Changes to the H-1B Visa Program

The H1-B visa is designed to allow U.S. companies to employ graduate-level workers (or those who can demonstrate an educational equivalent) in speciality occupations, such as science, medicine, IT, finance, engineering, etc. Before looking at some recent changes to the H1-B visa that have already taken place — and some significant shifts that may be on the horizon — here are some additional basic facts.

What Hasn’t Changed:

• Employers that want to hire a worker with an H1-B visa must file a petition with the Department of Labor attesting that they have a need for someone in a speciality occupation, and that they are willing to pay the prevailing marketplace wage.
• The work performed by the employee must take place in the U.S.
• Some petitions are not subject to the standard H-1B visa cap. These include: applicants who have counted towards the cap in previous years and have not been outside the U.S. for more than one year; universities, government-funded research organization, and some non-profit organizations are exempt from the cap; foreign nationals who received an advanced degree from a U.S. university may quality for a separate cap of an additional 20,000 H-1B visas; a certain number of H-1B visa are allocated for citizens of the Philippines and Chile.
• The official filing deadline date is April 1 each year.
• The USCIS offers premium H-1B visa petition processing for a $1,000 fee (15 business days or less).

What Has Changed:

The Trump Administration signed an Executive Order on April 18, 2017 that called for U.S. employers to “hire American and buy American.” At the same time, the Department of Labor, Department of Justice, and Department of Homeland Security, respectively, have been directed to scrutinize all employment programs that involve foreign workers (including but not limited to H-1B visa).

In light of this mandate, one of the first changes to the H-1B program is that computer programming positions are no longer being given automatic deference over other speciality occupations. The onus is now on employees to demonstrate that a specific computer programming-related position qualifies as a speciality occupation, and specifically, that the role requires a worker with a bachelor’s degree or higher.

What Might Change:

The Trump Administration has suggested ending the current practice of awarding H-1B visas based on a lottery, and instead using an inter-agency group establish new skill and remuneration standards.

Furthermore, the DOJ and DOL, respectively, have been advised to step-up investigations against employers who are allegedly discriminating against qualified U.S. workers by opting instead to hire H-1B visa holders.

Next Steps

Nobody can say with certainty (not even the White House) what the H1-B visa program will look like in the near future, but it is without question it will change — perhaps profoundly. Employers who currently or need to hire through the H-1B visa program, as well as individual workers who want to petition for an H-1B visa, are advised to consult an experienced H-1B immigration attorney for specific, step-by-step guidance.