Tag: employment visa

Trump Administration Shakes Up the H-1b System

Over the past several weeks, the nation has seen some revisions to the interpretation of our country’s immigration laws related to the system that allows foreign nationals to work in the United States.

Generally, foreign nationals are not allowed to work in the U.S. without authorization.  The name of the visa that most foreigners use to work is the H-1b visa.

Federal law allows for the issuance of 65,000 H-1b visas to foreign nationals with a college degree in a “specialty occupation.”  Another 20,000 such H-1bs are set aside for foreign workers with a master’s degree from a U.S. institution of higher learning.

The H-1b system is based on federal law, as passed by Congress many years ago.

The President’s role in the H-1b system is to enforce laws passed by Congress, including the H-1b system.  The new Trump administration has made several recent and important changes to the H-1b program.

These changes will affect immigrants working in the St. Louis area and throughout the United States.

Premium Processing Suspended

The first change occurred in late March of 2017, shortly before the filing deadline for the next fiscal year of H-1b visas.  The Department of Homeland Security issued an announcement on the USCIS website that premium processing for H-1b visas had been temporarily suspended.

Premium processing allows an employer seeking to hire a foreign worker to obtain an answer in a few short weeks as opposed to waiting for five or six months.  Under the Trump administration, foreign workers and the U.S. companies that wish to hire them will have to wait much longer for an answer.

Mr. Trump made it clear during the presidential campaign that his number one priority was helping American workers and it appears that this change is designed to make it harder and more cumbersome to hire foreign nationals.

Computer Programmer Job May No Longer Qualify

On March 31, 2017, the day before next year’s H-1b applications were due, USCIS changed the rules regarding the availability of H-1b visas for the position of “computer programmer.”

The agency rescinded a 2000 memorandum that said that the role of a computer programmer would usually qualify as a specialty occupation and therefore be eligible for an H-1b visa.

USCIS issued a new memorandum that makes clear that foreign nationals employed as computer programmers, especially those in entry-level positions, may no longer be treated as working in a “specialty occupation.”  Because many computer programmers work without a specific college degree in computer programming, the job may not always be considered a specialty occupation.  Therefore, the H-1b visa may not be available for these foreign workers.

From the memo:

Based on the current version of the [Occupational Outlook] Handbook, the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation. Thus, a petitioner may not rely solely on the Handbook to meet its burden when seeking to sponsor a beneficiary for a computer programmer position. Instead, a petitioner must provide other evidence to establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii) that also meets one of the criteria at 8 CFR 214.2(h)(4)(iii). Section 214(i)(1) of the INA; see also Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).

This is an important change.

Any employer looking to hire a foreign national is required to pay the prevailing wage.  The prevailing wage is calculated by looking at the average wages paid in a particular geographic area for that occupation type.

Computer programmers make significantly less than software developers.  The thought is that employers have been saving money and undercutting the American worker by paying foreign nationals as computer programmers instead of as software developers.

This change will require companies, especially foreign staffing companies, to pay a lot more to their employees or risk having their H-1b applications denied.

It is interesting, to say the least, that the Trump administration decided to make this announcement on the day that immigration lawyers and employers were shipping thousands of H-1b applications to the USCIS service centers for processing.  It appears that this was designed to harm employers who were relying on their ability to hire foreign nationals in this role.

H-1B Abuse Enforcement Announced

On April 3, 2017, USCIS issued a press release to announce “multiple measures to further deter and detect H1B visa fraud and abuse.”

The release is entitled Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse.

USCIS has adopted new criteria to determine which H1B employers and worksites are to be targeted for site visits. An updated website and email address have been implemented to purportedly make it easier to notify USCIS that H-1b abuse has occurred.

Site Visits and Enforcement

Since 2009, USCIS has routinely conducted random site visits of H-1b employers and work sites. Starting with the issuance of the press release, USCIS will ramp up the number of site visits conducted and The USCIS has been conducting random site visits to the offices of H1B petitioners and work locations since 2009. Effective immediately, however, the USCIS will increase the number of site visits it conducts and “take a more targeted approach when making site visits across the country.”

The memo takes aim at the following situations: employers whose basic information cannot be verified through commercial databases; employers deemed “dependent” on H-1B workers; and, employers such as consulting companies whose employees will work off-site at another organization’s location.

USCIS also announced the use of a new email address (ReportH1BAbuse@uscis.dhs.gov) to allow American workers to report suspected H-1b fraud or abuse.  The agency also published an online reference page that lists other available ways that suspected H1B fraud or abuse may be reported.  The website also lists examples of the types of behavior that may indicate H-1b fraud.  The protections available to U.S. workers are also provided on that site.

On the same day that USCIS issued its press release, Attorney General Jeff Sessions’ Department of Justice sent out a separate release that makes it clear that U.S. employers are not supposed to discriminate against the American worker.

From the release:

The anti-discrimination provision of the Immigration and Nationality Act (INA) generally prohibits employers from discriminating against U.S. workers because of their citizenship or national origin in hiring, firing and recruiting. Employers violate the INA if they have a discriminatory hiring preference that favors H-1B visa holders over U.S. workers.

“The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”

These recent changes suggest that Mr. Trump intends to make it more difficult for foreign nationals to work in the U.S.  As a candidate, Trump consistently portrayed immigrants as outsiders coming to take “our jobs.”  These changes to the law may make it significantly harder for employers to hire and retain foreign nationals.

We will keep you apprised of any additional changes to the law.

How Do I Find an H1b Employer?

How do I find an employer who’s willing to sponsor me for an H1B employment visa?

Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States out of our office here in St. Louis, Missouri. We get this question a lot. We’ve a lot of foreign nationals who are either working or are going to school and about to graduate and they wonder, “How can I find an employer who’s willing to sponsor me for a work visa?” Of course you have to recall that generally foreign nationals are not allowed to work in the United States, but there is a visa called an H1B employment visa that’s available for people that work in specialty occupation. One thing to keep in mind is that not every job is eligible for a work visa. You have to have a degree in most cases or a very high set of specialized knowledge, but generally that’s going to be reflected in a bachelor’s degree or a master’s degree and you are going to have to be in a field that generally requires a degree in that field. So not every job has the eligibility for an H1B visa.

But let’s suppose that you’re working in a field that does qualify for an H1B and you want to find an employer who’s willing to sponsor you. I think the biggest thing to keep in mind is that the H1B process is hard, it’s expensive, and it’s complicated. A lot of employers haven’t been through the process before, so if you are a foreign national and you’re going to need an H1B employment visa, that might be a lot for employers to overcome or to get their mind around all the hoops and hurdles that they have to jump through in order to get you an employment visa. What I like to tell people is that you should look to see where people have sponsored before, and you want to find employers who are willing to sponsor you for an H1B. The way I think that you do that is you find people that have sponsored for H1B visas before. They’ve been through the process. They know the hurdles. They know the headache, and if you’re an outstanding enough candidate, they’re going to be willing to do it for you.

The way that I tell people to find that is a great website called myvisajobs.com, www.myvisajobs.com. If you go to that website you can search by company names, you can search by geographical regions, you can search by job, and you can see who has sponsored people in my field for an employment visa. It’s really a great tool. There is a basic version that’s free, and there’s an expanded version if you subscribe. You can find all the employers in your area who sponsored in your specific field. I think this is really important, it really cuts down on you wasting your time with an employer who may not be willing to sponsor you. Sometimes employers just don’t want to do it. They throw their arms up and they say, “We’re not doing it.” I think you’re really banging your head against the wall if you’re trying to start from scratch with an employer who’s never been through it. It’s not to say that it can’t be done but I just think your chances are going to be much greater.

You might also consider downloading our free book and you can get that. It’s called the “Staying Here Book.” It’s a guide for foreign nationals on how to find a job, and it really provides a lot of the tips and tricks that we like to tell our students and people who are interested in staying in the United States. You can download that for free. If you go to www.stayingherebook.com and you can download that book for free.

Definitely make sure that you’re searching in the right areas, make sure that you’re networking, find out from your friends what employers are sponsoring, find out from other people in your industry. You want to follow them on LinkedIn. You want to connect with them on social media. You want to see who are the movers and shakers in your field, and you want to learn a way to get to know them. You don’t necessarily want to bum-rush them for a job in particular, but instead to ask them what are the trends you’re seeing in the industry, who are the people that hiring, do you think it makes sense for me to reach out to this person or that person. You really want to have a network of advisors who are not people that necessarily are going to hire you, but are willing to give you good advice and to let you know about the field.

If you have any questions about this, about the H1B employment process, or about how to talk to your employer about sponsorship for an H1B, be sure to give us a call at 314-961-8200. You can download that book again at www.stayingherebook.com or you can email us at info@hackinglawpractice.com. We’ll be sure to get back to you. If you liked this video, please click the like button and share it with your friends. Also if you want to get updates as to our YouTube channel or Facebook videos, make sure you subscribe so that when we update with new videos, you’re the first one to know about it. Thanks a lot. Good luck with the job search. Have a great day.

What does USCIS mean when they say that a job must be in a specialty occupation for an H1b visa?

One of the first things that you should know about H1b visas is that not all jobs qualify for H1b employment visas.  
 
In order for an H1b to be available, the job must be a specialty occupation.

What is a specialty occupation?

Specialty occupations require a theoretical and practical application of highly specialized knowledge.   This typically involves a showing that the position requires a bachelor’s degree or higher, that such a degree is common in the industry, that the employer normally requires such a degree, and that the job duties are so specialized that the requirements of the job are usually associated with that degree.  The employee’s background and qualifications must also track the job duties in the offered position.

Visa

The foreign worker must either:

  • (1) hold a U.S. bachelor’s or higher degree as required by the specialty occupation from an accredited institution;
  • (2) possess a foreign degree determined to be an equivalent to a U.S. bachelor’s;
  • (3) have any required license to practice the occupation (like an architect, surveyor or physical therapist); or,
  • (4) have education, specialized training, or progressively responsible experience that is equivalent to completion of a U.S. bachelor’s degree and have recognition of progressively responsible expertise through job promotions within that field.

The U.S. Citizenship & Immigration Service sometimes requests additional evidence that the position sought qualifies for the specialty occupation classification.  These requests for evidence can be long, burdensome and very specific.

The best way to minimize the chances of a request for evidence on the specialty occupation issue is to provide documentation with the initial filing that the job is properly considered a specialty one.  This can involve affidavits, surveys, letters from similar employers and other evidence from industry hiring customs.

If you are wondering if your occupation qualifies as a specialty occupation, feel free to email us at info@hackinglawpractice.com or call us at (314) 961-8200 and we’d be happy to set up a time to discuss. 

EB-1 Petition Approved for Rolla, Missouri Scientist

On July 1, 2015, we filed a petition for an alien worker (I-140), a leading scientist from Rolla, Missouri.  We are happy to report that – with premium processing – the case was approved in seven days and without a dreaded request for evidence.  This is the first step towards obtaining lawful permanent resident status.

This interesting case involves a PhD. who specializes in nanotechnology and metals.  He filed for an EB-1 visa for aliens of extraordinary ability.  This case was a self-petition, which means no employer was involved.

In most employment-based immigration cases, an employer is required to file a PERM application with the Department of Labor before filing the visa petition with USCIS.  But for a rare number of workers, the law allows them to self-petition without an employer and without going through the expensive and time-consuming PERM process.  To qualify for the exception, the alien has to satisfy at least three out of ten listed criteria and the standard is very stringent.

Our office is frequently contacted by scientists, researchers, educators and others who believe that they may qualified for this extraordinary path to lawful permanent resident status.  We turn down the vast majority of cases after having a heart-to-heart with the potential applicant.  The standard is very, very high and most people just don’t have the credentials necessary to prevail.

visa

One significant factor in determining whether these cases get approved is who will write letters in support of the person seeking to obtain the EB-1 visa.  If the potential applicant only has letter writers from a close circle of friends or from people that they studied or worked with, the application is unlikely to succeed.  To prevail, the person really needs world-class individuals in the field to write strong letters of support.

This is why we agreed to take this case.  The client had an impressive publication, teaching and presenting history.  But more importantly, the people that he had writing letters for him were the tops in the field and were both academics and industrial leaders.  We filed what we thought was a strong application and apparently USCIS agreed.

Now our client will need to file for adjustment of status.  We will get working on that shortly.

If you have questions about employment-based visas or would like for us to evaluate your credentials to see if you have a good chance of success, please contact us at (314) 961-8200.