Immigration Matters - 2019


Constant Changes Swirl around the H-1B Visa

By Rishi P. Oza

Historically, the H-1B visa has been a significant driver of growth by bringing professionals to the United States. The visa, given to foreign nationals occupying a “specialty occupation" has been the option of choice for employers seeking to fill positions for software programmers, engineers, physicians, scientists, as well as a host of other professionals within the US economy. However, recent changes instituted by the United States Department of Homeland Security have made obtaining the H-1B increasingly difficult for employers.

Over the last 10 years, the most pressing problem with the H-1B has been the limit of available visas for new applicants, commonly known as the Cap. Congress authorizes 65,000 new visas to be issued to first-time recipients, with an additional 20,000 visa set aside for foreign nationals graduating from US colleges or institutions with a master's degree or higher. This annual limit has proven to be inadequate in responding to the demand for highly skilled workers by employers.

Critics have asserted that employers now seek to hire H-1B workers over US workers in a hope to lower labor costs, although the H-1B is designed to ensure that a foreign worker is being paid at least the wage paid to similarly-situated workers in their geographic area, commonly known as the prevailing wage. Recent years have shown demand for H-1Bs exceeding 200,000 applications, making it such that employers have approximately 1 in 3 odds of having their employee selected for processing. Although Congress is aware of the issue, no steps have been taken to increase numbers to meet this demand.

Additionally, DHS has begun to strictly scrutinize existing applications with respect to wages paid and job duties assume. This has resulted in a spike in the number of requests for additional evidence issued by DHS as well as denials, much of which springs from the current administration's belief that many employers are either depressing wages or not having their employees assume specialty occupations. In order to obtain an H-1B, an employer must show that the job position requires a bachelor's degrees or its equivalent amount of experience for approval.

This change has left employers and practitioner scrambling, as DHS adjudications are applied inconsistently to applications, a problem that has plagued the agency for years. The result has been a feeling among employers of the agency continuously “moving the goalposts" of analysis, thereby creating uncertainty within the entire filing structure. With current unemployment rates hovering around 4 percent, the inability of employers to fill highly skilled labor needs could potentially have a long-range impact on the vibrancy of the US economy.

Technology and consulting-based positions have drawn particular scrutiny. DHS has increasingly questioned whether software programmer, computer analyst, and digital manager positions necessarily require a degree for competency. Employers, particularly from Raleigh's Research Triangle Park, Silicon Valley and other high-tech areas have pushed back, arguing that the lifeblood of emerging technologies has been built on the backs of immigrants; as a result, employers have continued to press for an easing of finding skilled labor. As the US economy becomes more technologically savvy, the need for these highly skilled workers will continue to increase, which should result in wage gains by all workers, thus allaying the primary fears among H-1Bs critics.

Recently, USCIS has announced additional reforms aimed at curbing the time-intensive nature of the H-1B filing process. USCIS has indicated that new filings aim to be pre-screened through a Department of Labor portal, which will administer the CAP lottery process without requiring a complete H-1B filing. Only if an employer's petition is selected in the CAP-lottery will the complete application need to be submitted. USCIS has cited significant costs to industry and the agency in data collection as a basis for this change; however, concerns have been raised regarding adding another step in an already unwieldy filing process. Many individuals in the field hope to see a rational and long-needed reform to the H-1B visa classification, so as to continue to allow these highly-skilled immigrants access to the most dynamic economy in the world.

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Rishi P. Oza is the Partner at Robert Brown LLC, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com