JUNE 2017
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Immigration

Newest Executive Order Targets H-1B Program; Other H-1B News

Dilip Patel

By DILIP PATEL

On April 18, President Trump signed yet another Executive Order, “Buy American and Hire American,” in which he directs various agencies to review the current laws governing the H-1B program. President Trump also indicated he was directing federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers. Even before the Executive Order was announced, several agencies marked the beginning of the current H-1B filing period by announcing that they would investigate and prosecute vigorously companies that don’t comply with the regulations. First and most significantly, United States Citizenship and Immigration Services (USCIS) issued a statement detailing its increased efforts to ferret out fraud in the visa program with additional site visits to H-1B dependent employers, contractors, and small companies that have limited business. It also released a memo that said “computer programmers” would no longer be considered automatically an H-1B “specialty occupation” absent additional information. And the Department of Justice (DOJ) Immigrant and Employee Rights Section warned employers petitioning for H-1B visas to not discriminate against U.S. workers.

While the Executive Order will have no immediate impact on H-1Bs because significant change to the program would require legislative action or rulemaking, it is another pronouncement from the White House that creates extreme uncertainty for noncitizens and for U.S. employers who hire foreign nationals. The H-1B program, enacted in its current form in 1990, certainly needs review and an update but the visa program generally does not act as a mechanism to replace American workers or depress wages. And, the system is not riddled with abuse. On the contrary, U.S. businesses use the H-1B to gain access to the sought-after skills of foreign professionals to complement the U.S. workforce, paying fees and costs that are significant. Studies show that foreign professional personnel greatly benefit U.S. businesses, U.S. workers, and the economy.

Meanwhile, on April 17, USCIS announced that it received 199,000 H-1B petitions during the filing period, a decrease of more than 15 percent from the 236,000 petitions received last year. In this atmosphere of uncertainty, it is not surprising that employers are reluctant to file cases on behalf of needed employees for fear that their cases will be denied or that later they will face penalties from an aggressive agency looking to find abuse. Those employers who filed H-1B cases this year can expect to start to receive receipt notices for cases randomly selected in the lottery. Rejected cases will be returned later in the spring.

H-4 Work Authorization Under Scrutiny; Delayed Processing Anticipated for H-4 Extensions

In 2015, the DHS promulgated rules that permitted spouses of certain H-1B visa holders to receive work authorization. Under the current rules, an H-4 spouse could apply for work authorization if his or her H-1B spouse had an approved I-140 but was still awaiting visa availability.

In the wake of the new rule, a lawsuit was filed in federal district court against DHS by tech-industry workers charging that H-4 work authorization unfairly added additional competition in the workforce against U.S. citizens and residents. The district court disagreed with the workers and upheld the rule, but the case is now on appeal with the DC Circuit. DHS recently requested time from the court to consider changes to the rule. While any change or even revocation of the H-4 work authorization rule by DHS would have to undergo public notice and comment, the recent agency request makes clear that DHS is re-thinking the rule and H-4 spouses need to be prepared that their work authorization may come to an end. The court of appeals is expected to hear the case in October 2017.

Meanwhile, USCIS announced that certain dependent H-4 extensions would not be adjudicated within 15 calendar dates along with a premium processed H-1B extension request. Specifically, USCIS advised that if a principal filed a premium processed H-1B extension at the Nebraska Service Center, his or her spouse’s H-4 extension and work authorization application would not be adjudicated at the same time as the H-1B extension. It is likely that there will be a one- to three-week gap between adjudication of the H-1B and the adjudication of the H-4 extension and EAD card. H-4 spouses who had not received notices by the end of April are advised to follow up with USCIS about the status of the case.

Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email dilip.patel@bipc.com

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