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28 February 2020
Changes to 'specialty occupation' definition
Prioritise wage and skill level in H-1B lottery
Revise degree equivalency criteria
Impose LCA fee
Revise standards used by DOL to review LCAs
Impose recruitment requirement on all H-1B employers or extend LCA notice of filing period
Increase enforcement activities
Annual compliance audits of H-1B employers
Changes to 'employer-employee relationship' definition
Recalculate wage levels
As the US Citizenship and Immigration Services (USCIS) begins to implement its online electronic registration system for H-1B cap-subject petitions for Fiscal Year 2021 – which is a major deviation from prior years – an examination of the additional changes to the H-1B programme which may be made in the future is in order. Some of these proposed changes are due to concerns by law makers and government officials that US wages and workers may be negatively affected as a result of fraud or abuse by certain US employers that use the H-1B programme. This article provides a description of some possible revisions to the H-1B programme that the US government and law makers may pursue in the future.
The USCIS Ombudsman's 2019 Annual Report to Congress, as well as HR 1044 (Fairness for High-Skilled Immigrants Act 2019) and other recent proposed legislation provide examples of some possible changes that may be made to the H-1B programme in the future. Below is a brief summary of the changes and the impact that they may have on US employers.
The law currently defines the term 'specialty occupation' as:
an occupation which required theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, and business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
The law does not define the term 'highly specialised knowledge' within the definition of 'specialty occupation'. By defining the term 'highly specialised knowledge' it may make it more difficult for foreign nationals to qualify for the H-1B category. In addition, employers may be required to provide more documentation in support of their H-1B petition filings.
The H-1B lottery process may be reformed in a manner that would eliminate the random selection process and give priority to those foreign nationals who are being sponsored based on the following factors:
The law allows foreign nationals to qualify for the H-1B category by establishing that they have a bachelor's degree (or equivalent) in a specific specialty related to the offered H-1B position. As a result, foreign nationals may qualify for the H-1B category through progressively responsible experience in the field in the specific specialty, rather than by possessing a single source bachelor's degree from a college or university. The law allows for a combination of education, experience and training to be considered when determining whether a foreign national has the equivalent of a bachelor's degree in the specific specialty. Under the regulations, three years of increasingly responsible professional experience equates to one year of college-level training. The USCIS may modify its regulations to increase the level of experience that may be substituted for each year of college level-training.
There have been proposals made to charge a fee to employers wishing to file a labour condition application (LCA) on behalf of a foreign national. The fees would be used to hire additional personnel, which would allow the US Department of Labour (DOL) to increase its investigation and enforcement activities. In addition, the fee would allow the DOL to hire additional personnel to assess and review LCA submissions in more detail before certifying the LCA. If an LCA fee is imposed in the future, US employers would need to plan and budget accordingly.
Several immigration bills have proposed revising the review and certification standards in connection with LCA processing and certification by the DOL. The DOL currently reviews LCAs for completeness and obvious inaccuracies. If an LCA is incomplete or obviously inaccurate, the DOL does not certify it. However, the standard of review may be revised in the future, whereby DOL personnel may review LCAs for clear indicators of fraud or misrepresentation of material facts. A revision in the review and certification standards in connection with LCA processing may result in an increase in DOL investigations and audits. In addition, it may result in increased processing time of LCAs by the DOL. As a result, US employers may be unable to place H-1B workers on projects or at client sites as quickly in the future.
To date, a labour market test has been avoided in order to streamline the process for US employers wishing to sponsor foreign nationals for the H-1B category, except in the case of dependent H-1B employers or willful violators, if certain conditions exist. However, law makers have considered imposing a recruitment requirement on all US employers that wish to sponsor a foreign national for an H-1B visa. Legislation that was recently proposed would require employers, before filing an LCA with the DOL, to first provide a 30-day notice of the filing of the LCA and certain information regarding the proposed H-1B employment. It has been proposed that this notice be provided through a publicly available internet portal. If a 30-day notice period is imposed, it would lengthen H-1B petition processing; thus, employers would need to plan accordingly.
The USCIS is focused on increasing its enforcement activities, particularly with respect to H-1B workers placed at third-party work locations. At present, US employers are permitted to place H-1B workers at a customer's (third-party) facility. The USCIS has developed an H-1B site visit programme in order to ensure that workers comply with the terms and conditions of their H-1B employment when placed at a third-party work location. The USCIS has increased the number of worksite inspections in the past year and appears poised to expand the criteria used to initiate them. In addition, there is evidence that shows that the USCIS may further promote its Tip Line Centre and the mailbox (ReportH1BAbuse@uscis.dhs) that the public may use to report fraud and abuse with respect to the H-1B programme.
Legislation has proposed regular, annual compliance audits of employers that use the H-1B programme. At present, the DOL does not conduct annual audits of H-1B employers to ensure compliance with DOL LCA regulations. The DOL's wage and hour division conducts audits or investigations based on complaints made by workers or members of the public. As a result, if annual compliance audits are initiated by the DOL in the future, US employers would need to ensure that their H-1B public access files are accurate and properly maintained.
The USCIS may redefine the term 'employer-employee relationship' between a petitioner and beneficiary to eliminate the petitioner's ability to place an H-1B worker (beneficiary) at a third-party work location. Other revisions to the term may result in some US employers being ineligible to file an H-1B petition on behalf of a foreign national. For example, depending on the revisions to the term 'employer-employee relationship', some US employers which service software owned by a third-party may not qualify as an H-1B employer in the future.
In order to award H-1B visas to the highest-paid workers, it has been proposed that the DOL revise the methodology used to calculate wage levels contained in the Occupational Employment Statistics programme, which produces employment and wage estimates for more than 800 occupations.
Many of the proposed changes would have to undergo the rulemaking process and require legislation to be passed by Congress and signed into law by the president before implementation. However, proposals to increase certain H-1B enforcement activities would likely not need to undergo the legislative or rulemaking process. If President Trump is re-elected, the US economy declines or the US unemployment rate begins to increase, some of these proposed changes to the H-1B programme may become a reality. US employers should be aware of the abovementioned possible revisions to the H-1B programme and plan accordingly.
For further information on this topic please contact Matthew C Morse at Fakhoury Global Immigration USA, PC by telephone (+1 248 643 4900) or email (firstname.lastname@example.org). The Fakhoury Global Immigration USA, PC website can be accessed at www.employmentimmigration.com.
Chris Olson and Dominic Chirco assisted in the preparation of this article.
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Matthew C Morse