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Spring 2017 H-1B Visa Update

Each spring, the H-1B visa “lottery” causes the H-1B visa to become a hot topic among employers, F-1 students on Optional Practical Training, and foreign-born professionals seeking to work in the United States. This year, which is the first H-1B season under the Trump administration, there appears to be higher than usual number of developments and announcements regarding the H-1B visa program. In this update, we will summarize the latest H-1B news and discuss its potential impact on current and prospective H-1B employers and employees. 

  • First, on April 7, 2017, the United States Citizenship and Immigration Services (“USCIS”) announced that it reached the 65,000 visa “cap” on H-1B specialty occupation visas for fiscal year 2018. USCIS also announced that it reached the additional 20,000 visa “master’s cap” for specialty occupation workers who earned advanced degrees in the United States. USCIS received 199,999 H-1B visa petitions (regular and master’s cap) between April 3, 2017 and April 7, 2017, which is a decrease from the 236,000 H-1B petitions USCIS received in 2016. This is the fifth year in a row that the H-1B visa cap was reached within five days.
  • USCIS and other government enforcement agencies announced higher levels of scrutiny on H-1B visa compliance. On April 3, 2017, USCIS stated that it would take further steps to detect and prevent fraud and abuse in the H-1B visa program. Specifically, USCIS stated that it would carry out “targeted site visits” to H-1B employers’ worksites, especially employers where USCIS is unable validate the employer’s basic business information through commercially available information, employers who are “H-1B dependent,” and employers petitioning for H-1B workers who will work off-site or at other companies. Also on April 3, 2017, the U.S. Department of Justice (“DOJ”) issued a statement warning U.S. employers filing H-1B petitions not to discriminate against U.S. workers, and on April 4, 2017, the U.S. Department of Labor (“DOL”) published a notice stating its intent to cooperate with other agencies to investigate and prosecute H-1B violations.
  • On April 18, 2017, President Donald J. Trump signed a new Executive Order titled “Buy American and Hire American” in which the President announced, in part, that he would direct U.S. government agencies including Department of State (“DOS”), the Department of Homeland Security (“DHS”), DOL, and DOJ to review the laws currently in place regarding the H-1B visa program and to propose new rules and suggest changes to protect U.S. workers by preventing H-1B fraud and abuse, and to prioritize the most skilled and highest paid positions for the H-1B program. However, the Executive Order does not contain a specific timeline or identify specific changes to the H-1B visa program.
  • On March 31, 2017, USCIS published a Policy Memorandum rescinding a 17 year-old guidance memorandum for USCIS adjudicators evaluating computer-related H-1B petitions at the Nebraska Service Center. The new Policy Memorandum states that USCIS should not “generally consider the position of [computer] programmer to qualify as a specialty occupation.” This means that employers cannot rely solely on the fact that a position involves computer programming to demonstrate that the position qualifies as an H-1B specialty occupation (a job requiring a minimum of a U.S. bachelor’s or higher degree in the specific specialty, or its equivalent). Employers should exercise caution when preparing H-1B petitions for computer-related H-1B positions to ensure that the position substantively qualifies as a “specialty occupation” under the applicable H-1B regulations.
  • USCIS announced that effective April 3, 2017, it will temporarily suspend its Premium Processing Service for H-1B petitions.  Premium Processing is an optional service for certain employment-based petitions and applications in which USCIS guarantees an expedited (15 calendar days) processing time for an additional fee. USCIS has stated that the suspension of Premium Processing “may last up to 6 months.” At present, the suspension of Premium Processing is only applicable to H-1B petitions, meaning that other petitions normally eligible for Premium Processing may continue to utilize the service.

Publicly, the Trump administration appears to be taking a critical view of the H-1B program, but as of now has revealed few specific steps or reforms that will result in substantive changes to the program. Only time will tell whether the administration will pursue substantial reforms to the H-1B program. It is also worth noting that many potential changes to the H-1B program will not happen overnight as they will generally require Congress to pass new legislation or require “notice and comment” rule making for new regulations.  For the time being, as usual, employers and potential H-1B beneficiaries will have to bear the annual waiting period as the H-1B petitions selected in the lottery are issued receipt notices and adjudicated by USCIS. However, unlike prior years, this year’s wait may be more nerve wracking for some due to the current suspension of Premium Processing for H-1B petitions.

Gordon Landefeld