Published November 1, 2017
I am often asked why and how there are so many undocumented people living in the U.S. The complete answer has many facets. One of those facets is that our immigration laws make it extraordinarily difficult for ready willing and able workers to fill jobs in need of filling, and even at market wage. Under the Trump administration, those laws have become even less user friendly for employers and workers, including in the H-1B work visa context.
Pursuant to federal statute, H-1B work visas are available for foreign workers to fill U.S. jobs, where 1) the position is one that typically requires at least the attainment of at least a 4 year university degree and 2) the worker has such a degree or equivalent in the required area of expertise. But the legal and procedural landscape for H-1B visa issuance has changed markedly in the Trump era with new policies being implemented by U.S. Department of Homeland Security/Citizenship and Immigration Service (DHS/CIS). The new policies are directly aimed at making it harder for U.S. companies to employ otherwise qualified foreign workers and all in the name of “protecting the U.S. worker”.
Wage Rate: Workers filling positions on H-1B work visas are required to be paid what the U.S. Department of Labor determines is the “prevailing wage” for the position at issue. In the past, the U.S. Department of Labor’s entry level or “Level One” prevailing wage determinations for H-1B work visa positions were deemed acceptable for entry level qualifying positions. Now, employers are under unprecedented scrutiny on this issue. DHS/CIS now questions how an entry level position in any job or profession can meet governing H-1B legal requirements in the first place, and at the same time, insisting that such petitioned workers should really be paid at a higher, Level Two wage. Notably, a Level Two wage is usually at, or close to, double the Level One wage, and one that is far beyond what an entry level professional is typically paid in the real world.
Previously approved? So What? Another significant departure from past practice involves the re-adjudication of previous H-1B approvals in the context of work visa extension requests. When it comes to DHS/CIS review of an employer’s request to extend a previously approved H-1B worker’s status, the fact that the worker had previously been approved, even many times over, will no longer matter. In sum, previous decisionmaking and approvals in this context will no longer be automatically deferred to, and a worker’s eligibility for H-1B visa classification will be reassessed.
IT Professionals in the cross hairs: For decades, jobs like computer programmer and system analyst were routinely approved for H-1B visa classification. DHS/CIS almost always, as a matter of policy, recognized that such positions can only be filled by a candidate with a university degree and thus qualify for H-1B classification. Not anymore. Initial and renewal H-1B petitions involving these positions are now greeted with lengthy requests for additional evidence to support the assertion that the position is specialized and legitimately requires prospective candidates to have completed a Bachelor’s degree program.
My clients who employ H-1B workers have informed me that these new policies will have the opposite effect of their intended goal. By having critical, hard to replace foreign workers forced out, companies will be needlessly restricted in their productivity, and with a ripple effect of stunting company growth and job creation. On the positive side, the obstacles presented by the new policies are by no means insurmountable, especially if DHS/CIS’ concerns are responded to thoroughly and with the support of a sound legal foundation.
PUBLISHED November 1, 2017– “IMMIGRATION LAW FORUM” Copyright © 2017, By Law Offices of Richard Hanus, Chicago, Illinois