On Saturday November 7, 2020 Joe Biden and Kamala Harris became the 46th president elect and vice-president elect of the U.S. In the past 4 years President Trump’s administration has made a series of drastic changes to immigration policy through Executive Orders, changes to internal policy memos & procedures and regulatory reform. This blog post will analyze certain changes and challenges in the past 4 years with regards to H-1B visa.
The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations. This visa category requires that the beneficiary (the foreign worker) have a bachelor’s degree (or equivalent), and the petitioner (the U.S. company) can employ the worker for up to six years.
Buy American, Hire American Executive Order
In 2017, president Trump signed the Buy American, Hire American Executive (“BAHA”) Executive order. This Executive order sought to create higher wages and employment rates for U.S. workers and specifically asked different government agencies to suggest reforms to ensure that H-1B visa are awarded only to the most-skilled or highest paid petition beneficiaries.
Through different policy memoranda and USCIS operation changes, USCIS has been implementing the BAHA executive order since 2017.
Please see some changes USCIS implemented during the Trump administration below:
USCIS officers have been applying the same level of scrutiny to both initial and extension H-1B applications.
In 2017, USCIS rescinded its previous guidance regarding deference to prior determinations of eligibility in the Adjudication of Petitions for Extension of Non-immigrant status. Prior to 2017, if the extension petition involved the same parties and the same underlying facts, USCIS deferred to the prior determination of eligibility. In 2017, this changed and USCIS emphasized that the burden of proof to establish that H-1B employee continues to be eligible for the H-1B status lays on the petitioner (H-1B employer).
You were selected in the H-1B lottery and received you initial H-1B status in 2015. In 2018, you were working for the same employer and on the same position. Under the new guidance, USCIS would apply the same level of scrutiny for the extension application as it would for the initial application and would defer to the prior determination that you qualified for the H-1B visa. The H-1B employer would still have to prove that you qualify for the H-1B visa, meaning that the process and the requirements you had to prove were basically the same as if you were applying for the initial H-1B visa.
Requests for Evidence (“RFE”) have become much more common
In 2016, the H-1B approval rate was 93.9% and RFE was issued in 20.8% cases.
In 2017, the H-1B approval rate was 82.6% and 7RFE was issued in 21.4% cases.
In 2018, the H-1B approval rate was 84.5% and RFE was issued in 38% of cases.
In 2019, the H-1B approval rate was 84.9% and RFE was issued in 40.2% cases.
In 2020, the H-1B approval rate was 88.6% and RFE was issued in 34.8% cases.
We can see that between years 2016 and 2019, the RFE rate almost doubled.
What were the most frequent reasons for the RFE?
- The most common reason for the Request for Evidence was that USCIS was arguing that the H-1B occupation is not a Specialty Occupation: Specialty occupation requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree (or its equivalents) as a minimum entry into the occupation in the U.S. The RFE would also often state that because the employer is paying the H-1B employee a Level 1 (ore Level 2) wage, such position cannot be a Specialty Occupation.
- USCIS was arguing that the H-1B employer did not establish that it had a valid employer-employee relationship with the beneficiary (by having the right to control the beneficiary’s work, which may include the ability to hire, fire, or supervise the beneficiary, for the duration of the requested validity period),
- The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition
- The petitioner did not establish that the beneficiary was qualified to perform services in a specialty occupation
New DHS Regulation that will take become effective on December 7, 2020 & New Department of Labor Regulation
On October 8, 2020, the Department of Homeland Security (DHS) published a regulation meant to restrict who is eligible for an H-1B and add obligations for H-1B employers. The regulation is planned to take effect 60 days after the initial publication, meaning it will take effect on December 7, 2020. DHS has argued that it is justified in fast-tracking this regulation due to COVID.
Some of the key changes in this new regulation are:
- DHS is amending the regulatory definition of “Specialty Occupation” so it requires a direct relationship between the H-1B employee’s educational degree and the job duties (e.g. general degrees without further specialization or an explanation as to what type of degree is required for the particular position would not meet the definition of Specialty Occupation).
- When demonstrating that the H-1B position is a specialty occupation, one of the ways how to demonstrate is to show that that a Bachelor’s degree is always required (the current version of the regulation indicates that a Bachelor’s degree be normally required, or is common to the industry, or that the knowledge required for the position is usually associated with at least Bachelor’s degree or equivalent).
- Clarified the definition of “U.S. employer” and “employee-employer relationship”
- Set the maximum validity period for third-party placements to 3 years
On the same day, the Department of Labor published a regulation that took immediate effect which drastically altered the way that prevailing wages are calculated for the H-1B program. The public was not given an opportunity to comment on this rule before it took effect. The new rule increased the OES prevailing wages for all occupations.
In June 2020, President Trump issued a Presidential proclamation that suspends entry of aliens who present a risk to U.S. labor market
In June 2020, President Trump issued a proclamation that suspended entry to the U.S. to H-1B visa applicants who were
- Outside the U.S. as of June 24, 2020;
- Did not have a valid non-immigrant visa as of June 24, 2020;
- Did not have an official travel document that is valid as of June 24 (or issued after June 24, 2020 and the document permits the person to enter the U.S.).
This proclamation is currently still in effect and is set to expire on December 31, 2020. Please see our blog post on whether the new Biden/Harris administration will terminate this proclamation that is currently still in effect when you click here.
What will change with the new administration? Will it be easier to get an H-B visa?
As you can see, the current administration though the Department of Homeland Security and the Department of Labor proposed some new rules with regards to H-1B visa just recently. The new DHS regulation and DOL regulation are currently being challenged through litigation and there are pending court cases challenging these new rules. The new government could perhaps decide not to defend the legality of these rules, but at this point it’s hard to predict what exactly will happen.
We think that the H-1B approval rate may go higher and the RFE rate may go lower with the new administration. We think that the BAHA may remain in effect in some form though and the new administration may not terminate the BAHA Executive order entirely, but perhaps update the internal USCIS/Consular guidelines on how to enforce it.
Please see our blog posts on the new Biden/Harris administration and their immigration law changes here:
You can find out more about the significant immigration changes likely to occur under the Biden/Harris administration by clicking here to access our Biden/Harris Immigration resource page.
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