2018 Employment-Based Immigration Overview and Likely Impacts on U.S. Businesses

A series of articles nicely describes the current state of the employment-based immigration environment in the U.S., the outlook for 2018, and responses from U.S. high tech businesses and employees.

First, requests for additional evidence and denials of H-1B Petition are at an all-time high. In fact, the CIS denied more than twice as many H-1B petitions in November 2017 compared to the same time last year. Second, Bloomberg summarizes expected trends in employment-based immigration in 2018, including increased enforcement and increased scrutiny of all immigrant and nonimmigrant petitions filed by U.S. employers. Finally, U.S. tech companies are increasingly looking to Canada as a base of operations due to Canada’s more welcoming and more easily navigable employment-based immigration system. 

Timothy R. Bakken
Founder

Inefficient and Wrong-Headed Work Visa Crackdown

This article describes what I am seeing in my direct experience in the world of U.S. business immigration. The CIS is issuing excessive requests for additional evidence even where an applicant is seeking an extension of an existing status with no changes in the underlying job duties, job location, or conditions of employment. Granted, the law properly requires petitioning companies and applicants to establish eligibility for the requested status. But, the current administration has issued guidelines that encourage CIS officers to demand more and more evidence of obvious facts (and give more leeway to deny petitions). One particularly egregious and comical example from my own practice: The CIS asked my client, a huge, well-known airline, to prove it was an existing business as part of its H-1B petition for a financial analyst. The petition was approved but only after unnecessary expense and time spent proving facts that are common knowledge to any living, breathing person. These new interpretations of existing law and regulations are inefficient and wasteful and contradict any professed goal of streamlining government bureaucracy. And, to be clear, I wholeheartedly support a crackdown on unscrupulous companies that abuse the H-1B program or any visa program. The current administration’s new rules and unreasonable interpretations of existing laws and regulations do not effectively address visa fraud because they treat law-abiding companies with long histories of closely following immigration law the same as companies that abuse the system.

Timothy R. Bakken
Founder

A reminder of the reality of H-1B visas.

Contrary to some reports, the H-1B visa program does not punish U.S. workers or unfairly benefit foreign workers.  My clients include companies with employees holding H-1B visas alongside a far-majority of those companies’ workforces who are U.S. citizens.  U.S. companies using the H-1B visa program properly do so by hiring highly educated, highly skilled, and very well-paid H-1B employees who fill very specific needs for the companies and their customers.  

As explained in this letter to the editor in the Washington Post, we should not punish innovative and successful U.S. companies who are committed to following our immigration laws simply because an extremely small number of businesses use the H-1B program improperly. 

Read the full Washington Post article "The H-1B visa program is not 'much abused'" here.  

Timothy R. Bakken

USCIS Reaches FY 2015 H-1B Cap

USCIS: U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015.  USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.   

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing. 

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

By USCIS, 7. April 2014.

SEE ALSO: 
Immigration lottery limits U.S. employers.
The H-1B programs impact on wages jobs and the economy.
Tech flips the script on immigration foes.
How immigration reform - or lack thereof - is hurting our economic competitiveness.
 

USCIS to Accept H-1B Petitions for Fiscal Year 2015 Beginning April 1, 2014

BAKKEN LAW: Today the USCIS issued a press release projecting it will receive enough H-1B petitions to reach both the “normal” H-1B annual cap and the U.S. Master’s Degree annual cap by April 7, 2014. 

The first date USCIS will accept H-1B petitions for both caps is Tuesday, April 1, 2014 and USCIS states that it is “prepared” to use a random lottery to select H-1B petitions for adjudication, though it does not exactly state the parameters of a random lottery; in past years, the USCIS has considered petitions filed in the first 5 days of the annual cap filing period as timely filed for purposes of inclusion in the random lottery. In addition, USCIS is temporarily delaying the premium processing rules due to an expected high number of H-1B petitions being filed with a request for premium processing.  Specifically, USCIS will begin premium processing of cap-subject H-1B petitions “no later than April 28, 2014”.  

Stay tuned for more details!

Timothy R. Bakken