Trump Administration Turns Attention to H-1B Visa Program
April 6, 2017
Employers are filing their Fiscal Year 2018 requests for new H-1B workers this week. It is probably not a coincidence that the Department of Homeland Security took several actions this past Monday, potentially impacting the H-1B visa program in the following ways:
- Increased site visits
- Increased scrutiny of computer programmer and other entry-level computer-related jobs
- Possible future elimination or curtailing of H-4 EADs
Increased Site Visits
The USCIS issued a memorandum on April 3 indicating its intention to combat H-1B visa fraud and abuse by increasing the frequency of site visits to H-1B employers. Specifically, the USCIS plans to focus its site visits to:
- Newer employers or employers not listed in commercially available databases (for example, Dun and Bradstreet)
- H-1B dependent employers (whose U.S. workforce is 15% or more H-1B visa holders)
- IT outsourcing and consulting companies who place H-1B workers offsite
Increased Scrutiny of Computer Programmer and Other Entry-Level Computer Jobs
The USCIS also published a policy memorandum which calls for more scrutiny of computer programmer and other entry-level computer positions when determining eligibility for H-1B visas. Specifically, the USCIS rescinded a memo from 2000 which recognized many of those occupations as requiring a minimum of a bachelors degree in a specific specialty field.
Possible Elimination or Curtailing of H-4 EAD
The Trump Administration indicated it will be reviewing the prior administration’s rule permitting certain H-4 spouses of H-1B visa holders to apply for Employment Authorization Documents (EAD). The DHS asked a district court to delay a pending case challenging the H-4 EAD rule, to allow the DHS to review its position and possibly revise or rescind the rule via notice and comment. Previously, the DHS under the Obama Administration was defending the H-4 EAD rule in the lawsuit. The district court has not yet ruled on the DHS request for delay.
What Should Employers Do Now?
Weaver Schlenger advises employers to take the following actions in light of these recent developments:
- Develop and clearly articulate your policy and/or chain of command for government site visits, even if you are not one of the targeted employers listed above (newly established, H-1B dependent, and/or outsourcing/consulting company). Site visits may be scheduled in advance, or may occur with no prior announcement, so it is important that each site’s receptionist knows who should be contacted. Typically, the DHS will ask for the name of the signatory on H-1B petitions – if that person is no longer employed at your site, make sure the receptionist knows who to contact now. In addition, the DHS might ask to speak directly with the foreign national employee – in that case, the receptionist should also contact the individual responsible for immigration to speak with the government representative. Please contact us for assistance in understanding what might happen during a site visit.
- Work with Weaver Schlenger to determine eligibility for H-1Bs, so as to avoid or prepare for Requests for Evidence based on specialty occupation (i.e., to clearly establish the H-1B job is one requiring a minimum of a bachelor’s degree in a specialized field). It is likely that the Fiscal Year 2018 cases just filed will be reviewed based on the April 3, 2017 memo (if selected in the lottery).
- If desired, work with Weaver Schlenger to initiate H-4 EADs for eligible spouses. There is a window of opportunity in which to apply before the government takes action to eliminate this benefit.
We will continue to monitor and report on government updates affecting H-1B employers. If you have any questions, please contact the attorney or paralegal with whom you normally work at Weaver Schlenger.