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My annual ritual. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having increasingly more difficult conversations with their clients who wish to hire foreign nationals into what are called “speciality occupation” positions. Last year, after President Trump signed an Executive Order on April 18, 2017 entitled “Buy American, Hire American” (“BAHA”), the conversations became very different from previous years. This year it seems even worse. Let me explain.
The purported purpose of the “Hire American” portion of BAHA is to create higher wages and employment rates for U.S. workers, and to protect their economic interests by rigorously enforcing and administering the laws governing entry of foreign workers into the United States. President Trump specifically highlighted the H-1B visa program, directing the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled and highest-paid foreign workers.
As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field.
Notwithstanding what you read in President Trump’s “fake” tweets, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First and foremost, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
An executive order cannot modify existing statutes or regulations. However, BAHA does clearly direct the above-referenced agencies who administer immigration programs to approach their administration obligations from an enforcement standpoint rather than as providing a service to those parties that they regulate. Consequently, a number of agency memoranda have either been issued or repealed since BAHA was signed by the President.
In 2018, practitioners saw how BAHA would play out in real time. Quite simply, as a result of BAHA, employers, their current / prospective employees and their attorneys are being besieged by requests for evidence (“RFE’s”) from USCIS. According to The Wall Street Journal, “the administration is more closely scrutinizing applications for the high-skilled visa program known as H-1B, sending back more than one in four applications between January and August [of 2017] via “requests for further evidence,” according to data from [USCIS], which administers the program. A year earlier, fewer than one in five were sent back.”
In terms of my own practice, and anecdotally what I am hearing from virtually every colleague of mine that practices in this area, these RFE’s are making requests that we’ve never seen before, including questioning the prevailing wage classification and level selected on the underlying LCA associated with the H-1B petition, and also questioning whether the position requires at least a Bachelor’s degree in a specific educational specialty.
Specifically, USCIS is taking the position that a Level 1 wage, as a general matter, cannot support a claim that the offered position is in a “specialty occupation.” Alternatively, the RFE’s often claim that if a position is sufficiently complex to be considered a “specialty occupation”, then it cannot have a Level 1 wage associated with it. Some RFE’s make both arguments and then ask the employer-petitioner to essentially prove the impossible.
And, where at first we starting seeing these RFE’s in specific types of case (e.g., software developers, computer systems analysts), we are now seeing them issued in a wider array of occupations, including engineers (e.g., civil, mechanical, industrial, etc.), lawyers, dentists, teachers, physicians, and accountants/auditors.
Mercifully for our clients we have been able to successfully overcome these RFE’s, but now without a lot of extra time and effort put into the case that, given the existing regulatory framework and case law, seems absolutely unnecessary. These RFE’s have added substantial expense and uncertainty to the H-1B process. The result is that it discourages immigration without making any formal policy change. This needs to change.
Here we go again. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having difficult conversations with their clients who wish to hire foreign nationals into what are called “specialty occupation” positions. But this year, with President Trump in office, will the conversations be different than in previous years?
As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field. Typically, a foreign worker with an H-1B visa is admitted to the United States for a period of up to three years, and his or her visa may be extended for a maximum of six years. (There are some exceptions to this.)
Notwithstanding what you read in the news, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. (More on this below.) Employers must also provide existing workers with notice of their intention to hire an H-1B worker.
Since the H-1B category was created in 1990, Congress has limited the number of H-1B visas made available during each government fiscal year. The current annual cap is 65,000 visas, with 20,000 additional visas for foreign professionals who have graduated with a Master’s or Doctoral degree from a U.S. university. As I have indicated in previous articles, in recent years, the H-1B cap has been reached only a few days after the visas were made available.
Over the past year or so, now President Trump has spoken a lot about our immigration system, his theme being that we need to protect American workers. Although a lot of attention was placed on “building a wall” on our Southern Border, and making “Mexico pay for it”, a good deal was also said about overhauling other aspects of our immigration system, including the H-1B program.
During his campaign for president, then candidate Trump said the H-1B visa program was a “cheap labor program” that takes jobs from Americans workers.
Megyn Kelly asked about highly-skilled immigration. The H-1B program is neither high-skilled nor immigration: these are temporary foreign workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay. I remain totally committed to eliminating rampant, widespread H-1B abuse and ending outrageous practices such as those that occurred at Disney in Florida when Americans were forced to train their foreign replacements. I will end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions.”
“Cheap labor program”? Reality or myth?
I’ve written so much about this in the past couple of years my head is about to spin. There is a plethora (yes, a plethora) of evidence that foreign workers fill a critical need in our labor market, particularly in the STEM fields (i.e., Science, Technology, Engineering and Math). Foreign workers, including skilled foreign workers, help create new jobs and new opportunities for economic expansion.
So how do H-1B workers impact wages? Well, for starters, here are a few things to consider. As I noted above, prior to filing an H-1B petition with USCIS on behalf of a foreign worker, the employer must first file and have certified an LCA with the DOL. The LCA contains several attestations that the employer is required by law to make before the DOL may certify the LCA.
These attestations include, among others, that the employer will pay the required wage rate to the H-1B workers employed pursuant to the LCA. The required wage rate must be the greater of (1) the actual wage level paid by the employer to all other individuals at the job site “with similar experience and qualifications for the specific employment in question,” or (2) the prevailing wage level for the occupation in the area of intended employment. Cheap labor program? I think not.
Another attestation the employer must make is that it will offer the same benefits package on the same basis to similarly employed U.S. workers and H-1B workers. Eligibility and participation criteria must be the same for all workers. H-1B workers cannot be denied benefits because they are “temporary employees.” The employer must also attest that employment of H-1B workers will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
A violation of any one or more of these attestation can result in serious penalties to the employer, and ultimately in debarment from participating in the H-1B program.
So, what is the empirical evidence as to wages? According to one study, H-1B-driven increases in STEM workers were associated with a significant increase in wages for college-educated, U.S.-born workers in 219 U.S. cities. In fact, a one percentage point increase in foreign STEM workers’ share of a city’s total employment was associated with increases in wages of 7 to 8 percentage points paid to both STEM and non-STEM college-educated natives, while non-college educated workers saw an increase of 3 to 4 percentage points.
What else you ask? According to another study, from 2009 to 2011, wage growth for U.S.-born workers with at least a bachelor’s degree was nominal, but wage growth for workers in occupations with large numbers of H-1B petitions was substantially higher.
There is other data as well. And not only do H-1B workers positively impact wages, they positively impact employment rates as well.
Bottom line, there are too many myths (dare I say “fake news”) perpetuated about the H-1B visa category, and not enough focus on the important contributions H-1B workers make to the U.S. economy.
So, a little more than a year has passed since I wrote about the 2015 – 2016 H-1B filing season being upon us, and here we are again. April 1 has now come and gone, a new H-1B filing season was upon us, because on April 7, 2015, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had reached the congressionally mandated H-1B cap for Fiscal Year 2016. So the H-1B filing season, after only seven (7) days, is over for employers who are not eligible to file cap-exempt petitions. What am I talking about?
A little reminder about the H-1B nonimmigrant worker program. An H-1B nonimmigrant visa (or status) is a temporary visa (or, as noted, a status) that may be granted to a foreign national who will perform services in a “specialty occupation.” A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation in the United States. Representative examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
Since 1990 (which was the start of the H-1B program), Congress has placed a statutory limit on the number of H-1B nonimmigrant visas made available during each government fiscal year (unless an exemption applies to a petitioning employer). The current statutory cap is 65,000 visas per year, with an additional 20,000 visas for foreign national professionals who have graduated with a Masters or higher degree from a United States college or university. In recent years, the statutory limit has been reached within days of April 1, which is the first day that H-1B visas are made available for the fiscal year that starts on October 1.
So what does U.S. Citizenship and Immigration Services (“USCIS”) do when there are more employers filing petitions than there are H-1B visas available? They employ a lottery to choose whose petition will be adjudicated and whose will be rejected. Imagine telling your client, after they’ve paid your fees to get their case prepared and filed, the USCIS may not select their case to be adjudicated!
That’s right, due to incredibly high demand, USCIS uses a random selection process for all cap-subject petitions received within the first five business days available for filing H-1B petitions in a given fiscal year. (It’s a little more complicated than that with the inclusion of the U.S. Master’s or higher degree exemption limit being factored into the mix, but the point remains the same.)
Which of course begs the question whether the cap makes sense. According to USCIS, in the last ten years, six times the cap has been reached in less than ninety days. In four of those years, the cap was reached in six days or less. This year it was seven (7) days.
I’ve heard (probably) all of the arguments as to why we need the cap (e.g., to protect U.S. workers, wages, etc.). In my opinion, the current regulations implementing the H-1B worker program do that just fine. The simple fact is, and the evidence and literature amply supports the proposition, that the H-1B worker program impacts our economy and employment opportunities of U.S. born workers in a very positive manner.
For example, between 1990 and 2010, the increase in STEM workers in the United States under the H-1B program (i.e., those working in the science, technology, engineering or math fields) were associated with a significant increase in wages for college-educated U.S. born workers in 219 cities in the United States. In addition, H-1B-driven increases in STEM workers in a city were associated with an increase in wages of 7 to 8 percentage points paid to both STEM and non-STEM college educated U.S. workers, while non-college educated workers saw an increase of 3 to 4 percentage points.
What about arguments that the H-1B worker program negatively affects employment rates? Bologna. (I haven’t seen, let alone written, that word in 30 years!) The simple fact is that H-1B workers complement U.S. workers, fill employment gaps in many STEM fields, and expand job opportunities for everyone.
The evidence shows that unemployment rates are low for occupations that use large numbers of H-1B visas. For example, many STEM occupations have very low unemployment, compared to, according to the Bureau of Labor Statistics, the overall national unemployment rate. This means that the demand for labor that exceeds supply.
Finally, what about those that argue that the benefits of the H-1B program are limited to those involved in technology fields? Some even argue that H-1B visas are all taken by Silicon Valley companies. Some even say Microsoft and Google take them all by themselves? Wrong! According to data published by the Brookings Institution, in the 2010 – 2011 fiscal year, there were 106 metropolitan statistical areas across the United States that had at least 250 requests for H-1B workers. And while there are admittedly a lot of H-1B workers that are filling STEM occupations, there is also a significant amount of demand for H-1B workers in healthcare, business, finance, and life science fields.
There are exemptions to the H-1B cap that some employers are eligible for (e.g., institutions of higher education, a related or affiliated non-profit entity, a nonprofit research organization, or a governmental research organization), and it’s a pleasure to represent entities that have an exemption available to them. But the simple fact is, the cap should be raised, significantly, or even eliminated. The evidence is clear that the H-1B visa program enhances our economy in so many important ways.
 U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2005; see also U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2006 – 2014.
 See, e.g., Nicole Kreisberg, “H-1B Visas: No Impact on Wages” (Great Barrington, MA: American Institute for Economic Research, 2014); Giovanni Peri, Kevin Y. Shih, Chad Sparber, and Angie Marek Zeitlin, Closing Economic Windows: How H-1B Visa Denials Cost U.S.-Born Tech Workers Jobs and Wages During the Great Recession (New York, NY: Partnership for a New American Economy, 2014); Giovanni Peri, Kevin Y. Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Unemployment in U.S. Cities,” NBER Working Paper No. 20093 (Cambridge, MA: National Bureau of Economic Research, 2014).
 Giovanni Peri, Kevin Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Employment in U.S. Cities” (Cambridge, MA: The National Bureau of Economic Research, 2014).
 Information Technology Industry Council, the Partnership for a New American Economy, and the U.S. Chamber of Commerce, Help Wanted: The Role of Foreign Workers in the Innovation Economy (Washington, DC: December 2012), pp. 2-3.
 Neil G. Ruiz, Jill H. Wilson, and Shyamali Choudhury, “The Search for Skills: Demand for H-1B Immigrant Workers in U.S. Metropolitan Areas” (Washington, DC: The Brookings Institution, 2012), p. 1.
So of course the centerpiece of President Obama’s administrative “fix” of our “broken immigration system” are his initiatives to grant “deferred action” to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here. But the President did much more when he announced on November 20, 2014 several other initiatives which affect lawful immigration, and which are supposed to assist our country’s high-skilled businesses and workers. Here’s a brief overview.
1. Immigrant Visa Issuance. The President wants to ensure that all available immigrant visas (basically, “Green Cards”) are used each year, and the President has created a new interagency task force to modernize and streamline the immigrant visa system. Because of delays in processing applications for immigrant visas, some visas going unused each fiscal year. Given the unbelievable backlogs in some of the family- and employment-based immigrant visa categories, this is clearly unacceptable. The President’s action is an attempt to ensure that all immigrant visas available for issuance in a year are used.
2. Optional Practical Training. The President announced that he would expand the duration of any “optional practical training” (commonly known as “OPT”) engaged in by foreign national students who studied science, technology, engineering, and mathematics (commonly known as “STEM” fields) at institutions of higher education in the United States on F-1 nonimmigrant student visas. The President also proposed to expand the degree programs eligible for OPT.
Presently, foreign national students studying in the United States on F-1 nonimmigrant visas may request 12 months of post degree temporary employment, or OPT, in their field of study. In 2008, regulations were promulgated which permitted students in STEM fields to request an additional 17 months of OPT, for a total of 29 months of OPT. However, only students in STEM fields are eligible for this 17 month extension, and these students can participate in OPT for no more than 29 months.
3. Aliens Whose Admission to the United States is in the National Interest. The President proposes to expand the use of the immigrant visa category which allows aliens with advanced degrees or “exceptional ability” to obtain an immigrant visa without a sponsoring employer if their admission to the United States is in the “national interest.”
4. Inventors, Researchers, and Founders of Start-up Enterprises. The President proposes to use the authority granted to the executive branch in the Immigration and Nationality Act (“INA”) to “parole” foreign nationals into the United States when there is a “significant public benefit” to allow some inventors, researchers, and founders of start-up enterprises to enter and lawfully remain in the United States without a visa.
5. L-1B Specialized Knowledge Aliens. For companies who wish to hire foreign nationals as “intra-company transferees” using the L-1B nonimmigrant visa program, the President’s proposal seeks to clarify and standardize the meaning of “specialized knowledge” for purposes of the L-1B visa program. The L-1B nonimmigrant visa allows companies to transfer certain employees who are executives or managers, or have “specialized knowledge” of the company or its processes, to the United States from the company’s foreign operations.
6. I-140 Portability under AC21 §106(c). The President seeks to clarify what is meant by the “same or similar job” for purposes of INA §204(j), which provides that employment-based immigrant visa petitions remain valid when the foreign national employee changes jobs or employers so long as the new job is in the “same or similar occupational classification” as the job for which the original petition was filed.
7. Labor Certification (“PERM”) Modernization. The President seeks to review the Labor Certification program (commonly called “PERM”), whereby the U.S. Department of Labor (“USDOL”) certifies that the issuance of an employment-based immigrant visa will not displace U.S. workers, or adversely affect the wages or working conditions of similarly employed U.S. workers. More particularly, the President wants to identify methods for aligning domestic worker recruitment requirements under the PERM regulations with demonstrated occupational shortages and surpluses.
8. Human Trafficking and Crime Victims. The President announced that the USDOL will certify (a) applications for T nonimmigrant visas for foreign nationals who have been victims of human trafficking, as well as (b) applications for U nonimmigrant visas for eligible victims of extortion, forced labor, and fraud in foreign labor contracting that the USDOL detects in the course of its workplace investigations.
The President announced other initiatives too (which I will write about at a later time). As you can see from the above, not everything the President announced was controversial (even though some feel how he went about it was). It seems clear to me, however, that what he announced was very necessary and very welcome (by most, anyway).
This morning, the Gang of Eight offered their vision of Comprehensive Immigration Reform. Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake introduced the “Border Security, Economic Opportunity, and Immigration Modernization Act,” an 844 page piece of legislation. This is Congress’s starting point for further discussion, debate, no doubt revision, and eventually (hopefully) the signature of President Obama. In a joint statement upon the introduction of the bill, the Senators said:
“Our immigration system is broken and it is time for a national conversation about how to fix it. We believe common-sense immigration reform is vital in order to secure America’s borders, advance our economic growth, and provide fuller access to the American dream. Our bipartisan proposal is a starting point, and will be strengthened by good-faith input and ideas from across the ideological spectrum. We look forward to multiple Senate hearings on this bill, an open committee process with amendments, and a full and fair debate in the Senate.”
I know the topic of immigration and immigration reform invokes deep feelings… both positive and negative, from the general public. People are entitled to their opinions. I have them too. But when I think about these topics, I make myself take off my lawyer hat and try to set aside my political ideology. I try to come at this issue from a very practical point of view. Our immigration system is broken. Is it practical to think that we’re going to deport 11 to 13 million undocumented foreign nationals who are presently in the United States? No. Does it make sense that we educate foreign nationals at some of our best institutions of higher education… and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that allows them to? No. Our immigration system is broken and it is about time that our national leaders, with the input of relevant stakeholders, discuss, debate and implement comprehensive immigration reform.
Very broadly, the Gang of Eight’s bill addresses such important issues such as (a) border security, (b) legalization for individuals in an unlawful status (a so-called “registered provisional immigrant status” where after ten years an individual could apply for lawful permanent residence, i.e., a Green Card, through a merit-based system), (c) elimination of backlogs in the current family- and employment-based immigrant visa categories, (d) the creation of a startup visa for foreign entrepreneurs who seek to emigrate to the United States to startup their own companies, (e) merit-based visas, where points are awarded to individuals based on their education, employment, length of residence in the U.S. and other considerations, (f) enhanced employment verification rules (i.e., mandatory participation in the E-Verify program, photo-matching, etc.), (g) H-1B nonimmigrant visa reform (e.g., raising the base cap of 65,000 to 110,000, with the potential for the cap to go as high as 180,000, and amending the current 20,000 exemption for U.S. advanced degree holders to be a 25,000 exemption for advanced degree graduates in science, technology, engineering, and mathematics from U.S. schools, along with several other changes), (i) visa programs for lower-skilled workers, and (j) a program to allow current undocumented farm workers to obtain legal status.
It will take some time for this proposed legislation to be reviewed and digested. Then the debate will begin. The debate will be spirited. Hopefully it will be constructive and not divisive.
Is this proposed legislation perfect? I’ve obviously only skimmed it at this point, but the answer is probably no. Is it a good start? It sure is. More than anything, though, “it’s about time.”
Late yesterday afternoon, at 3:58 PM, not five full days after the H-1B filing season began, U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B cap had been reached. They will now use a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. “Specialty occupations” include architects, engineers, scientists, biophysicists, biochemists, among others in the science and technology fields.
That’s right, a “lottery” system.
USCIS announced that it had received sufficient H-1B nonimmigrant worker petitions to reach the government’s fiscal year 2014 cap. Each fiscal year, there are 65,000 H-1B nonimmigrant visas made available to foreign workers who are petitioned by U.S. employers, and an additional 20,000 for foreign workers who are exempt from the cap under the advanced degree exemption. Shortly after USCIS’s announcement, I reached out to my clients who we had filed new H-1B petitions for with USCIS and told them, among other things, “keep your fingers crossed.” It’s not often that a lawyer counsels his or her client to keep their fingers crossed, but that’s exactly what I did.
The H-1B cap has not been reached this early since 2008 (just before the economy tanked), when 168,000 H-1B petitions were received by USCIS within the first five days of being eligible to file petitions for that fiscal year. This is yet another clear sign that we need comprehensive immigration reform, and soon.
Imagine yourself as a business owner, and you’ve identified a foreign national this past winter whose unique skills would greatly benefit your company. The first thing I would tell you is that you have to wait to file your petition with USCIS until April 1 (not when we had that first discussion), for an October 1 start date (yes, six months later). I’d also have to tell you that not only would you have to jump through a bunch of hurdles to get everything done in time for the April 1 filing date, but that I could not promise you that USCIS would even accept your petition. How does anyone run a business with that much uncertainty (or delay for that matter)? And yet that’s the very system that we work within.
Rumor has it that the “Gang of Eight” in the U.S. Senate are going to propose comprehensive legislation for immigration reform this coming week. My fingers are crossed.