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The agency rescinded a 2000 memorandum that said that the role of a computer programmer would usually qualify as a specialty occupation and therefore be eligible for an H-1b visa.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