Timed to coincide with the date when thousands upon thousands of H-1B petitions, subject to the quota cap limitation are filed with Service Centers of United States Citizenship and Immigration Services, various government entities, talking tough, made announcements describing changes in how H-1B petitions would be handled.
USCIS posted a notice “Combating Fraud and Abuse of the H-1B Visa Program” instructing the public on what to look for as “H-1B Fraud and Abuse Indicators” and how to report suspected H-1B fraud or abuse. Examples of fraud listed were H-1B worker not being paid the wage certified and disparities between the working conditions and wages of H-1B workers and other workers.
The Justice Department issued a release cautioning “employers seeking H-1B visas not to discriminate against U.S. workers” or its Civil Rights Division unit Immigrant and Employee Rights (IER) would be ready to enforce and penalize any violations.
USCIS advised that it would adjust its site visit program to target types of businesses and employment scenarios more likely to generate abuse of the system.
The US Department of Labor announced that it would “rigorously use all of its existing authority to initiate investigations of H-1B program violators,” “consider changes to the Labor Condition Application for future application cycles” and engage stakeholders in a discussion of possible future improvements.
Perhaps, most significant, especially for all those thousands of H-1B petitions just filed this past Monday, on April 3, is a Policy Memorandum published March 31, and distributed over the weekend and on Monday, April 3rd, after all of those H-1 Cap petitions were already on their way to the Service Centers for processing.
Ostensibly rescinding a 2000 Memorandum that nobody remembered, this Policy Memorandum entitled Rescission of the December 22, 2000 “Guidance Memo on H-1B Computer-Related Position” announced that since one might work as an entry level computer programmer without a four-year degree, an entry-level computer programmer position would not generally qualify as a position in a specialty occupation eligible for H-1B classification, and a petitioner must provide other evidence to establish that the particular position is one in a specialty occupation.
This announcement made after all of this year’s H-1 Cap petitions were already filed signals the likelihood that there will be challenges and requests for evidence issued for petitions filed for entry level computer programmers.
Implicit in this Memo was the possibility that other entry level H-1B petitions in different professional areas might be challenged.
So, putting together all of these initiatives, do we see a major change or restructuring in the H-1B program? Absolutely not!
The regulations and the structure of the H-1B program remain the same. The criteria for approval remain the same. And of course, the statutory underpinning of the H-1B program remains the same.
What we do see is, that the Department of Homeland Security, the Department of Labor, and the Department of Justice are signaling that initiatives that are already in place, will be pursued and pursued more aggressively.
It has been the case for some time that the Immigrant and Employee Rights Section of the Department of Justice pursues cases of discrimination against United States workers, and it has also been the case that you could report fraud and abuse of the H-1B program to USCIS. Even the attack on entry level computer programmer positions is not new, as it has already been the case for the last several years, that such petitions were not automatically approved.
At the end of the day, the only tangible change, which is strictly internal, is the refocusing of site visit resources to target areas of potential abuse.
The message is, that there is a new sheriff in town and this sheriff is tough, and even if the changes are not very substantial, the message has been delivered, and I think it is safe to say that employers have noticed, and it may have a significant impact on their behavior.
There is a certain irony to the fact that the announcement is made just when all these H-1 cap petitions are being filed, as it is too late in the game to make any changes to modify the behavior of employers at least for this year. But, looking forward, it is certainly the best time to generate these initiatives if your objective is to be noticed and to deliver a message when everybody is thinking about, looking at, and talking about H-1 petitions.