Upcoming Changes On H-1B Visas In 2020
H-1B is often the ticket to immigration for international students, and or high skilled foreign nationals educated abroad who don’t have the closest family members living in the USA. It use to be an opportunity for employers to attract high skill foreign talent to fulfill their employee demand.
According to the National Foundation For American Policy:
“Between FY 2015 and FY 2018 and FY 2019, the denial rate for new H-1B petitions for initial employment quadrupled from 6% to 24%. To put this in perspective, between FY 2010 and FY 2015, the denial rate for “initial” H-1B petitions never exceeded 8%, while today the rate is 3 times higher. This analysis of H-1B data is an update to an April 2019 NFAP report and August 2019 study on H-1B denial rates. The analysis is based on data from USCIS H-1B Employer Data Hub”.
The goal of the present administration is to it more make it more difficult for well-educated foreign nationals to work in America in science and engineering fields.
According to Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania:
“Restrictive H-1B policies could not only be exporting more jobs and businesses to countries like Canada, but they also could be making the U.S.’s innovative capacity fall behind.” In response to being unable to hire high-skilled foreign nationals, U.S. companies increase their hiring overseas, which causes more innovation by foreign nationals to take place in other countries, benefiting those nation
s. In sum, H-1B visa restrictions, such as the type now being implemented by the administration, push jobs outside the United States and lead to less innovation in America”.
There is a Possibility of Three Major Changes:
- First, U.S. Citizenship and Immigration Services (USCIS) has announced it will implement an electronic registration for “petitioners seeking to file H-1B cap-subject petitions.” A $10 fee will be charged for each registration
- The second development in 2020 is the potential impact of new H-1B regulation. USCIS plans to publish a rule that would “revise the definition of specialty occupation”
- The second part of this regulation is to revise the definition of employment and employer-employee relationship
- A third, ongoing development for H-1B visas is litigation
The timelines of electronic registration have already been published. More details about the requirements of electronic registration could be found here.
Summary of a Few Concerns Shared by Various Law Partners Across the Country:
- The new H-1B registration system might dramatically increase initial applications
- Smaller employers can be more inconvenienced due to uncertainly or untested nature of the process
- USCIS has not been entirely clear about the post-selection process or timing, that will add uncertainty and time pressure to employers and attorneys
- Worst scenario will be technical snag between the date range, or the system does not work as intended
- There is also a potential problem for the Department of Labor, which could experience a spike in Labor Condition Application(LCA)
The second development in 2020 is the potential impact of new H-1B regulation. USCIS plans to publish a rule that would “revise the definition of a specialty occupation.
According to Lynden Melmed, a partner at Berry Appleman & Leiden and former Chief Counsel for USCIS:
“Undoubtedly they will push the boundaries and aim for long-term, structural changes to the H-1B visa category,”
- It is likely to result in a court injunction if the agency goes too far.
- USCIS may place into regulation the theory behind a March 31, 2017, internal document now used in adjudications that It excludes computer programmers from qualifying as a specialty occupation
What Does That Mean?
- That means adjudicators could deny a position qualifies as a specialty occupation “where the [DOL] Occupational Outlook Handbook does not specify that the minimum requirement for a particular position is normally a bachelor’s or higher degree in a specific specialty,”
- This could introduce even more uncertainty into the adjudications process.
- The second part of the regulation – revising the definition of employment and employer-employee” – could also present problems for many companies and their customers
- Information technology (IT) services companies and other businesses that place employees at customer locations
- IT companies already experienced much higher H-1B denial rates than other companies
- USCIS will likely attempt to “lock-in” its current practices through a regulation
Few Noteworthy Litigations and Their Implications:
- Arguments in the ITServe Alliance v. Cissna lawsuit were heard in the U.S. District Court for the District of Columbia in May 2019.
- That case addresses a host of issues employers consider at the heart of USCIS policies
- The judge has issued no rulings since that court hearing
- One recent litigation development is that Wasden Banias LLC, the law firm involved in the ITServe Alliance case, filed a similar lawsuit in Dallas – involving denials of 30 H-1B petitions
- The government opted to reopen and approve the petitions (or send Requests for Evidence) rather than have the issues in the case heard in court
- The case involved two main issues: the employer-employee relationship and the Non-Speculative Work Rule memo, which relates to USCIS demanding companies provide a list of all work assignments an H-1B visa holder will have up to three years in the future
What Could be a Future Trend for Employment-based Immigration?
Expect more companies and attorneys to use litigation in 2020
Please Note: Unlike other types of litigation in the federal system, the courts do not release documents or details about immigration-related cases, which makes it difficult to determine how many cases are filed on a particular issue. We will keep you posted about the details of recent developments once it becomes public to keep you informed about immigration trends in employment.