In a flurry of memoranda and press releases issued right before and during the filing window for this year’s H-1B cap lottery, U.S. Citizenship and Immigration Services and the U.S. Department of Labor announced efforts to curtail perceived fraud and abuse in the H-1B program.

On March 31, USCIS issued a policy memorandum clarifying that entry-level computer programmer positions do not generally qualify as “specialty occupations” as required by the H-1B visa category.  This memorandum supersedes the prior “Terry Way” memorandum, which provided a basis for arguing that such positions should qualify as specialty occupations.  In light of the new memorandum, computer programmer positions offered at an entry-level “Level 1” wage are unlikely to qualify for H-1B treatment.

Three days later, USCIS issued a press release announcing efforts to identify potential fraud in the H-1B program via targeted site visits.  The site visits will focus on 1. Cases where USCIS cannot validate the H-1B petitioner’s basic business information, 2. Companies (called H-1B dependent employers) which employ a high ratio of H-1B employees, and 3. Companies filing H-1B petitions for employees to work off-site at another company’s location.

Then on April 5, the Department of Labor issued a press release announcing its commitment to “protect[ing] U.S. workers from H-1B program discrimination.”  DOL says it will focus on “rigorously” using its authority to investigate possible H-1B program violators and will also consider changing the Labor Condition Application, a DOL-administered component of the H-1B application process, to provide improved transparency.

These efforts likely reflect the current administration’s focus on reforming the H-1B program.  On the campaign trail, President Trump vowed to “end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program.”  That the changes were announced immediately prior to and during the H-1B filing window that opened on April 1 means they may affect already-filed H-1B petitions.

Huddleston Law Group regularly counsels clients regarding the H-1B visa program.  Please contact us if you would like to discuss these issues further.

The USCIS Policy Memorandum, Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions,” is available at: https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf

The USCIS Press Release, Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse, is available at: https://www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse

The DOL Press Release, US Department of Labor Announces Plans to Protect American Workers from H-1B Program Discrimination,” is available at: https://www.dol.gov/newsroom/releases/eta/eta20170404-0

The filing window for Cap-Subject H-1B petitions for Fiscal Year 2018 will open on April 1, 2017.  Because proposed legislation increasing the H-1B Cap still continues to languish in Congress, we expect the number of filed H-1B petitions to exceed the cap for the 5th year in a row.  Petitions filed later than the first week of the filing period are unlikely to be considered, so employers with a need for H-1B workers should contact their attorney as soon as possible to begin preparing these petitions and composing a Plan B for employees not selected in the expected lottery.

Over the last four years, the 85,000 petition Cap (65,000 for regular petitions and 20,000 for U.S. Master’s degree petitions) has been reached within the first week of the filing period.  For FY 2017, approximately 236,000 H-1B petitions were filed during the first week. USCIS used a computer-generated random process to select the 85,000 petitions eligible for adjudication, leaving only a 36% chance of selection.  Petitions not selected in the Cap lottery are returned with filing fees, and unsuccessful applicants must wait until the next April to apply again or find an alternative route to employment authorization.

The 2018 Fiscal Year runs from October 1, 2017 to September 30, 2018.  Employers will be able to submit new H-1B petitions to USCIS beginning April 1, 2017 (six months before the start of the 2018 Fiscal Year).  Approved beneficiaries can begin their H-1B employment on October 1, 2017.  If, as we expect, the Cap is reached during the first week of the filing period, any petitions received after the first week of the filing period will not be considered, and any petitions not selected in the lottery will be returned.

Early discussions with your immigration attorney can identify alternatives to the H-1B route, potential roadblocks in the preparation of an H-1B petition, and contingency plans in the event of an unsuccessful lottery.

Assessing Your Cap-Subject H-1B Needs

H-1B visas are available for specialty occupations requiring a bachelor’s degree or its equivalent.  For current or transferring employees, employers should consider the following to determine potential FY 2017 H-1B applicants:

• Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need to change status to an H-1B;
• Determine whether any TN employees (NAFTA professionals) or H-1B1 employees (citizens of Chile or Singapore) might want to an H-1B to be eligible to apply for adjustment of status to permanent residence;
• Review those employees with expiring O visas (renewable in only one year increments rather than the three year increments available to H-1B visa holders);
• Check whether your transferring employees who currently hold H-1B status have already been counted against the Cap (note that any employee transferring over from an employer exempt from the H-1B Cap may now be subject to the Cap);
• Consider whether you employ someone in L-1B status who might need to switch to an H-1B to gain an additional year of status.

Cap-Exempt Circumstances

Employers or beneficiaries in the following categories may be exempt from the 85,000 numerical limit:

• Higher education institutions and related non-profits;
• Non-profit or government research organizations;
• Beneficiaries who have held H-1B status in the last six years, but have not exhausted their entire six-year period of stay.

Please contact us if you’d like to discuss your H-1B hiring needs.