Be Prepared for Likely H-1B Visa Changes

This year’s H-1B season has many of us nervously watching President Trump’s moves. Just last week the President signed executive orders to build his promised wall at the border with Mexico and to find and deport unauthorized immigrants. A third executive order last Friday barring refugees and travelers from seven countries deemed predominantly Muslim has heightened the anxiety among foreign nationals and prompted protests. His pen has not yet reached the H-1B program, but that could happen in his first 100 days.

Congress may help him.

Buoyed by the anti-immigrant sentiment that helped Trump win the presidency, U.S. Representative Darrell Issa (Republican, California) reintroduced the “Protect and Grow American Jobs Act” (HR 170), originally introduced last July. The Act, which is co-sponsored by Representative Scott Peters (Democrat, California), aims to revise the definition of “an exempt H-1B nonimmigrant” in the Immigration and Nationality Act to constrict a loop hole that favors large firms with many H-1B employees.

The new definition would eliminate the master’s degree qualification and would raise the minimum salary threshold to $100,000 from $60,000. The proposed Act would also require inflation adjustments to the threshold every third year.

The changes support the drive to ensure firms do not seek lower cost foreign national workers instead of hiring Americans. The Immigration and Nationality Act stipulates that firms seek American employees first, but it is unclear how often the Department of Labor (DOL) investigates those efforts.

If the proposed Act goes through, it could spell disaster for H-1B dependent firms (firms whose work force is 15 percent or more H-1B employees, with different guidelines for small firms).

Supporters of the Act are hoping that it will prompt companies to hire more Americans and fewer foreign nationals. But many of the firms that are H-1B dependent got that way because they couldn’t find enough qualified American employees for their workforce in the first place.

Those firms will either have to ante up to the $100,000 job wage level or find American workers. If neither is possible, they may have to close their U.S. operations. Ironically, that would eliminate the U.S. jobs they supply now, instead of creating more.

I have experienced the heightened interest in the prevailing wage issue first hand. Recently I represented the President of a client company through a DOL audit. I’m happy to say I had prepared the client well. During the audit, the DOL was scrutinizing the H-1B visa jobs’ wage levels, looking at the prevailing wage in the relevant market context.

All of this activity in Washington right now does not change the fact that you may need to petition H-1B visas for your workers.  If that is the case, here are six guidelines to increase your chances for success:

1. Start early. There are several steps that precede your H-1B petition readiness and they take time. For example, you need to have registered your company with the DOL and you need to have a Labor Condition Application (LCA) in place before you can petition for an H-1B visa. These steps require interaction with the DOL, and they get backed up as the filing deadline approaches.
2. Petition H-1B visas for Level 2 salary jobs or higher, not entry level. From my DOL experience and the legislation under consideration, lower wage level petitions will either garner unwanted scrutiny or may be denied by U.S. Citizenship and Immigration Services (USCIS) entirely.
3. Get your documents in order. A strong company profile inspiring confidence that the company is in sound financial condition is the first hurdle the DOL and USCIS will look to clear. Among the key documents you need are a Dun & Bradstreet listing, proof of office space and at least one filed tax return.
4. Substantiate specialty occupations. You will need to show that the position requires at least a bachelor’s degree. Jobs that fall into a STEM category – Science, Technology, Engineering, Math – are easier to substantiate than non-STEM positions. Insufficient proof here will disqualify your petition from consideration.
5. Be prepared to show the demand for the employee’s services and the ability to pay the employee for three years. H-1B visas last for three years so USCIS looks for proof that the demand and financial resources exist for the duration of the visa.Failure to document both the need and the financial resources can result in a one-year H-1B visa, necessitating a second application, or denial. This hurdle can be tough on IT consultants and others that do contract work, but it is important.
6. Comply with the regulations every day. Unannounced compliance visits happen. The DOL or USCIS could knock on your door any day, wanting to see the H-1B employee at their desk, the LCA posted in plain view and evidence that you are paying the wage that you promised.

As in recent years, I anticipate that the H-1B lottery participation will be overwhelming, closing out the lottery within a week of the April 1 deadline. I work with clients to be ready to file by March 31.

If you plan to file for an H-1B visa this year, please contact me by February 16 so that I can give your petition the best possible shot at winning the lottery and obtaining a visa.

The author, Jacqueline Lentini McCullough, is an immigration attorney based in Illinois with extensive experience in H-1B visas. Ms. Lentini can be reached at lentinivisas.com, +1.630.262.1435, or jacki@lentinivisas.com.