clear that all items pertaining to H-1B positions are being reviewed, especially those concerning computer positions. This new policy memo is an additional attempt by the new administration to review H-1B work visa issues and to eliminate obsolete policies. The review of whether a computer-related position meets the specialty occupation standard is nothing new. For the last several years, including the most recent H-1B cap seasons, USCIS has and continues to issue Requests for Evidence (RFEs) asking for additional information on whether computer-related and other positions satisfy the specialty occupation standard. However, with this new policy memo, USCIS indicates that a position cannot simultaneously have a job classification and pay rate at the low end of the industry salary range, while at the same time listing specific job requirements and skills that are more complex and specialized. The memo advises USCIS officers to review the Labor Condition Application (LCA) to ensure the wage level designated by the petitioner corresponds to the proffered position and the claim that the proffered position is particularly complex, specialized or unique compared to other positions within the same occupation. As this year’s H-1B cap cases start to be processed by USCIS, we will see whether there is an even greater uptick (likely yes) in the number of RFEs issued on H-1B cap cases, the specific questions/issues raised by USCIS in the RFEs, and whether this new policy memo is specifically referenced in the RFEs issued by USCIS. This new policy memo is just additional movement from the Trump administration to focus on what it believes to be the correct application of the H-1B visa category – with specific scrutiny on computer occupations and IT outsourcing companies.

H-1B Fraud Investigations

On April 3, 2017, USCIS released an announcement that it will be implementing “multiple measures to further deter and detect H-1B visa fraud and abuse.” Although USCIS has been conducting H-1B site visits of H-1B petitioning employers for years, USCIS is now taking a more targeted approach to make the site visits by focusing on cases where an employer’s basic business information cannot be validated through commercially available data, on H-1B dependent employers, and employers petitioning for H-1B workers who will be placed off-site at another company’s location.

Concurrent with USCIS’ announcement, the DOL also issued an announcement on April 4, 2017, to protect U.S. workers by using its existing authority to initiate investigations of H-1B program violators, looking into changes on the Labor Condition Application (LCA) to provide greater transparency, and engaging stakeholders on program improvements to provide greater protections to U.S. workers.

The Department of Justice (DOJ) also issued an announcement on April 3, 2017, cautioning employers not to discriminate against U.S. workers, citing the antidiscrimination provisions of the Immigration and Nationality Act (INA) that prohibit employers from discriminating against U.S. workers because of their citizenship or national origin in hiring, firing and recruiting.

Conclusion

The Trump administration wants to change and vigorously enforce the proper use of the H-1B work visa category. Although nothing has changed under the current law and regulations of the H-1B work visa category, the Trump administration will use stricter scrutiny under the current provisions of this category while it attempts to work with Congress to enact new H-1B legislation and/or introduce new regulations. Certainly, there is more to come with the scrutiny, enforcement and potential change with the H-1B work visa category, and we will continue to provide you with updates.

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