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The Trump Administration's Efforts to Rein in H-1B Visas - What You Need to Know

May 11, 2018

The H-1B visa category has been modified many times over the past 65 years. H-1B visas facilitate the entry of foreign national professionals, while also providing safeguards that maintain the integrity of the U.S. labor market. The H-1B is considered to be a major workhorse among non-immigrant visa options - it allows U.S. companies to avail themselves of global talent to ensure that they and our country remain competitive in the world market.

Changes to the program, which was first introduced by the Immigration and Nationality Act of 1952, have occurred frequently, and balance the needs of big business, permanent residence country quota backlogs, and the views of those who perceive that the H-1B program is abused by U.S. employers at the expense of qualified U.S. workers. The program may be characterized as ever-changing - over decades it has morphed into something that its drafters could not have envisioned for the 21st century.

A foreign national utilizing the H-1B program for employment in the U.S. was initially defined by the Immigration and Nationality Act of 1952 as being "an alien having a residence in a foreign country which he has no intention of abandoning... who is of distinguished merit and ability and who is coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability." Decades later, the Immigration Act of 1990 made the H-1B a "dual intent" visa, permitting foreign nationals to work in the U.S. for a total period of 6 years with the longer-term intent of remaining in the U.S. on a more permanent basis.

In this century, the American Competitiveness in the 21st Century Act of 2000 (AC21) increased the annual cap for H-1B visas to 195,000 in fiscal years 2001, 2002 and 2003. Beginning on October 1, 2003, the annual H-1B cap dropped to 65,000. This number for new H-1B visa petition filings has not increased in over 15 years. Additionally, in 2002 the 21st Century Department of Justice Appropriations Authorization Act (H.R. 2215) allowed for a "7th year extension of stay," which permits H-1B visa holders to extend their stay past the 6-year maximum, allowable if a labor certification had been pending for a minimum of 365 days. Flexibility was also given to H-1B visa holders who were legally "waiting on the line" and scheduled to receive U.S. permanent residence, but who were prevented due to per-country quota backlogs. Such extension requests would be granted indefinitely until permanent residence is granted.

Many prospective H-1B visa holders enter the U.S. labor market after graduating from U.S. colleges and universities. Once educated in the United States, foreign students are permitted to remain and work for a period of optional practical training (OPT) for 12 months. In 2008, then Secretary of Homeland Security Michael Chertoff extended OPT for foreign students majoring in STEM (science, technology, engineering and math) fields for an additional 17 months after completion of the initial 12-month period. Recently, USCIS issued further restrictions on the OPT practical training requirements to ensure that OPT STEM students cannot be placed at third-party sites.

On April 4th, 2018, L. Francis Cissna, Director of Immigration Policy for the U.S. Department of Homeland Security (DHS), penned a letter addressed to Senator Charles Grassley, Chairman of the Senate Judiciary Committee, addressing how DHS will be factoring in the Trump Administration's "Buy American and Hire American" executive order issued in April 2017. Cissna's letter assured Chairman Grassley that the agency is focused on "strengthening" the integrity of the H-1B program and that employers, for instance, will need to provide detailed itineraries if H-1B workers will work at more than one location. Further, extensive documentation evidencing a legitimate employer/employee relationship must be maintained for the entire length of time requested in the H-1B petition. These new documentation requirements are quite extensive and may be burdensome and difficult for some employers to meet.

In addition to increasing the scrutiny and level of H-1B site visits, Cissna's letter states that USCIS will expand its administrative H-1B site visits to also include L-1B petitions, and will remove H-4 dependent spouses from the class of foreign nationals eligible for employment. This class of individuals - the spouses of H-1B workers who are in the U.S. waiting in long queues for permanent residence - will be deprived of the ability to work for perhaps decades while the principal H-1B worker waits years for his or her permanent residence.

The Cissna letter also discloses that USCIS is currently working on two proposed H-1B program regulations. The first regulation would establish an electronic registration program to more efficiently manage the intake and lottery process for the annual filing of H-1B petitions. The second proposed regulation would revise the definition of "specialty occupation" to increase focus on obtaining the "best and brightest" foreign nationals for the H-1B program, as well as revise the employment and employer-employee relationship to better protect U.S. workers and wages. USCIS is already implementing regulations in this regard without formal authorization as seen through numerous requests for evidence issued for the IT career fields and other occupations relating to prevailing wage levels and duties of the prospective H-1B foreign national. DHS has proposed additional regulations designed to ensure that employers pay appropriate wages to H-1B visa holders.

These changes are evidence that this administration seeks to limit and rein in the H-1B program and its use by U.S. employers. The future of the H-1B program may not be as bright as many employers and skilled foreigners had hoped. But with "Buy American, Hire American" at the top of the administration's agenda, despite the lowest unemployment rate in decades, we breathlessly await new rules that are shaping the future (or demise) of the H-1B visa program.

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