A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, April 20, 2017

Can H-1B Survive the "Buy American Hire American" Executive Order?

The Buy American, Hire American Executive Order was signed by President Trump on April 18, 2017.  Part of the order is focused on the H-1B visa program. Despite the extensive media coverage of the matter, a copy of the actual order is still not readily available.  However, based on the information from the media and a background briefing of the White House, we can evaluate the impact of the EO on H-1B:

Basic requirements of H-1B should not be affected
The basic requirements and terms of the H-1B Visa Program should not be changed by the EO.  Like most other visa programs, H-1B was created by Congress - the branch of the U.S. government that is charged with the legislative power to make laws under the Constitution.  Hence, changes in the major components of H-1B can only be effected by a Congressional Act.

Annual quotas of 65,000 and 20,000 will remain for the time being
There is currently an annual cap of 65,000 for H-1B visas.  This is called the regular cap.  An additional 20,000 visa numbers are reserved for individuals who have earned an eligible advanced degree (master or above) in the U.S.  These visa caps were also set by Congress and cannot be changed by the Executive branch.

Adjudication standards will be tightened
The Trump Administration has instructed the DHS/USCIS and other departments to review and monitor various visa programs including the H-1B for fraud and abuse.  Hence, petitioners and H-1B workers should expect more formal Requests for Evidence (RFE) from USCIS.  It is expected that adjudicators will ask for additional documents on common H-1B issues such as: whether a position qualifies as a specialty occupation, whether a foreign worker qualifies for the position, etc.  Premium processing has been suspended and processing of H-1B cases will likely be slow this year. Further, tightened legal standards will likely result in higher denial rates.

H-1B salaries will be scrutinized
The gravamen of the Trump Administration and opponents of the H-1B program is that H-1B workers are "cheap labors" who take away jobs from American workers.  Hence, the salaries and wages offered to H-1B workers will likely be scrutinized going forward.  There are currently four levels of prevailing wages for H-1B workers. These wage levels are set by the Department of Labor. Petitions offering Level 1 salaries or using lower-paid job classifications will likely be challenged.

Hire only the best and the brightest
"Hire American, Buy American" is the title of the EO.  The Trump Administration proposes that the H-1B visas should only be granted to the best-skilled and highest paid foreign workers rather than allocated by means of a visa lottery. The current system of using a random computerized selection process was created and implemented by USCIS.  The agency may choose to change this selection process in the future. In fact, at least one lawsuit was filed against USCIS on the use of the visa lottery.

Substantively, the statute does not require that only the best-qualified or highest-paid applicant may be issued an H-1B visa (although in the real world this is usually what employers do or attempt to do).   It is doubtful if these requirements can be imposed administratively.  And if they are, the end result would likely be that only the likes of Google, Facebook, Apple, etc., would be able to hire H-1B workers.  As the White House officials pointed out, the average salary of a software engineer is $150K in Silicon Valley, compared to the $60K-$65K average salaries of entry-level H-1B workers.

However, Silicon Valley is essentially in a class of its own; do we really want to use it as a measuring stick?    But the real difficulty is with implementation. Are we going to have employers bid for the highest paid employees? And how do we decide who has better skills? Standardized tests? College ranking?  or GPA?

Volume filers of H-1B petitions
The White House officials also singled out the top three filers of H-1B petitions in terms of volume. They happen to be all consulting firms based in India.  IT Consulting firms have long been viewed with skepticism.  They typically hire H-1B workers and place them in various third party work locations. It is only natural that they are targeted under Trump's Buy American, Hire American initiative.  What to expect: H-1B petitions with off-site employment and third party placement will be heavily scrutinized. Substantial documents will be requested to establish that a valid employer-employee relationship exists throughout the duration of the employment period.  

The Administration has announced some broad objectives under the "Buy American Hire American" executive order.  The details of the changes remain to be seen. It has instructed at least four departments (DHS, DOL, DOS and DOJ) to review the current visa programs and system. Actual regulatory and administrative changes are expected to come down gradually at the end of the review process. But for now, we have already seen longer processing time, tighter adjudication standards and increased use of RFEs.

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