The recent spurt of Executive Orders and speculations that the current Administration plans to severely curtail the availability of H-1B visas even further than has been the case in the last few years has caused much consternation and fear in many employers and hopeful employees. The source of much of this speculation and forecasting is an allegedly leaked Executive Order on H-1B and L-1, and two competing bills currently making their way through the House.
It is crucial that employers and employees sift fact from fiction as each prepare to head into H-1B season for Fiscal year 2018. The law as it currently stands:
H-1B “cap subject” applications can be filed with USCIS on April 01, 2017. This year, much like last year, we expect USCIS to receive enough applications that a lottery will be necessary to select the lucky few that will be able to proceed with their H-1B applications. The H-1B “Cap” refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on an H-1B-type visa or authorized to change status if already in the United States.
Under the Immigrant Act of 1990 (IMMACT), Congress imposed an annual cap of 65,000 H-1B visas for each fiscal year (Undergraduate degree) plus an additional number of 20,000 H-1B visas for those with a US Masters degree. The total number of cap subject H-1B visas available in any fiscal year is 85,000.
This number has NOT increased for Fiscal year 2018; therefore, employers who want to file H-1B visas for employees would be best served by making sure that they and the respective employee is ready with all requisite documents, and that the H-1B application is filed with USCIS on April 01, 2016. The cap is expected to be reached within the first three days.
H-1B Plan of Action for Employers:
- All employers should have identified candidates and potential employees by the end of February at the latest
- Labor Condition Applications (LCA) must be filed and certified before the H-1B can be submitted. Please note that it takes, on average 5 working days for an LCA to be certified. If you are new employer, allow a minimum of at least 10 days for the LCA to be certified.
- ALL H-1B applications MUST be mailed to USCIS on March 31, 2017 in order for them to arrive at USCIS on April 01, 2017 i.e. the first day that USCIS will accept H-1B applications for FY 2018.
*Please see advice regarding actions for TN/OPT workers below
Proposed Amendments to H-1B Visa that are pending in Congress
“High Skilled Integrity and Fairness Act of 2017” (H.R. 670)
Introduced by Rep. Zoe Lofgren, this bill aims to do the following:
- Eliminate Per Country Cap for Employment based Visas so that there is no backlog for people of particular national origin as has been the case for Nationals of India and China
- Increases Minimum Wage: Re-sets the dependent wage exemption level from $60,000 to $130,000 or higher (Dependent employer is defined as a company with minimum of 50 employees where at least 25 are on H or L status)
- Allows for Transparency to benefit the Employee: Employers must provide the employee with a copy of their immigration paperwork within three years of the date on which the petition was filed with the Government, AND provides for prohibiting liquidated damages for H-1B employees who cease employment prior to a date agreed to by the employee and the employer
- Reforms the Prevailing Wage System to effectively eliminate the lowest wage (Level 1 wage) and increases wages in the remaining two levels
- Allows for Market Based H-1B Visa Allocation: Prioritizes allocation of H-1B visas based on wages as follows:
- Employers paying prevailing wage level 3 at 200% of prevailing wage, then 150% of prevailing wage (including cash bonuses and similar compensation);
- Employers paying level 2 at 200% of prevailing wage, then 150% of prevailing wage (including cash bonuses and similar compensation);
- Employers paying level 1 at 200% of prevailing wage, then 150% of prevailing wage (including cash bonuses and similar compensation);
- Change of job location to require higher wage: Requires that if employers have beneficiaries work 30 days or more in an area of employment other than the one indicated at the time of filing, they must pay the prevailing wage of the area of employment with the highest prevailing wage at the same wage level indicated at filing.
- Reservation of Visas for StartUp Employers: The bill sets aside 20% of the total available H-1B visas for small and start-up employers. Employers MUST sign an attestation that any beneficiary filing under this subsection will not be required to work at a third party location for more than 30 days
- Removes the need for Amended H-1B Petitions: Streamlines H-1B filing requirements and reduces administrative costs by clarifying that an amended petition need not be filed with USCIS upon an employee worksite change, if the petitioner has already secured a valid, certified Labor Condition Application for the new place of employment.
- Enforcement Authority: Allows USCIS to pass on information to the Department of Labor to initiate investigations against the employer for violations of H-1B regulations
Protect and Grow American Jobs (H.R.170)
Introduced by Rep. Darrell Issa and co-sponsored by Rep. Scott Peters, this bill is aimed at tightening, but not closing, a loophole that the sponsors believe large H-1B firms have benefited from. Key aspects of this bill include:
- Preference for American Workers: Any company paying H-1B workers less than $100,000 would have to show that they attempted to, but could not Americans for the same job
- The bill would also increase minimum wage payable to H-1B workers to at least $100,000
- It eliminates the Master's Cap
- It applies to all employers with a workforce of at least 50 full time employees where at least 15% are on H or L visas.
The Leaked Executive Order
“Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs“
Disclaimer: There is no confirmation or indication that this “leaked” order even originated in the White House, but it has been reported on by several news sources. As of today, no bills or orders resembling this document has been signed.
Impact on H-1B Workers:
The (unconfirmed and unsigned) draft version of this executive order would not have a direct impact on the H1B program, but it would pave the way for changes to come in the future. Although lacking in specifics, the order instructs the Secretary of Homeland Security to:
- “in consultation with the Secretaries of State and Labor … restore the integrity of employment-based non-immigrant worker programs and better protect U.S. and foreign workers affected by those programs”
- “consider ways to make the process for allocating H1B visas more efficient and ensure that beneficiaries of the program are the best and the brightest”
- “… provide recommendations for making U.S. immigration policy better serve the national interest; and to recommend changes to the immigrations [sic] laws to move towards a merit-based system”
As stated above, specifics are lacking, and the instructions are all relatively vague. The order serves to direct the Department of Homeland Security (DHS) to examine potential changes to be made in the future. It calls for the Secretary of Labor to issue a report on “… the actual or potential injury to U.S. workers caused … by work performed by non-immigrant workers in the H1B, L-1, and B-1 visa categories.” There is the potential for future changes to the program based on these reports, but the exact nature and extent of those changes remains to be seen.
Impact on L-1 Workers:
The leaked version specifically direct Department of Homeland Security to expand site visits targeting place of employment for L-1 employees. It also requires the Secretary of Labor to:
- provide within 18 months a report to the President describing the “extent of any injury to U.S. workers caused by the employment in the United States of foreign workers admitted under non-immigrant visa programs or by the receipt of services from such foreign workers by American employers; and
- provide within 9 months a report on the “actual or potential injury to U.S. workers caused, directly or indirectly, by work performed by non-immigrant workers in the H-lB, L-1, and B-1 visa categories.”
Given the above and the general state of uncertainty, what should employers do:
- BE PREPARED FOR INCREASED ENFORCEMENT: Employers should not only anticipate increased workplace audits and document inspections from Immigration and Customs Enforcement (ICE), but may also see the return of higher profile and heavily punitive actions such as workplace raids and worker detention. These high profile actions may also be highly publicized in efforts to make an example of businesses and workers that thwart the new administration's vigilance.
- I-9 COMPLIANCE/E-VERIFY IS IMPERATIVE: Currently use of the federal Employment Eligibility Verification (E-Verify) system is only required for certain federal contractors and in a patchwork of states. About half the states have some form of law that addresses E-Verify, but these laws differ as to the employers to which they apply. Some states require all employers to participate, some only public employers, some public employers and contractors, some only contractors, etc.We are likely to see legislation making the use of E-Verify mandatory for all employers—or at least employers of a certain size—nationwide. Though previous attempts to make E-Verify mandatory have failed, these efforts have been part of broader, comprehensive immigration reform bills. Pursuit of mandatory E-Verify in a stand-alone legislative measure may be more successful.
E-Verify is free to use. Employers who wish to learn more about the I-9 or E-Verify, or who wish to conduct an audit to ensure you are in compliance before Homeland Security Investigations (HSI) comes knocking are encouraged to call us at (206) 623-3352. We will sit with you and train you to properly complete Form I-9 and help you create a system to properly maintenance and purging or old I-9 records
- COMPLIANCE IS KEY: I-9 and E-Verify are not the only compliance requirements for employers. ALL employers with H-1B employees, must also make sure to have a Public Access File (PAF) per employee on hand. If you do not know what a PAF is, or how to create one, call us now!
- PLAN AHEAD: Employers with any employees on TN, H-4(EAD) or STEM OPT should plan ahead. It is likely that the current administration will re-negotiate NAFTA in such a way that TN visas may well be placed in immediate jeopardy. To avoid loosing any employees you currently have that may be on TN status, it is best to include these employees in your plans for H-1B filings for Fiscal year 2018. The same advice applies to all employees currently working on H-4 EAD's and OPT's which may be terminated at a moment's notice.
- STAY UPDATED ON CHANGES TO EMPLOYMENT BASED VISAS: A close working relationship with Immigration counsel, whether in-house or outside counsel is key at this time. We are witnessing sea changes in Immigration Law enacted with very little or no advance notice. Your ability to make sense of the changing landscape with minimal loss to your business and the people that support you and your work will depend on your relationship with trusted advisors that are able to guide and support you.