Trying for an H-1B Visa? Don’t Get Your Hopes Up Too Much

The H-1B application window opens soon, and employers seeking to obtain the popular visas for highly skilled guestworkers can expect new challenges as the Trump administration continues to tighten immigration policies and restrict entry into the U.S.

In the last H-1B filing season, U.S. Citizenship and Immigration Services (USCIS) received 199,000 petitions, far exceeding the annual cap that allows 85,000 of the temporary visas to be issued in a fiscal year. A flood of H-1B petitions is expected again this year when the fiscal 2019 application window opens on April 2.

Some expect increased interest in the H-1B program as other options for entering or working in the U.S. become scarcer. For example, uncertainty about the continued availability of TN visas—a product of the North American Free Trade Agreement—and work permits for the spouses of H-1B visa recipients could spur employers to seek H-1B visas on behalf of workers in those programs.

At the same time, USCIS is making it more time consuming and difficult for employers to file for H-1B visas, according to Michelle White, an immigration attorney with Littler Mendelson. Speaking in a recent webinar, she said employers have been receiving an unusually large number of challenges relating to their applications, which means employers must carve out extra time to complete additional Requests for Evidence, or RFEs.

"What is unusual is we are seeing companies get a second RFE. So while maybe the first one had to do with whether the position qualifies as a specialty occupation, USCIS might issue a second one relating to whether there is enough work to justify the role," she said.

One particular area that is raising red flags is whether H-1B applicants who would earn entry "level 1" wages would meet the visa program’s minimum standard as "specialty occupation workers." White said the best option for ensuring entry level workers qualify for the visas is to pay them at higher "level 2" wages, which "may not be an option for every employer."

Crackdown on Third-Party Arrangements

A new USCIS policy memorandum that took effect Feb. 22 imposes added restrictions if employers seek H-1B visas in situations where the employment will involve working at a third-party worksite. The memo states that in order to verify the "employer-employee" relationship, employers applying for the visa must provide "detailed statements of work or work orders" for employment at the third-party site.

The memo also says that the standard three-year duration of an H-1B visa might be shortened if, for example, the employer can't prove that the worker is "more likely than not" needed for the full period. Further, the memo says the administration wants to prevent employee "benching," which refers to situations where employers hire H-1B workers but don’t give them work or pay them required wages while they wait for jobs. 

As scrutiny heightens and restrictions tighten, it’s vital that employers give careful thought to their H-1B petitions to avert delays in the approval process or outright rejection of their applications. Employers should also consider other alternatives for meeting their talent needs, given the likelihood that the volume of H-1B requests this year will once again dwarf the number of visas available under the program’s annual cap.

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