COMMENT

Introduction

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, USCIS5 and the DOL6

have published reports detailing the existing H-1B trends.

USCIS and DOL reports on H-1B petition filings

Birth country

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.

Occupations

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.

Compensation trends

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.

Degree trends

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.

Other trends

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

Comment

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.

Footnotes

(1)

www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse.

(2)

www.dol.gov/newsroom/releases/eta/eta20170404-0.

(3)

www.justice.gov/opa/pr/justice-department-cautions-employers-seeking-h-1b-visas-not-discriminate-against-us-workers.

(4)

www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american.

(5)

www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/BAHA/h-1b-2007-2017-trend-tables.pdf.

(6)

www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2017/H-1B_Selected_Statistics_FY2017_Q1.pdf.

(7)

www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-17197/0-0-0-18003.html.

(8)

https://issa.house.gov/news-room/press-releases/issa-introduces-bill-stop-outsourcing-american-jobs.

(9)

https://lofgren.house.gov/uploadedfiles/high_skilled_bill_sxs_and_analysis_-1-2017__final.pdf.

(10)

www.flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf.

(11)

www.oecd.org/migration/OECD%20Migration%20Policy%20Debates%20Numero%202.pdf.

(12)

https://fivethirtyeight.com/features/immigrants-are-keeping-america-young-and-the-economy-growing/.

(13)

www.congress.gov/bill/115th-congress/senate-bill/180.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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