“Hire American, Buy American” Executive Order Not Likely to Change H-1B Landscape Significantly

The Trump Administration’s April Executive Order, “Buy American, Hire American,” puts the H-1B visa program under increased scrutiny, but is not likely to have significant, if any, impact on the program for the foreseeable future.

In contrast to previous EOs that have mandated specific timeframes, this one calls for a formal review “as soon as practicable.” In addition, although the Order seeks to prevent fraud and abuse in the H-1B program, it addresses only “rules” (i.e., regulations) and “guidance” (i.e., guidelines issued by federal agencies through memoranda and other communications), rather than new legislation, and suggests that reform will occur only “if appropriate” and only “consistent with applicable law” – muted language with limited effect.  And finally, while the ostensible purpose of the Order is to protect “U.S. workers,” it also defines that term under a legal provision that includes permanent residents, refugees and asylees, all of whom hold the right to live and work permanently in the United States, just as U.S. citizens do, and thus are also “Americans” by the EO’s own terms.  In fact, tens of thousands of H-1B workers are sponsored for green cards by their employers every year and are now permanent residents.

H-1B visas allow U.S. employers to hire foreign workers for “specialty occupations”:  jobs that require at least a bachelor’s degree or equivalent experience in a field closely related to the job duties.

Since 2005, Congress has capped the number of new H-1Bs at 65,000 per year, with an additional 20,000 set aside for people who hold advanced degrees from U.S. colleges or universities. Employers may file new H-1B petitions only once a year, during the first five business days of April. Because the number of petitions filed during that period routinely outstrips supply by a factor of two or three, U.S. Citizenship and Immigration Services (USCIS) selects petitions that will be processed through a random computer‑generated lottery, with the odds of selection in past years at only 30 to 50 percent.

There is no specific salary threshold for an H-1B worker – a common misperception – unless an employer is classified under the law as “H-1B dependent” (based on percentage of H-1B workers in the overall workforce).  However, the Department of Labor does require all employers to attest that an H-1B worker will be paid the greater of either (1) the actual wage the employer pays other workers with similar qualifications who hold similar jobs at the same location, or (2) the prevailing wage for that occupation in the geographic area where the job is located.  The employer must also attest that it is not displacing U.S. workers by hiring through the H-1B program. To continue employing after the maximum 6-year stay expires, the employer must sponsor the H-1B worker for permanent residence (a “green card”) by showing, among other things, that no U.S. worker who meets the minimum requirements is available to fill the job.  Therefore, the EO’s underlying implication – that properly hired H-1B workers generally undermine wages and displace U.S. workers – is unfounded.

The most controversial aspect of the H-1B visa program has been its use by IT contractors to place workers at U.S. employers’ worksites, sometimes replacing U.S. workers in the process. These same contracting companies also often file speculative H-1B petitions in order to staff contracts they hope to obtain in the future.  This is a questionable use of the H-1B program, which requires a bona fide job offer and acceptance and a specific employer-employee relationship, and can displace large numbers of other employers’ petitions in the annual lottery. Optimally, longer-term consequences of any H-1B program review will establish a fairer annual selection method, perhaps including realistic caps on the number of petitions any one employer may file, and more stringent proofs of wage and displacement attestations.

In the meantime, it would not be surprising to see an increase in unannounced worksite visits and audits by government agencies, including USCIS and the Department of Labor. USCIS has announced on its website, Putting American Workers First, that it is currently targeting enforcement actions at employers whose basic business information cannot be validated through commercially available data; who have a high ratio of H-1B workers as compared to U.S. workers; and who petition for H-1B workers to work off‑site at another company or at another organization’s location (i.e., outsourcing companies).

See also: The Future of the H-1B Visa Program Under The Trump Administration, a 5-minute video in which Adam Rosser and Emily Burkhardt Vicente discuss the future of the H-1B visa program and concerns of the business community.

June 2017 Visa Bulletin—Significant EB-1 Retrogression for China and India

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the June Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China EB-1 retrogresses to January 1, 2012, EB-2 continues a slow forward march advancing to March 1, 2013, and EB-3 is stalled at October 1, 2014
  • India EB-1 retrogresses to January 1, 2012, EB-2 moves ahead slightly to July 1, 2008 and EB-3 advances six weeks to May 15, 2005
  • Philippines EB-3 jumps ahead four months to May 1, 2013
  • Worldwide EB-3 moves forward one month to April 15, 2017

China EB-1 and India EB-1 are expected to become current again in October 2017.

PLEASE NOTE: USCIS has not yet announced if it will accept I-485 applications in June based on the Department of State’s Dates for Filing chart. However, the trend over the last several months has been to NOT honor the Dates for Filing chart, and instead only accept I-485 applications based on the Final Action Dates as listed above.

The Future of the H-1B Visa Program Under The Trump Administration

There has been a flurry of activity and uncertainty related to immigration issues since President Trump took office. Hunton & Williams partners Adam Rosser and Emily Burkhardt Vicente discuss the concerns faced by the business community and the future of the H-1B visa program in the US.

View the 5-minute video here.

FY2018 H-1B Lottery Held for 199,000 Petitions

The USCIS received 199,000 petitions for the FY-2018 H-1B visas that will become available on October 1, 2017.  The lottery was held on April 11, 2017, for both the master’s cap cases (20,000 H-1B visas) and the regular cap cases (65,000 H-1B visas).  The USCIS is in the process of sending receipt notices by regular mail to those whose petitions were selected in the lottery.  We expect that the process to mail all of the notices will take several weeks to complete.  Petitions that were not selected in the lottery will be returned (with the uncashed filing fee checks) over the next few months.

May 2017 Visa Bulletin—Little Movement in All Employment-Based Categories, Except Philippines EB-3

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the May Visa Bulletin, including Final Action Dates and changes from the previous month:

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FY2018 H-1B Cap Reached

Not surprisingly, the USCIS announced today that the FY2018 H-1B cap has been met.  The USCIS will hold a lottery for the H-1B visas as early as next week.  Those selected will receive receipt notices in the mail; those rejected will have their filings returned, along with the filing fee checks.   We expect that the receipt notices for those selected will begin to trickle in later this month through most of May; the rejected petitions will take longer to return.  The USCIS has not yet released the number of petitions it received.  Please check back for updates.

USCIS Rescinds Old Guidance on H-1B Computer Programmers and Announces Targeted Scrutiny of IT Contractors

On, March 31, 2017, U.S. Citizenship & Immigration Services rescinded a 17-year-old memorandum issued by the Nebraska Service Center regarding computer-related positions as H-1B “specialty occupations.”  For the last 10 years, all H-1B petitions have been processed at the Vermont and California Service Centers, so the memo has not been in use.  Since NSC recently began accepting H-1B extension petitions again, USCIS has rescinded the memo, stating it is outdated and inconsistent with the agency’s current approach to H-1B petitions for computer jobs.

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USCIS’s Nebraska Service Center Announces Delays In Adjudication of H-4 and H-4 EAD Applications Concurrently Filed with Premium H-1B Petitions

Due to the upcoming temporary suspension of premium processing for all H-1B petitions on April 3, 2017, USCIS has experienced a dramatic increase in the number of premium processing cases it has received.  The Nebraska Service Center, which processes all H-1B extension petitions for non-cap exempt employers containing no changes to the beneficiary’s terms of employment, has announced that it will focus its resources on processing H-1B petitions in accordance with premium processing requirements.

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Trump Signs New Travel Ban Executive Order

President Trump signed today the long-awaited revised travel ban Executive Order entitled, “Protecting The Nation From Foreign Terrorist Entry Into The United States”, effective 12:01 a.m, Eastern Standard Time on March 16, 2017.  The list of affected countries includes Sudan, Syria, Iran, Libya, Somalia, and Yemen; Iraq was removed from the list.  Key provisions are as follows:
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