h-1b

Do I (Still) Qualify for the H1B Master Cap?

On May 31, 2017, USCIS released a memo clarifying that to be eligible for an H-1B cap exemption based on a Master’s Degree, the school from where the beneficiary obtained their degree has to have been a U.S. “institution of higher education” when the degree was earned. The policy memo cites to Matter of A-T- Inc., an “adopted decision,” meaning the decision is binding policy guidance for all USCIS personnel.

As you probably know, there are only 65,000 H-1B visas available under the cap each year, with an additional 20,000 for people who have earned a master’s degree or higher in the U.S. In their decision, the Administrative Appeals Office (AAO) stated, “[U]nder our interpretation, an individual who earns a degree from a (pre-)accredited institution may continue to qualify for the Master’s Cap exemption even if the institution later closes or loses its (pre-)accreditation status.”

This will be an important memo to keep in mind as USCIS has, in some instances, gone back and reviewed a beneficiary’s initial H1B petition – and which cap they were counted under – while adjudicating a current extension. Even when the beneficiary has been in the U.S. for over 5 years.

Attacks on Trump’s EO

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.

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.

USCIS issues new memo on Computer Programmers and H-1b qualification

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.

TechServe Alliance Defends the H-1b visa

In the face of recent attacks, which have portrayed the H-1b visa as a blight on the highly skilled but, unable to find employment U.S. worker; Mark Roberts, CEO of TechServe Alliance pens a well thought out article which describes the need for access to talented workers, defends the proper use of the H-1b visa, and, implores those legitimate users of the H-1b visa to not let your voice go unheard. There is no question that there is some abuse of the H-1b visa program but, Congressional studies commissioned by none other than the H-1b hater in chief, Senator Grassley have proven that said abuse is negligible. The IT and engineering industry will be proponents of well thought out H-1b reforms that provide for protection for the US worker and wages, while at the same time providing timely access to talent that is consistent with the fast paced demands of U.S. employers competing in a global marketplace. For Congressional reforms to be meaningful, they will need to cut through the rhetoric of fear and hate and be led by those not so easily influenced by the 1 in 1000 but, by the 999.

Rough week for H-1b visas

The week started with a 60 minutes news segment and now a Bloomberg article. Many expect the increased and widespread negative publicity to accelerate the consideration of legislation to make sweeping changes to the H-1b visa. Senator Grassley wasted no time in jumping on the opportunity to push his proposed bill. However, as we have seen with healthcare, a campaign slogan does not always equate to legislation being passed.

Shooting of H-1b workers saddens and stirs fear

The shootings of two H-1b engineers near Kansas this past week, resulting in the death of one of them has saddened and stirred fear among the Indian community. We offer our condolences to his family. Many are quick to link this shooting to the nationalistic and inflammatory rhetoric which has become commonplace since President Trump began his campaign and has continued since he took office. The White House was quick to deny any link. India’s Foreign Secretary, S. Jaishankar will be in the U.S. this coming week for an official visit and has pledged to discuss this incident.

H-1b Visa News

During a time when the H-1b visa is under seemingly constant attack, at least one Senator thinks we need an expansion of the program, along with greater US worker protections. Get an update on Senator Hatch’s plan from CIO.com

What a Trump Presidency means for you ?

Although much of the immigration related Trump campaign for Presidency focused on “building a wall” and other enforcement issues, he did make some far-reaching comments such as “the H-1b visa should be eliminated” only to back track on that position later. He has surrounded himself with some immigration advisers, most notably, Senator Sessions who are not only opponents of illegal immigration but, also widespread critics of legal immigration. We must keep in mind not to believe everything we hear but, as information comes out about President-elect Trump’s immigration team and his planned policies on legal immigration, we will share them here. We will also share articles of interest that discuss the impact on IT staffing in general. Today’s article comes from Staffing Talk.

DOL Finds that in Certain Circumstances You Can Deduct H-1B Visa Fees from Employee Paycheck

The U.S. Department of Labor, Office of the Administrative Law Judges (OALJ), has determined that in certain circumstances, an employer can deduct H-1B visa fees from an employee’s final paycheck.

In this case, Matter of Woodmen of the World Life Insurance Society, October 26, 2016, the OALJ determined that Woodmen Life did not violate any DOL regulation by deducting $5800 from the employee’s final payment for reimbursement of H-1B attorney and filing fees pursuant to an agreement which was entered into voluntarily by the employee.

Although the DOL found that §655.731(c)(9), which speaks to “authorized deductions from an employee’s required wage and specifically prohibits an employer from seeking recoupment of H-1B attorney fees and expenses from the required wage, even if the employee consents” was not applicable to this case since the deduction for the attorney’s fees came from the benefits side of the equation and not from the employee’s required wage, the DOL’s stated that the regulation is “far too broad and not supported by the plain language of the regulation.” The DOL further clarified that “an H-1B employer is prohibited from imposing its business expenses on the H-1B worker – including attorney fees and other expenses associated with the filing of an LCA and H-1B petition – only to the extent that the assessment would reduce the H-1b worker’s pay below the required wage, i.e. the higher of the prevailing wage and the actual wage.”