One key priority of the Trump administration is to limit immigration, in part through enacting visa reform, in order to increase enforcement and encourage policies that benefit US workers. Consequently, early in April 2017 the US Citizenship and Immigration Services (USCIS)(1) the US Department of Labour (DOL),(2) and the US Department of Justice (DOJ)(3) announced plans for better inter-agency coordination regarding H-1B visa fraud and abuse and to review the H-1B programme in more detail.
On April 18 2017 President Trump released an executive order entitled "Buy American and Hire American"(4) in which the secretary of state, the attorney general, the secretary of labour and the secretary of homeland security were prompted to suggest reforms and propose new laws to ensure H-1B visas are awarded to the most skilled or highest paid beneficiaries. In line with these developments, USCIS(5) and the DOL(6) have published reports detailing the existing H-1B trends.
The vast majority of H-1B petitions filed in 2017 (247,927 out of the 336,107 or 74%) were for beneficiaries born in India. Although second, China was significantly below India with 36,362 filed petitions. The Philippines, which ranked third with 3,161 filed petitions, demonstrated a large gap below India and China. All other top filing countries had petition volumes of between 1,000 and 3,000.
Over the past 10 years, the vast majority of H-1B filings have been for computer and IT-related positions, such as computer systems analysts (22.1% of positions certified by the DOL), application software developers (15.8%) and computer programmers (9.5%).
In its recent policy memo entitled "Rescission of the December 22, 2000 'Guidance memo on H-1B Computer Related Positions'", USCIS indicated that based on the definition of 'computer programmer' in the DOL's Bureau of Labour Statistics Occupational Outlook Handbook (OOH), it has concluded that most computer programmer positions would not qualify for H-1B visas, as many such positions do not require a bachelor's degree or higher. Therefore, computer programmer positions may not rise to the level of a specialty occupation as required by H-1B visa regulations.(7) The memo also stated that other positions which fall into OOH classifications which generally, but not always, require a four-year bachelor's degree may draw additional inspection for meeting H-1B specialty occupation standards.
Given the high demand for technology positions, companies will likely continue to sponsor a large number of foreign workers for computer-related positions under the H-1B category. However, it is likely that companies will shift away from computer systems analysts and computer programmer positions which will likely face a higher level of scrutiny from USCIS.
The USCIS report found that the majority of 2017 petitions (105,827 out of 336,107) were filed with a beneficiary compensation level between $50,000 and $74,999. The next largest group (99,326) had levels between $75,000 and $99,000, while the third group (59,988) had levels between $100,000 and $124,999.
At present, an H-1B beneficiary is exempt from additional special attestations that apply to H-1B dependent employers if they receive an annual wage of $60,000 or higher or have a master's degree or higher. In January 2017 Representative Darrell Issa introduced a bill that would eliminate this exemption and require any company paying an H-1B worker less than $100,000 to show that they could not hire an US worker for the same job.(8) Moreover, Issa's bill was followed by others, including one by Representative Zoe Lofgren that would set the H-1B minimum salary cap even higher.(9) While none of these bills have been enacted into law, it is likely that the minimum salary cap for H-1B positions will increase in the foreseeable future.
Further, the same USCIS memo pertaining to the computer programmer classification also concluded that a Level 1 (entry level) designation may not qualify as a specialty occupation position. Level 1 wage rates are assigned to job offers for entry-level employees who have only a basic understanding of the role and perform tasks that:
- require limited, if any, exercise of judgement; and
- provide experience and familiarisation with the employer's methods, practices and programmes.(10)
As companies shift away from utilising the Level 1 wage, compensation trends will rise for H-1B beneficiaries.
According to the USCIS 2017 report, nearly the same percentage of H-1B petitions were filed for beneficiaries with a bachelor's degree or foreign equivalent and those with a master's degree or foreign equivalent. This may dispel some criticism that companies did not file H-1B petitions to obtain the "best and brightest". Since the H-1B programme annually reserves 20,000 places for beneficiaries with master's degrees (or their foreign equivalent), companies may be filing more petitions for beneficiaries with that qualification in order to increase their chances of approval (as the pool for bachelor's level beneficiaries has historically been much higher, while the 65,000 H-1B pool has remained constant, with a few exceptions, since the Immigration Act 1990). On the other hand, companies increasingly realise the importance of petitioning for only their most qualified personnel, especially in light of accusations that cheaper foreign workers have been replacing perfectly capable but pricier US workers. Consequently, a steady growth in the number of master's-level beneficiaries is likely, as companies are increasingly required to substantiate their beneficiary's qualifications over comparable US-based workers.
USCIS has also tracked the age of H-1B beneficiaries. Over the past decade, over half of the beneficiaries have been between 25 and 34 years old. Studies have shown that an increase in younger foreign-born beneficiaries has significant national economic benefits. The Organisation for Economic Cooperation and Development issued a report that younger immigrants tend to be better educated, have a greater supply of skills and abilities and consequently contribute more to a nation's economy through taxes and other contributions.(11) Moreover, as other studies have shown, with the increasing numbers of retirees, US economic growth depends on US-based employers' continuing to attract – and retain – skilled young workers.(12)
Although there have been no substantive changes in the law regarding the H-1B visas at present, the vociferous rhetoric demanding visa reform, the introduction of congressional bills sharply increasing minimum salary caps and USCIS's announcement of greater scrutiny of H-1B petitions demonstrate that there is clearly momentum towards significant revisions of this visa category.
In light of this, companies will likely shift increasingly towards beneficiaries with higher educational levels and jobs that pay Level 2 wages or higher.(13) Moreover, government agency announcements indicate that more scrutiny of all H-1B petitions, irrespective of beneficiary education level or wage level, is likely. As such, there is an expected increase in companies receiving requests for evidence on H-1B petitions. Consequently, all H-1B petitioning employers should prepare for these changes by offering a minimum of Level 2 wages for all prospective beneficiaries, by selecting beneficiaries with higher educational attainments and anticipating additional scrutiny.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
For further information on this topic please contact Rami D Fakhoury or Melissa B Winkler at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email ([email protected] or [email protected]). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.