H-1B Employers Are Feeling the Squeeze Ahead of Visa Filing Season

 

Roy Maurer By Roy Maurer March 19, 2019
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Rebecca Peters, director of policy engagement at SHRM, speaks at the 2019 Society for Human Resource Management Employment Law & Legislative Conference.

​Since President Donald Trump issued the Buy American and Hire American executive order in 2017, the administration has scrutinized H-1B petitions more closely, challenged eligibility for the visas more frequently, and increased enforcement more thoroughly with audits and investigations.

"There was a time when filing for an H-1B visa was pretty predictable," said Andrew Greenfield, a partner in the Washington, D.C., office of global immigration law firm Fragomen. "It's not predictable anymore, and employers have had to learn to adapt," he told the 2019 Society for Human Resource Management Employment Law & Legislative Conference on March 19 in Washington, D.C.

Starting April 1, U.S. Citizenship and Immigration Services (USCIS) will accept new H-1B visa requests for foreign workers with specialized skills. But it's expected that the demand for H-1B workers will once again far exceed the supply of visas, resulting in a lottery to determine which petitions will be selected. But that's not the only challenge facing employers.

"Between the annual quota and the difficulties in getting H-1B visas approved, employers must understand the risk and file for these cases with a deep understanding of what the government is looking for," Greenfield added.

In fiscal year (FY) 2018, the rate of H-1B approval was 84 percent compared to 96 percent in 2015, according to USCIS. The percentage of requests for evidence (RFEs) that an application is legitimate shot up to 62 percent, compared to 2015's 35 percent.

The top reasons for RFEs and visa denials are that:

*The job is not qualified as a specialty occupation. A specialty occupation is a position that requires highly specialized knowledge plus a bachelor's degree or higher in a specific field. "It's now a big question mark as to how the government is interpreting what type of job is a specialty occupation," Greenfield said.

  • The H-1B worker is not qualified for specialty occupation work.
  • A valid employer-employee relationship with the worker has not been proven.
  • Qualifying off-site work for the duration of the visa has not been established.

[SHRM members-only toolkit: Obtaining U.S. Employment Visas]   

New H-1B Regulations

USCIS is moving forward with its plan to reverse the order of the regular and advanced-degree lotteries for this year's filing season. The change is expected to result in more than 5,300 additional H-1Bs allocated to individuals with U.S. advanced degrees and decrease the number of visas to other petitioners with U.S. bachelor's degrees or foreign advanced degrees.

The agency announced that it would postpone the implementation of an electronic registration requirement for employers until next year's filing period.

Employers can breathe a sigh of relief that USCIS did not rush through the registration requirement this year and that the agency made the announcement early, said Anantha Paruthipattu, founder and principal attorney at Paruthipattu Law Firm, based in Herndon, Va.

Registration is a nice benefit for employers, Greenfield said. "Next year, employers won't have to file full soup-to-nuts H-1B petitions, just to get most of them rejected."

Rebecca Peters, director of policy engagement at SHRM, said that the most anticipated regulations for H-1B employers scheduled for release this year include rules:

  • Redefining employer-employee relationship and specialty occupation in the H-1B context.
  • Rescinding work authorization for the spouses of H-1B workers with approved or pending green cards.

"Work authorization for … spouses [who hold H-4 visas] is being threatened," Greenfield said. "It's a serious concern for dual-income families and may have a negative impact on recruitment. The U.S. could become less attractive for foreign nationals, especially from India and China, where the green card process could take many years and their spouses will be unable to work during that time."

Guidance Changes

There are also several recent USCIS guidance changes which have H-1B employers worried. In 2017, the agency rescinded a previous policy that allowed officers processing visa extensions to defer to prior approvals when the petition involved the same parties and underlying facts as the initial petition. USCIS officers are now expected to thoroughly review each extension request to determine eligibility, even when nothing has changed with the worker's situation and there has been no evidence of error or fraud. 

Another 2017 memo made it more difficult for entry-level, lower-paid foreign national computer programmers to be granted H-1B visas. The agency clarified what had already been in practice—that entry-level computer programmers are not presumed to be eligible for H-1B visas. USCIS adjudicators have more discretion to require additional proof that entry-level computer programming jobs qualify as a specialty occupation.

"It's not really a change, it's more a clarification," said Shanon Stevenson, a partner in the Atlanta office of Fisher Phillips and a member of the firm's Global Immigration Practice Group. "Computer programmers can still qualify for an H-1B but petitioning employers must show that the position fits the criteria for a specialty occupation."  

Greenfield stressed that one of the most important takeaways for employers petitioning for H-1B workers is knowing that "it's not just whether the job requires a degree, it's about whether it requires a degree in a specific specialty or course of study."

He said that employers need to think differently about their job requirements for H-1B workers. "We need to get away from thinking about majors and start to think about the fundamental knowledge gained with the degree and does that knowledge transcend multiple degree fields. Think about the fundamental knowledge we want our H-1B candidates to have as a minimum requirement—quantitative analysis instead of simply asking for an engineering degree, for example."

Enforcement Is Up

The need to comply with regulations has also become more acute in the Trump era. "We're seeing an increase in labor condition application audits from the Department of Labor's Wage and Hour division and more USCIS Fraud Detection and National Security worksite inspections," Peters said.

Employers can prepare for these actions by "knowing who your H-1B workers are," Greenfield said. "Make sure you or your immigration counsel is tracking their visa expiration dates; know what you've said in their labor condition applications. One of your obligations as an H-1B employer is to keep documentation and make it publicly available regarding wages and working conditions you're offering to H-1B workers."

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