The H-1B visa program has been one of the most successful programs in U.S. immigration history, allowing for U.S. entities to hire and place highly skilled workers, holding at least a bachelors’ degree or the equivalent, into specialty occupation positions with their companies. However, the rigid cap of 85,000 new annual H-1B visas (which includes a carve out of 20,000 new H-1B visas available to workers with U.S. Masters degrees) remains at levels established in the 1990’s. As the economy has remained healthy, demand for H-1B visas this year was almost triple this insufficient quota. At current levels, this clearly signals inevitable disappointment for a significant number of applicants attempting to secure a visa under the program. What options do both employers and potential employees have?
Further, USCIS recently released final guidance on a decision requiring new H-1B petitions for workers who change job sites. The new decision outlines potential punishments for employers who do not amend petitions based on old or prior moves, forcing attorneys to weigh these increased costs to employers against the risk of agency action. When faced with these necessary yet unbudgeted amendments, many employers are finding this decision as an expensive requirement. This has led to questions arising as to who is responsible for payment of the legal and filing fees associated with the process. The answers provide much confusion stemming from a lack of, and conflicting, regulations.
In addition, the number of civil and criminal actions for failure to comply with immigration requirements is at an all-time high. In this time of greater enforcement of immigration compliance laws, it is especially important that employers take prudent steps to make sure they are complying with the law’s requirements. Developing a Corporate Immigration Policy internally is becoming necessary, if not commonplace, as is employee training to ensure an ongoing understanding of compliance-related issues, such as the retention requirements of immigration documentation.