Responding to H-1B Request for Evidence in the Trump Era

An H-1B visa is an employment visa for professional workers in specialty occupations that have at least a bachelor degree or equivalent.  Throughout the H-1B visa’s history, the United States Citizens and Immigration Services (USCIS) has been concerned that employers will abuse the H-1B visa by displacing American workers with foreign Responding to H-1B Request for Evidence in the Trump Era counterparts at lower wages.

In 2009 and 2013, the Obama Administration sought to reform the H-1B visa after a study conducted in 2008 revealed that 21% of H-1B visas were granted to applications that contained fraudulent or technical violations.  In the 2008 study, 42% of H-1B visas granted to computer professionals contained fraudulent or technical violations.

Even after the Obama Administration’s changes abuse and fraud remain a concern of the H-1B application process. In 2016, two lawsuits were filed against Disney, which alleged Disney and its staffing companies colluded to use the H-1B visa to replace American workers with foreign workers at lower wages through a series of layoffs.  The suits were dismissed in federal court after a judge found that the plaintiffs had failed to present enough evidence that would reasonably demonstrate that Disney had engaged in the alleged activity.

When Donald Trump took office he vowed to place American workers and American jobs first and end the exploitation of American labor and capital.  President Trump’s Buy American and Hire American executive order illustrates his administration’s will continue to pursue policies to carry out his campaign promises.

As part of President Trump’s Buy American and Hire American mantra his administration took another look at the H-1B visa in 2017 and altered what the USCIS may consider as evidence when reviewing an H-1B visa application.

This article explores the new evidentiary standard that will be applied, the industries most likely to be affected by the Trump administration’s new standard, and what information must be demonstrated to obtain an H-1B visa under this new standard.

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National Interest Waiver

Employment-based visas that lead to permanent residence in the U.S., or a green card, have several different preference groups with different eligibility requirements. Most of these preference groups require a foreign national to have a full-time job offer in the United States and the filing of a labor certification application with the Department of Labor to obtain an official certification from the government agency that there is a shortage in the U.S. workforce before being able to proceed with the green card process. A foreign national generally cannot sponsor themselves.  Employers may often be hesitant to sponsor a foreign national because the process can be expensive and time-consuming.

Fortunately, there are a few exceptions.  Under the second employment-based preference category, EB-2, a foreign national would not need a specific job offer or labor certification if he or she were eligible for a National Interest Waiver (NIW). To be eligible, a foreign national must demonstrate they are (1) a member of a profession holding an advanced degree (doctorate, masters, or bachelor’s degree with five years of progressive work experience); or (2) a foreign national of “exceptional ability” whose employment will be of the “national interest.”

There are evidentiary requirements for demonstrating a foreign national’s area of work will be of national interest, but neither Congress nor UCSIS has defined national interest in an attempt to allow the law to be as flexible as possible.

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Do’s & Don’ts in H-1B Filing Season

Each year prior to April employers and their prospective employees vying for the much coveted H-1B status, of which currently only 85,000 visas are available every year, work to file their cases with U.S. Citizenship & Immigration Services (USCIS) and hope that they will actually have their H-1B applications approved.  Because so much can be at stake in these filings, potentially resulting in loss of job and business opportunities, not to mention potentially displaced foreign nationals who would not be able to be in or continue to stay in the United States absent other viable immigration options, paying attention to details and making sure that a filing is done correctly may make all the difference.

For a comprehensive overview of the H-1B process, read my article Basic Overview of the H-1B Visa Qualifications and Procedures.

Here are some basic guidelines that should always be observed in H-1B filing season:

  • DO start early in the planning process and DON’T wait until the last minute to begin an H-1B case.  The process of gathering the required information and documents in each case can take a few days to several weeks or longer, depending on the size of the employer and the unique situation of each prospective employee.  Additionally, before an H-1B application can be submitted to USCIS, an employer also needs to file a Labor Condition Application (LCA) with the U.S. Department of Labor, which can take up to 7 working days to certify.  Filing an H-1B application without a certified LCA is counterproductive as USCIS will simply reject and return the entire filing, therefore it is important to allow enough time before April 1st to plan, stay organized and make sure that the LCA is in hand.
  • DO expect that the employer or the H-1B petitioner will remain actively involved throughout the entire process.  DON’T rely on the prospective H-1B employee to do all the legwork.  The H-1B is an employment-based process, and the petitioning employer must be aware of what is involved and have a keen understanding of the process itself.  Having the prospective employee “take care of things” generally would not benefit anybody, including the H-1B employer.
  • DO have a clear understanding of the proposed H-1B position, its duties as well as the wage requirements.  DO make sure that the proposed position is a good match for the prospective employee’s skills and qualifications.  DO check that the H-1B candidate has the necessary documentation to demonstrate that he/she is qualified for the proposed position.  DON’T rush through this process as USCIS may very well come back and challenge the merits of this H-1B filing later.
  • DO have a backup plan.  DON’T put all eggs in one basket, as the expression goes.  If the prospective employee was not fortunate enough to have his/her H-1B application selected for review by USCIS, he or she might need to go back to school, apply for another work visa, or return to his/her home country.  Whatever the option may be, it is important to think through these less desirable but possible scenarios ahead of time.  A good strategy is to prepare for the worst and hope for the best!

For more information about this process schedule an appointment with our office today.