Talking H-1B: a year in review and planning your 2018 filings

By Kaitlyn Garcia, J.D. | Immigration Attorney | Houston, Texas

The H-1B is changing:

Just months after the new presidential administration took office, shifts in immigration law and policy started a new "era of immigration enforcement," most notably causing heavier scrutiny on the H-1B visa program.  Here is a timeline of H-1B policy changes that created pushback on the H-1B in 2017, and insights on what 2018 has in store for H-1B employers and employees. 

Timeline of 2017 H-1B Happenings: 

January 20, 2017 . . . The new presidential administration begins and America awaits bolstered immigration policy changes.

March 31, 2017 . . . Just a few days before the new H-1B cap season deadline approaches, USCIS releases a rescission of their Guidance memo on H-1B computer related positions that asserts discreetly, in footnote, that a level 1 wage designation in the H-1B labor condition application (LCA) contradicts any claim that the H-1B position is a specialty occupation, as required by the visa program. These footnotes would create a summer storm of H-1B Requests for Evidence (RFE) to hit employers by surprise.

April 3, 2017  . . . USCIS suspends premium processing for all H-1B visa petitions, causing significant burdens on employers. Employers hardest hit: project based petitioners. Without the service, an increase of amendments were filed on petitions and RFEs that were still pending, causing extra confusion and project delays. 

April 18, 2017 . . . President Trump signs the Buy American and Hire American Executive Order which seeks to create higher wages and employment rates for U.S. workers. Most significantly, the Order directs Department of Homeland Security (DHS) and other agencies to advance policies to ensure H-1B visas are awarded to the most skilled or highest-paid beneficiaries. The order officially set the stage for increased government initiatives to protect against H-1B fraud and abuse. DHS publishes "H-1B datasets" listing all companies that file H-1Bs and the amount each company files, all in an effort to show "transparency" in the hiring practices of H-1B employers for U.S. workers. 

June 2017 . . . Employers and their attorneys begin to see an unprecedented tidal wave of "the level 1 wage RFE" on all H-1B petitions, resulting in an increase of H-1B denials in comparison to previous years. 

October 3, 2017 . . . Premium processing finally returns for all petitioners seeking H-1B visas after six months of the service's suspension, one of the longest suspensions of the service seen in years. 

November 15, 2017 . . . House Judiciary approves H-1B bill with safeguards for U.S. workers.

December 14, 2017 . . . DHS' semi-annual regulatory agenda is released, addressing the future of the H-4 EAD, a new registration system for the H-1B lottery, revision of H-1B eligibility requirements, and revision to the OPT program. 

(1) Although the 2015 H-4 EAD Rule has not been terminated as of yet, DHS' agenda indicates that the H-4 EAD is planning to be terminated.

(2) The agenda proposes that the H-1B cap lottery system would award the visa to the most-skilled or highest paid workers through a "registration process." 

(3) The administration intends to revise the definition of "specialty occupation" to obtain the "best and brightest" workers, revise the definition of the "employer-employee relationship," and introduce new wage requirements - dramatically changing the legal requirements to get the visa. 

(4) The president intends to take measures to limit the employment opportunities for foreign students, possibly terminating the STEM-OPT Extension rule that allows STEM students additional time on OPT. 

Insights: 

  • 2017 was a year of increased H-1B scrutiny -  more requests for evidences, denials, and site visit/agency questionnaires were experienced. 
  • In 2018, employers could see changes to the filing and legal requirements of the H-1B program. Note: any proposed changes to the H-1B visa program will most likely not occur in time for the new Fiscal Year 2019 cap season beginning on April 1, 2018, however employers should, as always, keep informed to best prepare for any changes that may arise in the upcoming year. 
  • Employers with any questions on the changing H-1B climate, or need assistance planning their H-1Bs in 2018, are welcome to contact KNG Law for guidance and legal preparation.