h 1-b changes under the trump administration

Trump AdministrationH-1B Changes under the

The H-1B Visa: Possible Upcoming Executive Actions

Secretary of Homeland Security• To review all regulations that allow foreign nationals to work in the U.S. and determine which violate

immigration laws or are otherwise not in the national interest and that should be rescinded.

• To publish a semi-annual report on the number of new Employment Authorization Documents

(EADs) issued.

• To publish an annual report detailing the total number of foreign-born persons authorized to work in

the United States, disaggregated by immigration status and the total number of persons in the

United States in each of the employment-based nonimmigrant statuses.

• To make the H-1B allocation process more efficient and ensure that beneficiaries are the “best and

brightest.”

• To conduct regular fraud assessment of all immigration benefits categories.

• To reform optional practical training programs (OPTs) for foreign students to prevent the

disadvantaging of U.S. students in the workforce.

• To incentivize and expand participation by employers in E-Verify.

Secretary of Labor • To investigate the extent of injury to U.S. workers of foreign workers’ employment under

nonimmigrant visa programs (H-1B, L-1, and B-1 categories).

• To publish a report detailing the effect of immigration and of the employment of foreign temporary

workers on wages and employment of U.S. workers since FY 2000.

Draft Executive Order (leaked January 25, 2017)

The H-1B Visa: Current Legislation – The Senate

1. Requires a) federal agencies, contractors, and critical employers to participate in E-Verify; b) all U.S. employers to participate in E-

Verify within one year of enactment of this Act; c) employers using a contract, subcontract, or exchange to obtain labor to certify

that they utilize E-Verify.

2. An employer’s failure to use E-Verify shall be treated as a violation of the INA requirement to verify employment eligibility and

creates a rebuttable presumption that the employer knowingly hired, recruited, or referred an illegal alien.

1. Eliminate the per-country numerical limitation for employment-based immigrants.

2. Increase the per-country numerical limitation for family-sponsored immigrants.

S. 179 Accountability Through Electronic Verification Act (sponsored by Sen. Chuck Grassley (R-IA))

S. 180 – H-1B and L-1 Visa Reform Act of 2017 (sponsored by Sen. Chuck Grassley (R-IA))

1. Establishes an H-1B visa allocation system with first priority reserved for aliens who have earned an advanced degree in a

STEM field from a U.S. institution of higher education.

2. Requires completion of a U.S. degree (or foreign equivalent) as a qualification for “specialty occupation” eligibility, eliminating

experience in a specialty as an equivalent to the completion of such a degree.

3. Creates an H-1B Labor Condition Application fee.

4. The period of authorized admission for an H-1B immigrant is reduced from six to three years, with a three-year extension

available for aliens with extraordinary ability or with advanced degrees.

5. US DOL will conduct annual audits of companies with more than 100 employees who work in the U.S. if more than 15% of those

employees are H-1B non-immigrants.

6. Increase employer penalties, including the penalty of displacing a U.S. worker.

7. Prohibits an employer from hiring for more than one year an L-1 nonimmigrant who will serve in a capacity involving specialized

knowledge and be stationed primarily at the worksite of a third-party employer.

S. 281 – A Bill to Amend the INA(sponsored by Sen. Mike Lee (R-UT))

The H-1B Visa: Current Legislation – The House

HR 170 – The Protect and Grow American Jobs Act (sponsored by Reps. Darrell Issa (R-CA) and Scott Peters (D-CA))

1. Raises the H-1B salary requirement for an H-1B exempt worker from $60k to $100k.

2. Eliminates the master’s degree provision which currently allows the foreign national to be classified as an exempt H-1B worker.

HR 670 -The High-Skilled Integrity and Fairness Act (sponsored by Rep. Zoe Lofgren (D-CA))

1. Increases prevailing wage requirements by replacing the current 4-level wage calculation with a geographically based 3-level

formula which eliminates the lowest wage level and puts upward pressure on the wages in the remaining levels.

2. Prioritizes market-based allocation of H-1B visas as follows:

1. Employers paying 200% of level 3 prevailing wage, then 150% of level 3.

2. Employers paying 200% of level 2 prevailing wage, then 150% of level 2.

3. Employers paying 200% of level 1 prevailing wage, them 150% of level 1.

3. Removes the ‘per country’ cap for employment based immigrant visas.

4. Raises the salary level at which H-1B dependent employers are exempt to a new required wage level of 35% above the

median national annual wage (DOL Office of Employment Statistics) for Computer and Mathematical Occupations (roughly

$132,000).

5. Eliminates the Master’s Degree exemption for dependent employers.

6. Sets aside 20% of the annually allocated H-1B visas for small and start-up employers (50 or fewer employers).

7. Removes visa hurdles for students and other temporary visa holders by building a bridge from F-1 student status to Lawful

Permanent Residence.

The H-1B Visa: Other Possible Legislative Initiatives

LEAST LIKELY MOST LIKELY

Raise the H-1B cap to a new

maximum of 180,000 (SB744)

Revoke employer’s eligibility to

file H-1B petitions if convicted

in US court for employment law

violations.

Reduce authorized H-1B

admissions from six to three

years.

Prohibit employers from

outsourcing, leasing, or placing L-1

workers at third party locations

(SB2266, HR5657)

H-1B dependent employers with >50

employees, and 50% in H-1B status,

not allowed to file new petitions (SB

2266, HR5657)

Increase (H-1, L-1) and/or impose

(LCA) filing fees (CIS, SB2266,

HR5657, SB744)

Increased scrutiny, audits, and

investigations of employers

suspected of abusing visa

categories (SB2266, HR5657,

SB744, Trump’s speeches,

Sessions nomination)

Replace H-1B lottery with system

that gives preference to

employers offering the highest

wages

Establish a merit-based visa

allocation system giving first

priority to aliens with advanced

STEM degrees (SB2266, HR5657,

Trump interview 1/17/17)

Require all H-1B employers to

complete a market attestation process

for all H-1B positions

Create a website and toll free

number for the public to report

LCA violations

POTENTIALLY

THE H-1B VISA: An Overview

• Allows petitioners with bachelor’s

degrees or equivalent up to six years

of continuous authorization for

employment in US firms.

• 65,000 new H-1B visas available

annually + additional 20,000 for foreign

nationals who have obtained a US

master’s degree or higher.

• Holders may have “dual intent” visa,

allowing for the simultaneous pursuit

of an immigrant visa.

THE H-1B VISA REQUIREMENTS

• Petitioning U.S. employer must have an

employer-employee relationship with

the beneficiary: that is, they must have

the “right to control” when, where, and

how the beneficiary performs the job.

• Beneficiary’s job must qualify as a

specialty occupation by meeting one of the

established criteria.

• Beneficiary’s job must be in a specialty

occupation related to their field of study.

• Beneficiary must be paid at least the

actual or prevailing wage for their

occupation, whichever is higher.

• An H-1B visa number must be available at

the time of filing the petition, unless the

petition is exempt from numerical limits.

USCIS will consider the following when making a

determination on right to control:

1. Does the petitioner supervise the beneficiary? Is

supervision off-site or on-site?

2. If off-site, how does the petitioner maintain such

supervision?

3. Does the petitioner have the right to control on a

day-to-day basis?

4. Does the petitioner provide the tools or

instrumentalities needed by the beneficiary?

5. Does the petitioner hire, pay, and have the power

to fire the beneficiary?

6. Does the petitioner evaluate the beneficiary’s

work product?

7. Does the petitioner claim the beneficiary for tax

purposes?

8. Does the petitioner provide the beneficiary with

employee benefits?

9. Does the beneficiary use the petitioner’s

proprietary information?

10.Does the beneficiary produce an end-product that

is directly linked to the petitioner’s business?

11.Does the petitioner control the manner and

means in which the work product is

accomplished?

Source: https://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/understanding-h-1b-requirements

1. Minimum requirement for the position is a

bachelor’s degree or higher degree.

2. The degree requirement is common for the

position or the job is so complex that it can only

be performed by someone with a bachelor’s

degree in a related field.

3. The employer normally requires a degree of its

equivalent for the position.

4. The nature of the specific duties is so specialized

and complex that the knowledge required to

perform the duties is usually associated with the

attainment of a bachelor’s or higher degree.



employer-employee relationship with the

beneficiary: that is, they must have the

“right to control” when, where, and how

the beneficiary performs the job.


specialty occupation by meeting one

of the established criteria.










Specialty Occupation means an occupation

which requires theoretical and practical

application of a body of highly specialized

knowledge and which requires a bachelor’s

degree or higher in a specific specialty or its

equivalent.

To qualify as a specialty occupation, the position

must meet one of the following criteria:

1. A baccalaureate or higher degree or its

equivalent is normally the minimum requirement.

2. The degree requirement is common to the

industry in parallel positions among similar

organizations or the employer may show that the

position is so complex and unique that it can only

be performed by an individual with a degree.

3. The employer normally requires a degree or its

equivalent for the position.

4. The nature of the specific duties are so

specialized and complex that knowledge required

to perform the duties is usually associated with

the attainment of a baccalaureate or higher

degree.





beneficiary: that is, they must have the “right

to control” when, where, and how the

beneficiary performs the job.

• Beneficiary’s job must qualify as a specialty

occupation by meeting one of the established

criteria.



• Beneficiary must be paid at least the actual

or prevailing wage for their occupation,

whichever is higher.










specialty occupation by meeting one of

the established criteria.









The actual wage is the wage rate paid by the

employer to all other individuals with similar

experience and qualifications for the specific

employment in question.

The prevailing wage for the occupational

classification in the area of intended employment

must be determined by the time of the application

filing. Prevailing wages can be determined in multiple

ways:

1. Office of Foreign Labor Certification’s National

Processing Center determination.

2. Independent authoritative sources.

3. A collective bargaining agreement which contains

a wage rate applicable to the occupation.

4. If occupation is not covered by a collective

bargaining agreement, the prevailing wage will

the arithmetic mean of the wages of workers

similarly employed.









specialty occupation by meeting one of

the established criteria.









• The H-1B visa has an annual numerical limit (cap)

of 65,000 each fiscal year (+20,000 cap exempt

visas for beneficiaries with master’s degrees or

higher).

• H-1B workers who are petitioned for a higher

education institution, a nonprofit research

organization, or a government research

organization are also cap exempt.

• Cap numbers are often used up very quickly, so it

is important to plan in advance if you intend to file

for an H-1B that is subject to the annual cap.

• The U.S. government’s fiscal year starts on

October 1. H-1B petitions can be filed up to 6

months before the start date, which is generally

April 1 for an October 1 start date.



DOCUMENT

COLLECTIONRequest foreign national

complete online

questionnaire.

Send document checklist

to foreign national and

client

(if applicable).

2Labor Condition

Application (LCA)

Determine prevailing

wage.

Send LCA to client for

posting.

3

Once posting is

confirmed, submit LCA

to US Department of

Labor (DOL).

H-1B PREP

Prepare H-1B materials.

When LCA is certified,

send H-1B materials to

client for review &

signature.

4

Assemble H-1B materials

and supporting

documents.

APPROVAL &

PACKETSNote of approval for

petition.

Send instruction on

next steps and obtaining

a visa (if applicable).

6

Send approval &

supporting documents to

foreign national.

CASE

INITIATIONCase initiated via

INSZoom portal.

Case assessed by FGI to

determine or confirm

strategy.

Client (petitioning

company) authorizes

cases.

1

TRACKING

Request I-94 and visa

stamp (if applicable).

Track expiry date(s).

7

Contact client

regarding extension.

FILING

Application filed with

USCIS.

Receipt notice received

and loaded to portal.

5

Notification sent to

client and foreign

national.

THE H-1B PROCESSING MAP REQUIREMENTS

THE H-1B VISA: REQUESTS FOR EVIDENCE (RFEs)

Common RFE requests give by USCIS

• Beneficiary qualifications

• Employer-employee relationship

• Maintenance of status

• Needs of the petitioner for the

services of the beneficiary

• Specialty occupation

• Validation Instrument for Business

Enterprises (VIBE)

• RFEs may request an explanation and

documentation of how a degree is related

to the position.

• RFEs may ask for proof that a foreign

degree is equivalent to a U.S. bachelor’s

degree.

• RFEs may request an education

evaluation.

• If a beneficiary works off-site, USCIS may

seek to determine if a valid employer-

employee relationship exists.

• Petitioner may be asked to provide

documentation to prove its control over the

beneficiary’s work assignment.

• Petitioners may be asked to provide

documentation on off-site projects.










Enterprises (VIBE)

• When a petitioner requests a change of

status for a beneficiary, USCIS may

request proof that the beneficiary has

properly maintained their current status.

• Generally, pay statements can satisfy this

requirement.










Enterprises (VIBE)

• With regard to small business petitioners,

USCIS looks warily on foreign workers

with skills not normally associated with the

business.

• USCIS may issue an RFE to provide

documentation that the position satisfies a

legitimate business need.

• The petitioner must demonstrate that the

beneficiary will be employed in the

qualifying position and not in a lesser role.










Enterprises (VIBE)

• Despite the regulations, USCIS officers

have the adjudicating power to determine

whether the beneficiary’s proposed

position meets the standard of a specialty

occupation.

• USCIS may issue an RFE asking for a

more detailed job description, job vacancy

announcements for the position, etc.










Enterprises (VIBE)









Enterprises (VIBE)

• USCIS checks all H-1B petitions in VIBE

to validate information about the

petitioning business or organization.

• If the information in VIBE does not match

what is in the petition, USCIS may issue

an RFE asking for documentation

demonstrating the validity of the business

enterprise.

• Documentation may include Federal Tax

ID Number (FEIN), lease agreement for

office space, tax returns, articles of

incorporation, etc.)


• USCIS is looking back at petitions and issuing Notice of Intent to Revoke (NOIR) years after approval

• RFEs are more detailed and specific

• USCIS utilizing accessibility to previously filed petitions to review new cases

• USCIS also looking at all cases filed by Petitioner when adjudicating individual cases

ADDITIONAL CONSIDERATIONS

THE H-1B VISA: FILING AN LABOR CONDITION

• A Labor Condition Application (LCA) contains

wage and location information about the

proposed position.

• A certified LCA – ETA Form 9035 – is necessary

for H-1B petition approval

• Petitioning employer must make four

attestations:

1. Prevailing wage requirement,

2. Similarity of working conditions between foreign and

U.S. workers,

3. Non-existence of strike or lock-out in the place of

employment, and

4. Notice of the application has been provided to

employees in the petitioner’s organization.

• Completed LCA is submitted through iCert, the

US Department of Labor’s (DOL) online system.

• If certified by the DOL, the LCA remains valid for

up to three years as long as the employer does

not become H-1B dependent or experiences

strikes, lockouts, or work stoppages.

THE H-1B VISA: POST-APPROVAL PROCESS

If the foreign national is outside of the United States:

• He or she will need to make appointment with a US consulate or

embassy.

• He or she will need to appear for an interview before a consular officer.

• The foreign national should review the petition packet prior to the

interview.

• After a successful interview, the approved visa will be affixed in the

foreign national’s passport; he or she should review it carefully to make

sure that all information is correct.

• The foreign national will need to present a valid passport and visa to an

inspecting officer at the US port of entry.

• If everything is in order, the inspecting officer will enter Form I-94

(pictured) arrival information into a database,

https://i94.cbp.dhs.gov/I94, which the foreign national should access

and print for each family member.

https://i94.cbp.dhs.gov/I94

If the foreign national is in the United States, but

approval notice doesn’t have an attached Form I-94

• The US Customs & Border Protection officers replace I-94 records each

time the foreign national departs and re-enters the US.

• The foreign national’s most recent I-94 record from the last entry

controls his or her status.

• To obtain a new Form I-94 record, the foreign national must leave the

US and obtain an H-1B visa at a US embassy or consulate abroad.

• The foreign national will then need to apply for admission at a US port

of entry.

If the foreign national is in the United States, and

approval notice has an attached Form I-94

• The petitioning company must provide the bottom portion of the original

approval notice to the foreign national.

• The bottom portion is the I-94 card that grants the foreign national

status in the US and controls how long she or he may remain in the US.

THE H-1B VISA: POST-APPROVAL PROCESS

EMPLOYMENT OPTIONS FOR F-1s

• Must maintain legal F-1 status.

• Up to 20 hours per week during

the term.

• No permission required and

work does not have to be

related to field of study.

• Employment must be on

campus.

• Must be full time student for at least one

academic year.

• Must be required as part of graduation

requirements or integral part of

curriculum.

• Full or part-time work allowed.

• Full-time CPT for 12 months or more

disqualifies student from OPT.

• Job offer required.

On-Campus Employment Curricular Practical Training (CPT)

Severe Economic Hardship

Employment Authorization

• Must have one academic year in F-1

status.

• Employment must not interfere with

course of study.

• Generated one year at a time.

• Work does not have to be related to

field of study.

• Must demonstrate severe economic

hardship due to unforeseen

circumstances.

Optional Practical Training (OPT)


academic year.

• OPT can be performed full-time (summer

vacation or after completion of

coursework) or part-time.

• Must apply for OPT before completion of

study.

• Work should be related to field of study.

• No job offer required.

STEM OPT: FROM F-1 TO OPT TO H-1B

F-1 (STEM) STUDENT

INTERNATIONAL STUDENT

Attending a university or college &

pursuing a degree in Science,

Technology, Engineering or Mathematics

OPTIONAL PRACTICAL TRAINING

AUTHORIZES F-1 STUDENTS

to work for an organization that directly

relates to their major field of study

CAP GAP & OPT

Student receives

updated

Form I-20 (Certificate of

Eligibility for

Nonimmigrant Status)

from DSO

Student provides

updated I-20 and

expired EAD card

Updated I-20 must be

endorsed with

recommendation for cap-

gap extension

Employer records

in Sec 2 or 3, the

EAD and EAD

Number. Put the

EAD expiration in

the date space

and “CAP GAP” in

the Additional Info

Field

H-1B accepted

for processing

Current OPT

status at time

of H-1B filing

ELIGIBILITYEVIDENCE OF

EXTENSION OF WORK

AUTHORIZATION

Document

on I-9USCIS

DECISION

Student can continue to

work until H-1B

approved and valid on

Oct. 1, or denied. Can

not use CAP-GAP past

10/1

Other Options If Not Selected in the H-1B Cap

• Must be a manager/executive (L-1A), or

specialized knowledge worker (L-1B)

employed by foreign business entity.

• Must have worked abroad at least one

continuous year in the past 3 years.

• Petitioning U.S. entity must have a

qualifying relationship with the entity

abroad.


academic year.

• Must be required as part of graduation

requirements or integral part of curriculum.

• Full or part-time work allowed.

• Full-time CPT for 12 months or more

disqualifies student from OPT.

• Job offer required.

L-1 VISAS Return to School and do Curricular

Practical Training (CPT)

E VISAS

• Treaty Traders (E-1) pursue substantial trade in goods principally between US and foreign country of which they are citizens or nationals.

• Treaty Investors (E-2) direct the operations of an enterprise in which they have invested, or are investing, substantial amounts of money.

• Treaty Traders and Investors must apply and receive their visa from a US Consulate or Embassy overseas.

TN Visas

• Applies only to citizens of NAFTA signatory

countries (Canada and Mexico) in qualified

positions.

• The position in the US must require a

NAFTA professional.

• Must have a pre-arranged full-time or part-

time job with a U.S. employers (self-

employment not permitted).

• You will be asked to provide proof of

citizenship at the port of entry.

Tracys