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Are the Requirements for H-1B Visa Status Changing? Are the Requirements for H-1B Visa Status Changing?

Are the Requirements for H-1B Visa Status Changing?

The H-1B visa category is one of the most common temporary work, authorized visa classifications in the U.S. immigration system. Recently, it has been the subject of some controversy with news stories covering employers allegedly using less experienced and lower paid H-1B workers to replace American workers. President Trump’s recent “Hire American” Executive Order calls for an analysis of the entire U.S. immigration system, as well as proposals from related agencies to address fraud and abuse concerns. The Order separately targets the H-1B visa program suggesting the award of such visas should go only to the most-skilled and highest paid foreign workers. This level of reform to the H-1B program, of course, will require congressional action as the current law simply does not place these limitations on the program.  However, there are other important changes that various federal agencies can and will take with respect to H-1B adjudications and enforcement of existing statute and regulations.
Specifically, United States Citizenship and Immigration Services (USCIS) and other federal agencies have recently announced warnings and reminders to protect American workers from fraud, abuse and potential discrimination related to the H-1B visa program. U.S. employers rely upon the H-1B visa category to temporarily hire foreign workers for “specialty occupations” and are subject to various regulations affecting their employment. For the last several years, including most recently for fiscal year 2018, U.S. employers have sought H-1B status approvals in numbers that have far exceeded the congressional limit of 85,000 visas for new H-1B workers. Employers of H-1B workers must meet minimum prevailing wage obligations, provide notice at the place(s) of employment, maintain a public access file describing terms and conditions of employment and make certain attestations to the Department of Labor (DOL) that employment of the H-1B worker will not adversely affect the working conditions of similarly employed (U.S.) workers. The following recent announcements by these federal agencies confirm an enhanced focus on ensuring compliance with the H-1B program.
In a trio of announcements, USCIS announced efforts to address concerns related to H-1B fraud and abuse. Specifically, the agency points to “too many American workers who are as qualified, willing, and deserving to work in these fields” and who “have been ignored or unfairly disadvantaged. Employers who abuse the H-1B visa program may negatively affect U.S. workers, decreasing wages and opportunities as they import more foreign workers.” In an effort to protect American workers, USCIS has confirmed a more targeted approach to its existing H-1B site visit program. To date, USCIS site visits have been conducted randomly and are intended to confirm the H-1B worker’s actual wages, job duties and work location(s); see our previous article on site visits: USCIS confirms it will continue to conduct site visits on an unannounced and random basis, and effective immediately, the agency will also target areas where fraud and abuse may be more likely to occur, such as:
  • Instances in which USCIS cannot confirm employer’s basic business information (which could disproportionately affect start-ups);
  • H-1B dependent employers, which are defined under a sliding scale and employ a significant percentage of H-1B workers depending on total employee headcount and are subject to additional requirements for the protection of U.S. workers; and
  • Employers placing H-1B workers at third-party worksites, which must provide direction and control despite placement at a worksite not controlled by the H-1B employer.
USCIS has established a new email address to solicit anonymous tips, in addition to the existing avenues to report fraud allegations to the DOL and Immigration and Customs Enforcement. USCIS also provides several examples, which may be fraud indicators:
  • H-1B worker not being paid at or above stated wage;
  • Wage disparity between H-1B and other (U.S.) workers to detriment of U.S. workers;
  • H-1B worker not performing stated job responsibilities;
  • H-1B worker has less experience than similarly employed U.S. workers within the company;
  • H-1B worker not working at stated location(s).
USCIS has also rescinded an out-of-date policy memo related to adjudication of H-1B petitions for computer programmers. While this rescission does not mark a direct change in existing policy related to H-1B eligibility for programmers and other IT-related occupations, it does include a critical reminder that the entire H-1B program is limited to specialty occupations requiring the theoretical and practical application of a body of highly specialized knowledge, in addition to baccalaureate level education in a particular discipline, and that it is the employer’s (petitioner’s) burden to establish that the position qualifies for H-1B approval. For certain types of occupations, compensation at the low end of industry standards may be an indicator that the position will not qualify for H-1B status.
From DOL:
Similarly, the DOL announced plans to protect U.S. workers from discrimination related to the H-1B visa program. Specifically, the DOL intends to:
  • “Rigorously use all of its existing authority to initiate investigations of H-1B program violators,” including greater coordination with the Departments of Homeland Security and Justice;
  • “Consider changes to the Labor Condition Application (LCA) for future application cycles.” The LCA is required prior to the submission of an H-1B petition with USCIS and contains information related to the terms and conditions of the proposed H-1B employment. Such changes may include “greater transparency for agency personnel, U.S. workers and the general public”; and
  • “Continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.”
From DOJ:
The Department of Justice’s (DOJ’s) Civil Rights Division also cautioned employers not to discriminate against U.S. workers when sponsoring H-1B foreign workers. The DOJ’s announcement warns employers that it is “wholeheartedly committed to investigating and vigorously prosecuting these claims.” The Division’s Immigrant and Employee Rights Section (IER, formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices) is devoted to enforcement of anti-discrimination provisions found within the immigration statute, which prohibits citizenship, immigration status and national origin discrimination and other unfair employment practices separate from employer obligations under Title VII.

It is important that all employers of H-1B workers take seriously their obligations for employment of such workers, both with respect to USCIS, DOL and DOJ guidance. If you have questions related to the H-1B visa program, your obligations as an employer of H-1B workers or any other immigration related topics, please contact Jenifer M. Brown, Christl P. Glier or another member of Ice Miller's Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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