United States: Employers Face H-1B Work Visa Challenges In 2018

Last Updated: February 14 2018
Article by David Whitaker

Companies that anticipate filing petitions for new H-1B visas to employ foreign guest workers in a "specialty occupation" should begin working now with their immigration counsel to ready their petitions for filing with the United States Citizenship and Immigration Service (USCIS).  Specialty occupations eligible for employment in H-1B status are those for which a four-year bachelor's degree or higher is a minimum entry level requirement.  Examples of H-1B eligible occupations include engineers, accountants, physicians, architects and attorneys.  Spouses and children (under the age of 21) are eligible to accompany the alien guest worker in H-4 dependent status.  An employer may employ the alien guest worker for up to 6 consecutive years in the United States in H-1B status, and further extensions of status may be possible in the event the employer elects to sponsor the guest worker for an employment-based green card (also known as permanent residence status).  Initial H-1B petitions are typically approved for a three-year period that the employer can extend through subsequent extension petitions.

USCIS begins accepting petitions for new H-1B visas on April 1st of each year (in 2018, it will be April 2, as April 1 falls on a Sunday), with an effective employment start date of October 1 if the petition is approved. Each year there is a cap on the maximum number of H-1B visas that will be issued – a 65,000 base cap plus an additional 20,000 for beneficiaries who hold a U.S. master's degree or higher.  In recent years the number of new H-1B petitions filed has greatly exceeded the number of available H-1B visas, which has resulted in the USCIS implementing a "lottery," with only those randomly selected employer petitions being processed. USCIS is reported to have received 199,000 H-1B petitions last April – more than 3 times the number of H-1B visas available.  Next April year employers can likely expect a similar lottery scenario.

President Trump was outspoken during the 2016 presidential campaign about the need to reform the H-1B visa program.  On April 17, 2017 he signed an executive order that directed federal agencies to implement a "Buy American, Hire American" strategy, which included a section geared at immigration reform. The order directed federal agencies (including the Secretary of Labor) to suggest reforms to ensure H-1B visas are given to the "most-skilled or highest paid" beneficiaries.  The order also requested the agencies propose new rules for preventing fraud and abuse of work visas. "Right now, H-1B visas are awarded in a totally random lottery — and that's wrong," he said indicating disagreement with the current USCIS lottery system at the time he signed the order.  So far the executive order has not resulted in any regulatory reforms to the H-1B visa application process.  There have been some legislative proposals targeting the H-1B visa program, including increases to minimum salary required to be paid by employers and prohibitions against employers hiring H-1B guest workers to displace U.S. citizen employee. But the prospect for passage of this legislation is very uncertain.

While there have been no legislative or regulatory reforms to the H-1B visa program to this point, there are signs that the USCIS is subjecting these visa applications to a higher level of scrutiny through the Agency's increased used of the "request for evidence" process– in which the petitioning employer is requested to submit additional evidence to support key elements of the petition, such as the existence of a bona fide employment relationship, or whether the job that is the subject of the petition meets the definition of a "specialty occupation."  Requests for evidence also have the effect of producing substantial delay in the processing of the work visa petition.  Accordingly, employers should carefully explain the guest worker's eligibility for H-1B status in the employer support letter and submit ample evidence to support each required element given the increased scrutiny by USCIS in processing H-1B work visa petitions.

Employers who utilize the USCIS work visa program should also take note of a recent change that affects how the Agency will process petitions seeking extension of work visa status for their current work visa holders.  In the past, USCIS had exercised deference in determining eligibility when processing employer petitions for extensions of for work visas previously approved by the Agency.  In a memorandum issued on October 23, 2017 the USCIS discontinued this practice, and made clear that petition examiners are required to thoroughly examine extension petitions for eligibility without regard to the fact that the Agency previously approved the employer's original petition to employ the alien beneficiary.  As a consequence, employers who anticipate filing petitions for extension of H-1B (and other types of work visas) should take care to support their extension petitions with the same level of evidence as they would in filing an original work visa petition on behalf of the beneficiary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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