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H-1B Rumors and Facts

6 Apr

Since his inauguration, President Trump has focused on a series of initiatives, many of them aimed at various components of U.S. immigration enforcement. Most recently, the administration has issued guidance to address perceived abuses in the H-1B visa program. Additionally, H-4 work permits have come under fire, and other issues related to the H-1B visa program are making headlines.

H-1B Computer Programmers

In December 2000, the director of the U.S. Citizenship & Immigration Services (USCIS) Nebraska Service Center confirmed that USCIS generally would consider computer programmer positions to be “specialty occupations,” and therefore eligible for H-1B visas. On March 31, 2017, USCIS issued a Policy Memorandum rescinding the previous guidance. The announcement came as immigration attorneys nationwide were shipping out what will likely be hundreds of thousands of H-1B petitions for entry into the annual “H-1B lottery” for visa numbers under the FY-2018 H-1B quota.

This shift in policy has generated speculation that computer programmers will no longer qualify for H-1B visas. The new policy memorandum does not preclude computer programmer positions from qualifying; however, there is no longer a general blanket understanding that computer programmer positions do qualify. Rather, it will be necessary to specifically address the complexity of duties and individually demonstrate how a specific computer programmer position qualifies as a “specialty occupation.” Pursuant to USCIS regulations, a “specialty occupation” involves the “theoretical and practical application of a body of highly specialized knowledge” and generally “requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.”

Based on this new policy statement, entry-level computer programmer positions and jobs requiring only code entry may no longer be treated as meeting the regulatory requirements. Each individual case will be assessed on its merits, and it will be necessary to focus on the specific job duties and requirements for the position. As always, Foster will work closely with clients to evaluate each position individually and to provide appropriate, individualized advice and case preparation.

H-1B Site Visits

The USCIS issued a news release on Monday, April 3, 2017, that “USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees.” The focus will be on H-1B dependent employers, off-site placement of H-1B workers at third party worksites, and cases wherein the employer’s corporate information cannot be verified through sources such as Dun & Bradstreet reports.

H-1B site visits are not new. USCIS has for several years visited employers and H-1B worksites to verify the facts presented in H-1B petition filings. Such visits might have been random or targeted. What is clear from the April 3rd USCIS announcement is that H-1B dependent employers and those filing H-1B petitions for third-party placement should prepare for a higher rate of site visits, and perhaps a more detailed list of questions that USCIS may ask of both the employer representatives and the employee. Such visits may take place prior to approval of the H-1B petition, or several months or even a year or more after a petition is approved.

To prepare for H-1B site visits, employers should consult with their Foster immigration attorney to establish and implement a formal protocol for routing USCIS inquiries and meeting with USCIS officials who may appear without notice at the worksite. Having procedures in place to address future site visits may help relieve anxiety and avoid the perception that the employer is not prepared or is unaware of the facts of the H-1B employment.

H-4 Employment Authorization Documents (EADs)

On February 25, 2015, the U.S. Department of Homeland Security (DHS) published a new rule permitting certain H-4 spouses of H-1B workers to apply for work authorization. The rule went into effect on May 25, 2015, and covers applicants whose H-1B spouses are beneficiaries of an approved I-140 Immigrant Visa Petition or who have already become eligible for additional extensions of H-1B status beyond the normal sixth year of H-1B eligibility.

Shortly after the rule was published, it was challenged in court but is not subject to any injunction while litigation continues. Additionally, the Administration filed a motion requesting additional time to reconsider the regulation. It is possible that the regulation could be modified or even rescinded through additional rulemaking. Unless and until the rule is modified through new rulemaking or is invalidated by court action, eligible H-4 spouses may continue to apply for employment authorization and may request renewal of their existing EAD (employment authorization document) cards. Generally, applications may be filed 180 days in advance of current EAD expiration. H-4 spouses should contact their Foster immigration attorney to initiate new EAD applications or to renew existing work authorization.

Anti-Discrimination

U.S. law generally prohibits employment discrimination based on national origin or citizenship status. On April 3, 2017, the Department of Justice Office of Public Affairs issued a news release cautioning employers not to discriminate against U.S. workers and noting that “employers violate the INA if they have a discriminatory hiring preference that favors H-1B visa holders over U.S. workers.” While the announcement amounts to a restatement of the law, the timing appears to signal additional focus on investigations into allegations of potential abuse of the H-1B visa program, perhaps particularly in the context of H-1B dependent employers who employ H-1B workers at such a high percentage of their overall workforce. These same employers are the target of more focused H-1B site visits.

In related developments, the U.S. Department of Labor has indicated that the department will take additional steps to protect American workers. Specifically, DOL has committed to using its authority to investigate H-1B program violations, evaluating the Labor Condition Application (LCA) filed in support of H-1B petitions to determine whether future LCA changes might be made, and continuing to engage stakeholders on potential improvements to the H-1B program. DOL also announced a dedicated email address for reporting alleged abuses of the H-1B program.

Wage Requirement

Employers are reminded that they must pay the H-1B worker the required wage, which is the higher of the prevailing wage or the actual wage paid to other employees with similar experience and qualifications for the specific employment in question. Employers must also pay the H-1B worker the wage stated on the H-1B petition and LCA. Should circumstances change after filing the petition such that a reduction in wages is required, an amended petition may be required. Employers should contact their Foster immigration attorney for additional information regarding legal requirements before decreasing wages.

Foster routinely works with clients to ensure clients have policies and procedures in place to effectively comply with the Form I-9 Employment Eligibility Verification requirements without inadvertently engaging in unfair immigration-related employment discrimination. For assistance in the development and implementation of appropriate compliance policies, employers should contact their Foster immigration attorney.

Foster LLP will continue to closely monitor these and other actions impacting on the H-1B program and potential eligibility for immigration benefits. We will provide additional information in future Immigration Updates©, on our firm’s website at www.fosterglobal.com.