H-1B

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Beginning in the summer of 2017, employers began to see an increase in Requests for Evidence (RFE) from USCIS on H-1B petitions alleging that the occupation was not a specialty occupation because the employer assigned a level 1 wage. Two recent decisions from the Administrative Appeals Office (AAO) indicate that this may no longer be an concern.

Some background to this issue is helpful. The H-1B visa is available for foreign nationals who will be performing services in a specialty occupation. The specialty occupation is a field that requires a specific educational background as a minimum qualification to perform the duties of the position. The statute also imposes an obligation to pay the “prevailing wage” or the actual wage, whichever is higher, as a measure to protect U.S. workers against unfair competition from foreign workers willing (or coerced) to work for substandard wages. The employer may calculate the prevailing wage by using the data provided by the Bureau of Labor Statistics for occupations and locations nationwide. The Department of Labor has issued guidance on how to determine which of the four wage levels provided in the data should be selected, based upon the normal requirements for the occupation compared to the employer’s requirements for the specific position.

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Continue Reading USCIS Administrative Appeals Office issues important non-precedent decisions on wage level determinations for H-1B petitions

President Trump issued yet another executive order addressing immigration issues on Tuesday, April 18, 2017. This order, entitled “Buy American and Hire American,” addresses federal procurement policies and reiterates the established policy to purchase goods manufactured in the United States. The order also addresses the H-1B visa. While it does not change any law, regulation or policy, it comes only one day after USCIS once again announced that 199,000 H-1B petitions were received during the first five business days of April to overwhelm the 85,000 limit on visas for the next fiscal year.

Substantively, the executive order merely orders the federal agencies that administer the H-1B program to enforce all laws related to the H-1B visa, something the federal government is already required to do. In addition, the President has ordered these agencies to examine how the program can be improved to protect American jobs. However, the President clearly intends this executive order to focus attention on the H-1B visa. This was made clear in the “Gaggle”[1] published on the White House website earlier the same day. This “Gaggle,” a transcript of a conversation between an anonymous “Senior Administration Official” and reporters aboard Air Force One, was published on the official White House website. It is not clear how a document published on this website is “not for attribution” or aligns with President Trump’s criticism of anonymous sources, but nevertheless, it is a discussion of the executive order and seeks to provide some insight into the thinking behind the order.

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Continue Reading President Trump’s executive order on H-1B visas

On Friday, March 3, 2017, United States Citizenship and Immigration Services (USCIS) announced that it would suspend premium¹ processing for all H-1B petitions filed on or after April 3, 2017. Because April 3 is the first day that cap subject petitions² can be filed for Fiscal Year 2018, this puts a halt on premium processing for all cap subject cases that will be accepted in April, as well as all other H-1B petitions, both change of employer petitions and extensions. According to the notice, the suspension of premium processing may last as long as six months.

Processing times for H-1Bs have grown over the past 2 years, increasing from an average of two months to nearly a year in many instances. USCIS has struggled with an ever-increasing case load, and has tried several strategies to alleviate the long processing delays. Last summer, extension petitions were routed from the California Service Center to the Nebraska Service Center, increasing the offices that process H-1B petitions from two to three. All new cases continue to be processed at either the California or Vermont Service Center, with all cap exempt³ cases filed in California.…
Continue Reading USCIS to suspend premium processing for H-1B petitions

Various news sources have been reporting on certain changes that may be coming to the H-1B program under the new Trump administration.

First, there is a draft copy of an Executive Order titled, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” The draft contains several “orders” directing governmental agencies to propose and develop regulations pertaining to foreign nationals working in the United States. The draft that is currently available does not contain any concrete ideas as to the nature of any proposed or amended regulations. Furthermore, if this Executive Order were to be signed, it would take months for the affected agencies to review, propose and develop such regulations.

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Continue Reading Changes to the H-1B program under the Trump Administration?

President Trump issued three Executive Orders during the first week of his administration to fulfill his campaign promises. During the campaign, President Trump promised to build a wall along the southern border with Mexico and to impose a ban on the admission of Muslims until the new Administration could impose “extreme vetting” of all non-citizens admitted to the United States. A third Executive Order seeks to withdraw federal funding for sanctuary cities. The implementation of these Orders has been uneven, instilling fear and uncertainty among travelers, their employers and families, leading to numerous demonstrations in cities and at airports throughout the country.

While the three orders addressed different aspects of immigration, the most impactful order was the third one signed and immediately implemented on the late afternoon of Jan. 27, 2017. This order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” suspended immediately the admission of all refugees for 120 days, Syrian refugees indefinitely and it prohibited the admission of all citizens from seven designated countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) with both immigrant and nonimmigrant visas for 60 days. Certain diplomatic visa holders were exempted from the Executive Order. While the Order provided for individual exemptions on a case by case basis, in the national interest, the standards and the procedures to apply for this exemption were not identified in the Order.…
Continue Reading President Trump’s immigration Executive Orders

Spring is right around the corner, so we’d like to remind our clients, especially U.S. employers, to begin considering filing H-1B petitions for prospective new foreign national employees. These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2014 for employment beginning no earlier than October 1, 2014 (this is the beginning of the government’s 2015 fiscal year, which runs from October 1, 2014 to September 30, 2015). The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in a particular field is required (for example, engineers, teachers, accountants, and many professional information technology positions). The problem is that there are limited numbers of H-1B visas available each year, and this year we expect these numbers to be quickly claimed.…
Continue Reading Prepare for the H-1B Cap: Filing Season Begins April 1, 2014

A new year brings new opportunities and challenges, and it’s time for American employers to begin considering filing H-1B petitions for prospective new foreign national employees. The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in…