We welcome 2019 with the anticipation of yet another H-1B lottery filing season, this one filled with some major changes. Traditionally, the H-1B visa category has been utilized by U.S. companies to hire international talent and it is unlikely that will change given the low unemployment rate in United States and the desire of U.S. corporations to remain competitive in the global workplace.
This year, the H-1B cap-subject filing period commences on Monday, April 1 and will run for the first five business days of April, assuming the H-1B cap of 85,000 petitions is reached during this period. U.S. Citizenship and Immigration Services (USCIS) has recently had new surprises in store for the immigration practitioner and U.S. companies filings for H-1B cap-subject visa petitions.
What is new this year?
Until this past year, it was unusual to receive challenges from the government concerning H-1B petitions where the education of the foreign national related to the job offered by the U.S. employer. These challenges, known as requests for evidence (RFE) and subsequent denials of H-1B petitions were more the exception than the rule. Now, it is much more common for USCIS to issue a lengthy, demanding and detailed RFE with the increased likelihood of a denial.
What issues might cause USCIS to issue an RFE? It has become the norm for USCIS to challenge H-1B petitions based upon the following scenarios:
- Definition of specialty occupation - the Immigration and Nationality Act requires that the foreign national possess at least a bachelor's degree in a 'specialty occupation' that is directly related to the prospective position. USCIS no longer accepts general descriptions of job duties and responsibilities without fully documenting the tasks to be performed, detailed description of duties and a direct connection between the prospective employee's field of academic study and the prospective position's actual duties and responsibilities. Further, USCIS has routinely challenged the employer's requirements when the degree requirement stated by the U.S. employer is a general one (i.e. business or engineering) or unrelated to the position offered;
- Employer-employee relationship - USCIS will request documentation to be assured that the relationship between employer and employee is direct, meaning that the employer has the right to control the H-1B worker's daily work schedule and product. 'Control' also includes the ability to directly hire, fire and supervise the potential worker. For the past decade or so, this type of challenge arose in the third-party placement context, such as computer industry third-party placements, but now it is a common challenge to assure a direct employer-employee relationship;
- Availability of H-1B work - USCIS has challenged H-1B filings and has requested that employers document that there is an ample amount of specialty occupation work that needs to be performed during the period of employment requested. This RFE is unusual as the agency has never before requested this information in instances where the foreign national employee will work on premises for the U.S. employer directly; and
- Wage Survey - H-1B regulations mandate that the employee must be compensated at the prevailing wage or the actual wage - whichever is higher. In the past, independent wage surveys have been utilized and accepted by USCIS, but most recently, USCIS has challenged the use of wage surveys, requesting additional proof that the occupation listed in the survey provided is comparable to the duties of the position offered.
New Proposed Rule - Electronic Pre-Registration
On December 3, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking changing how employers would file cap-subject H-1B petitions and how the H-1B lottery process would work going forward, as discussed in our recent alert, and a 30-day comment period ensued. However, a tweet issued by DHS later that evening, and subsequent to the issuance of the rule, indicated that the new electronic registration process would not likely be implemented in a timely manner and it reserved the right to implement the registration by the following H-1B cap filing season in April 2020. The proposed rule would change how employers file H-1B cap subject petitions and how the lottery process would be conducted.
U.S. petitioning companies would first file for H-1B cap petition through an electronic registration process during a designated registration period, furnishing basic information concerning the company and the proposed foreign worker. If selected, the employer would then file the full H-1B submission. The proposed rule also reverses the H-1B selection process. USCIS indicated that it was favoring the 'master's cap' filings - that is, foreign nationals in possession of U.S. master's degrees from U.S. educational institutions.
Given that it is unlikely that USCIS will implement the new regulations and the registration process by April 2019, it is advisable for U.S. petitioning employers to prepare their H-1B submissions as they have in the past with the usual preparation process.
H-1B first-time sponsorship is generally available to:
- F-1 students currently working on Optional Practical Training (OPT) who require changes of status to H-1B;
- Highly sought-after professionals currently located outside the United States who are seeking professional employment for the first time;
- Foreign nationals inside the United States who currently hold other nonimmigrant status and will 'max out' (i.e. L-1A or L-1B nonimmigrants);
- Foreign nationals with H-1B status who are currently working in the United States for a cap-exempt organization (not-for-profit or educational institution) and who require a cap-subject H-1B visa to work for a private, for-profit company; and
- The North American Free Trade Agreement (TN NAFTA) visa holders (now the United States-Mexico-Canada Agreement) who might wish to transition to H-1B visa status for more long-term possibilities of stay and employment in the United States.
Accordingly, if you or your company are considering the sponsorship of a foreign national for an H-1B in 2019, advance preparation has become crucial to be ready for the upcoming filing period. A careful review of the prospective applicant's qualifications and the position offered by the U.S. petitioning company is important to assure that the H-1B filing is approved by USCIS.