The attacks on Trump’s new EO are growing in number as people review what the EO is trying to achieve. An article in The Federalist is worth reading. Another article at SHRM.org discusses the limitations that the President has in making meaningful changes to the H-1b program without legislative action.
Yesterday, President Trump issued an Executive Order impacting business immigration specifically, the H-1b visa. The order makes NO immediate changes to the H-1b program but, changes they are a coming. The EO essentially makes two (2) directives. First, it orders all agencies that touch the H-1b program to review all of its policies and regulations and write new policies and regulations to further protect US workers and prevent fraud and abuse in the H-1b program. Long-term, this may result in new proposed regulations which will be the subject of notice and comment. In the next few months, this may mean more policy memos, such as the memo released in late March which changed 20 years of policy and declared that many computer programmer positions would no longer be considered H-1b level occupations. As we saw with the introduction of the Neufeld policy memo in 2010, policy memos can have a major impact on a visa category. Immediately, I think we will see an increase in H-1b site visits; DOL LCA audits; 221(g) and administrative processing by US Consulates at visa stamping; RFE’s; use of the NOID in place of the RFE; NOIR issuances; and, denials. The President is proclaiming that H-1b visas harm US workers and there is rampant fraud and abuse and by his comments and this EO, he is directing his administration to do everything in its power to right this wrong. If we thought the “culture of NO” which was pervasive during the last Administration was strong, we now expect to see the “culture of HELL NO”
Secondly, the EO requests that the agencies involved devise a new scheme to replace the H-1b lottery and award the limited pool of H-1b visas to the “most-skilled or highest paid”. The assumption being made in this EO is that the majority of H-1b visas are awarded to low paid workers. New grads from US schools make up at least 20,000 of the H-1b lottery pool and by many estimates, at least a 3rd of the lottery winners and new grads are appropriately paid at the low end of the wage scale. There are a number of problems inherent in any scheme that awards H-1b visas only to the highest paid eg. rural areas will be at a major disadvantage over large cities; some occupations such as healthcare and research will not be able to compete with even the low end salaries paid to IT and engineers; and, large companies will have an advantage over start-ups.
Contrary to the “Buy American” provisions in this EO, there were no timetables set for the immigration related provisions.
The reaction to the President’s EO came quickly with most declaring this is nothing more than chest thumping and a horrible solution in search of a problem. One prominent immigration attorney quoted MacBeth (surely you know the line) and I must admit I responded to an email yesterday about this subject by sending back a pic of a person blowing hot air however, as I outlined above, this will have ramifications. There is no question that we need immigration reform but, it needs to be legislative in origin and needs to be based upon facts and not mere anecdotes tainted by either fear or hatred of immigrants.
Today, the USCIS announced that it had received 199,000 H-1b cap subject petitions and that it has completed the random lottery. We expect to start seeing receipts over the next few weeks and rejected cases to start arriving within the month. At this point, we do not have an estimate as to how long it will take to obtain all receipts and/or rejections but, last year, all were not processed until July.
In huge news, (not covered by CNN, Fox, or anywhere else, fake or otherwise) the EB3 category for India surged forward by one (1) entire day ! The rest of the Visa Bulletin was not much better as it announced that the EB1 category will soon retrogress for India and China and the EB2 category for the “all other world” and the Philippines will retrogress as early as July. Although summer retrogression is a necessary byproduct of the use it or lose it statutory scheme that allocates immigrant visas, it can be disruptive. We remain hopeful that among all of the talk of the need for immigration reform that retrogression relief is a topic being considered. You can find a copy of the May Visa bulletin here.
Employers Seeking H-1B Visas Should Not Discriminate Against US Workers Warns the U.S. Department of Justice
Yesterday, April 3rd was the first day the USCIS began accepting H-1B visa petitions that are subject to the cap for the next fiscal year (October 1, 2017 to September 30, 2018). The H-1B visa allows U.S. employers to employ temporarily foreign workers in specialty occupations including science and technology. The anti-discrimination provisions of the Immigration and Nationality Act (INA) prohibit employers from discriminating against U.S. workers because of their citizenship or national origin. This prohibition applies to hiring, firing and recruiting or recruiting for a fee. An employer may be found to have violated the INA’s anti-discriminatory prohibitions if they favor H-1B visa holders over U.S. workers. “The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.” The Immigrant and Employee Rights Section of the division (formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices) is responsible for prosecuting violations under these provisions which include citizenship, immigration status and national original discrimination in hiring, firing, recruitment or recruitment for a fee; unfair documentary practices; retaliation; and intimidation. Please contact Hammond Law Group if you have any questions about what may or may not be considered a violation of the INA’s anti-discrimination provisions.
On Monday, the USCIS announced new enforcement measures aimed at “cracking down on abuse in the H-1b program” In this announcement, they specifically targeted the staffing and consulting industry declaring that there is more likely to be fraud and abuse in situations where there is a 3rd party placement. They also expect to target small and new employers as they will often not show up in the VIBE database. Lastly, they also plan on targeting dependent employers. On the heels of the declaration that computer programmers may not qualify for the H-1b visa, there should be no doubt that the high tech industry is clearly in the cross-hairs of the Trump administration. If you happen to be an IT company that places people at 3rd party sites and you haven’t done an internal audit of your H-1b placements, Public Access Files, or procedures in a while, now is the time to do so. Even more troubling than the targeting of a specific industry is that the examiners will enter any site investigation with a pre-conceived notion that there is fraud and abuse. It is always tough to get a fair hearing when the judge believes you are guilty before any facts have been brought to light. Welcome to 2017 !
On Fri., USCIS HQ issued a new memo rescinding a 2000 memorandum and reminding employers that the occupation of “computer programmer” particularly level 1 positions may not meet the H-1b standards. The memo remarked that the basis of the 2000 memo i.e. the DOL’s OOH Handbook and the industry itself has changed considerably in the past 16 years and that simply designating a position as a “computer programmer” is not sufficient alone to meet the H-1b standards. This new memo is NOT a change in the law but, it is expected that examiners at the SC’s will utilize this memo in support of denials for petitions filed using this designation particularly, any that used a level 1 wage.
Happy April 1st, the day where hope of a coveted H-1b visa still feels in reach. Due to April 1st falling on a Saturday, the H-1b cap period this year begins on Monday April 3rd and all cases received between Monday and Friday April 7th, will be included in the lottery. Information about the cap being reached, the lottery being conducted and the commencement of receipts being mailed out can all be found on this very helpful USCIS page. I hope you all get a receipt !
As we are less then a week away from the H-1b cap filing period, many are speculating about the number of filings expected this year. Last year, there were almost 240,000 filings and the prior year had 233,000 however, many are predicting significantly fewer filings this year. Many of the largest users of H-1b visas see the current political climate and expect additional restrictions on the use of the H-1b visa as an opportunity to promote increased off-shoring of IT work thus reducing the number of H-1b visas needed. One such giant, Tata Consultancy Services has stated that they plan to file only 15% of the number filed last year. Other giant users including Infosys and Tech Mahindra have publicly stated that they have shifted strategies which are expected to result in fewer filings. Physical therapists are also expected to have fewer filing this year due to changes in Sec. 343 Healthcare Worker certification requirements forced on FCCPT by the USCIS. Others are simply tired of spending money and time on the preparation of petitions that have such little chance at ever being processed. On the other side of the equation are many US graduates eligible for STEM OPT extensions who are concerned that the Trump Administration may eliminate this work program and consequently, have sought H-1b lottery filings this year even though they may be entitled to two more years of employment as a student. Here in our office, we have attorneys giving a wide range of estimates with one predicting as many as 250,000. Personally, I am predicting about 160,000. We will report back as numbers are revealed and if you are in the lottery, we wish you the best.