Changes to H-1B Visa Program Anticipated

By Allen Smith, J.D. Jun 20, 2017

​President Donald Trump wants to eliminate the H-1B visa lottery and come up with a better system to assign a limited number of visas to a huge number of applicants, said Austin Fragomen Jr., an attorney with Fragomen Worldwide in New York City, speaking at the SHRM 2017 Annual Conference & Exposition.

Lynn Shotwell, executive director of the Council for Global Immigration, a SHRM affiliate, noted that there are two visa lotteries—the first allots 20,000 visas for foreign high-skilled individuals with master's degrees, and the second allots 65,000 visas for the remaining individuals seeking H-1B visas, which may include those with master's degrees who didn't get an H-1B in the first lottery and foreigners with undergraduate degrees in science, technology, engineering and math (STEM) fields. The number of H-1B petitions typically far surpasses 85,000. During the filing period this year, for example, 199,000 H-1B petitions were filed for fiscal year 2018.

Steven Brown, senior director—global mobility with Nike in Portland, Ore., noted that the lotteries don't take into account which individuals employers are most eager to sponsor.

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

Trump has suggested that the United States should create a point system to assign H-1B visas instead of a lottery, like Canada does, Fragomen noted. However, he added, the Canadian system does not have employer sponsorship for visas. This results in some individuals receiving the necessary points to immigrate who find themselves underemployed and take on work such as driving taxis, he said.

Trump is limited in what he can change about the H-1B lottery, Fragomen observed. But the president could make it so that higher priority is granted to applicants earning higher salaries and those with advanced degrees.

Congressional Action Possible

Congress wants to do something more significant, Fragomen said. There even is some talk of raising the cap on the number of H-1B visas permitted, but the tradeoff would be more extensive requirements such as mandates that employers cannot displace U.S. citizens in order to hire visa holders. Fees for H-1Bs also might be raised, and wages for individuals with H-1B visas may need to be increased through adjustments to prevailing wage requirements. Anyone who earns less than $100,000 may not be eligible for an H-1B visa under some congressional proposals.

There is "high interest in a bipartisan high-skilled bill," he said, encouraging attendees to weigh in on the proposed bills, particularly since an increase in the cap is not included in all bills calling for H-1B reform.

More Presidential Action Expected

Fragomen also anticipated that Trump would rescind the optional practical training extension for STEM students granted by the Obama administration—which allows for 24 months instead of the 17 months previously available. In addition, the Obama administration authorized H-4 visa holders—the spouses of those with H-1 visas—to work. Fragomen expected this authorization to be rescinded as well.

As for the president's recent revocation of Obama's Deferred Action for Parents of Americans and Lawful Permanent Residents program, the Trump administration has said this act has no relevance to the long-term future of the Deferred Action for Childhood Arrivals (DACA) program.

Fragomen said DACA is one area where the president has articulated a "more modest, humanitarian view." The president has noted more than once that DACA individuals were brought illegally to the United States when they were young through no fault of their own. But these statements are a deviation from the president's campaign pronouncements, and Fragomen said the president may try to leave the future of DACA for Congress to decide. 

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