Although I routinely say that I prefer a shortened H-1b approval over a denial, I often see the frustration on the part of my IT and engineering staffing and solutions companies when they get an H-1b approval shortened to the date of the current JO,PO, or SOW expiration. We can only assume that USCIS examiners are not ignorant to the realities of PO’s etc and fully recognize that they are often issued in quarterly or yearly periods that do not necessarily reflect the full-time of the engagement; consequently, we must assume that the USCIS practice is but, another effort to create a chilling effect on the use of H-1b visas. Now it appears that this practice has shifted from the staffing industry to also impact other industries. Check out this recent Bloomberg article. From my own practice, I recently had a Fortune 500 client asked to prove that they had sufficient work for an IT professional to do for the full 3 years sought.
As confirmation hearings begin on Senator Jeff Sessions becoming the next Attorney General, it is enlightening to hear what he has said on H-1b visas. In an interview published in 2016 for Breitbart, Sessions made claims such as “over half of US STEM grads can’t find jobs”; “IT wages have not gone up since 2000” and, “there is no shortage of skilled workers in the U.S.” Check out the full story here.
In the first week of the new Congress, Rep Issa (R-CA) re-introduced a bill HR 170 designed to reform the H-1b program. The key component in the bill would raise the dependency exemption from $60,000 to $100,000. This same bill previously failed at the Committee level in 2016. It is expected that this will be but, the first, of bills introduced to change the H-1b visa program.
Concerns that the H-1b visa will be significantly changed under Trump continue to mount. As articles are published, we will provide links to those that are from reputable sources.
Nov 27th, 2016 Livemint.com
The Omnibus bill has passed and it includes major increases in the filing fees for H-1b and L-1 visas but, the language makes the additional H-1b filing fee applicable ONLY to those companies that have > 50% of their workforce on L visas. In contrast, the increased L-1 filing fee applies to companies that have > 50% of their workforce on combined L-1 and H-1b visas. As a practical matter, the additional H-1b fee will not apply to US based companies and in all likelihood apply to only a hand-full of companies. This language is a direct attack at large Indian out-sourcing companies.
In a story sure to get the attention of legislators in Washington D.C., and in my humble opinion rightly so, The New York Times ran a story today about H-1b workers being placed at Disney and the U.S. workers they were replacing being required to train them. The story was picked up and ran on the front page of msn.com and many other news outlets. Maybe this will be the impetus for Congress to get serious about immigration reform and craft legislation that recognizes the increased need for H-1b workers and provides for the protection of U.S. workers. No one should be asked to train their cheaper foreign replacement. At a time when the unemployment rate for IT workers is under 2% and we just had over 230,000 H-1b visa petitions filed for only 85,000 spots, this black eye on the H-1b program may be coming to light at the right time to force reform.
On May 21,2015, the USCIS issued new policy guidance for H-1b employers. This guidance was issued following the April 9th Simeio Solutions precedent decision from the AAO which determined that a change in employment outside the area of intended employment was a material change and required the filing of an amended petition. This ruling was a major departure from prior USCIS policy and practice. The May 21st USCIS memo was designed to explain how that new policy will be implemented. The memo makes the following points:
1. An amended petition must be filed BEFORE an H-1b employee can be moved to a new worksite outside the original area of intended employment.
2. A deadline of Aug 19, 2015 has been established for all employers to file amended petitions to reflect the worksite locations of any H-1b worker who has been moved from their original petition location.
3. If an amended petition is pending and a subsequent move is made, a 2nd amended petition can be made and an employee moved. There is no requirement to obtain a decision in the 1st case before filing the 2nd case.
The Simeio Solutions decision has a huge impact on employers in the staffing industry and now this memo requires that an amended petition must be filed before moving an employee, the impact grows. Further, with the memo making it clear that the new policy will be applied retroactively to existing H-1b workers, albeit, with a 90 day grace period, the negative consequences to U.S. employers will be even larger and, the benefit to the coffers of the USCIS will be as well. With an economic impact to U.S. employers easily exceeding $100 million annually, it is unclear how the USCIS decision makers believe that this change in policy is not in violation of the Administrative Procedures Act and should not have gone through the formal rulemaking procedure. Whether any company or trade association challenges this new policy on APA grounds is yet to be seen.
As a practical matter, H-1b employers should take the following actions:
1. Confirm the current worksite locations of all H-1b employees and determine if that worksite has changed from the original petition and, if necessary, take steps to file an amended petition prior to Aug 19, 2015.
2. Communicate to sales and deployment teams that any change in worksite location will take at least 10 days and there is an economic cost to said move that must be considered.
Last week, Computerworld published comments from Senator Hatch in which he essentially called out Senator Grassley for being a protectionist and simply ignoring the economic realties of the global marketplace that exists in 2015 by virtue of his plan to prevent an increase in the H-1b cap without including unnecessary and onerous requirements. The proposals of Senator Grassley, though seemingly reasonable on the surface, would essentially destroy the H-1b visa particularly for IT staffing companies who are a large user of the H-1b program. Given Senator Grassley’s history of attacks on the staffing industry, his position should not be a surprise. It is refreshing to see Senator Hatch take a pro business and pro American position however, given Senator Grassley’s position as the chair of the Senate Judiciary Committee, he may have sufficient power to single-handedly prevent business immigration reform from happening. It should be noted that both Senators are Republicans and senior members of the Senate so this type of public exchange is a bit unusual. The back drop of this discussion is the upcoming April 1st H-1b cap lottery filing deadline at which, literally 1000’s of professionals, many of them with U.S. graduate degrees, hired by U.S. employers, will be rejected and told that their services are not wanted in the U.S. Last year, over 85,000 professional workers were rejected and many think this year, there will be even more. The 85,000 rejected workers would’ve been tax-paying productive workers and as countless economic studies have shown, H-1b workers serve to create U.S. jobs, not eliminate them. The continued insistence by politicians such as Senator Grassley, on building walls, rather than building the American economy remains troubling. The foreign outsourcing industry is grateful for his efforts though.
In a report released earlier this week, the NFAP claimed that the Senate’s proposals to restrict the usage of H-1b’s were not based on sound evidence and represented poor economic policy. This report was issued before Sen. Grassley and others introduced amendments which would create even further restrictions on the H-1b. Whether or not the Senate will allow uncontroverted facts and sound economic policy to get in the way of imposing restrictionist policies is yet to be seen.