The rhetoric from the Biden team has been of tolerance and reconciliation, so there is reason to believe there is good news for immigrants and visa-holders.  That said, the US is not exempt from the heightened security and rising anti-immigrant sentiment around the world, and not everyone is in favor of loosening restrictions put in place over the past four years.

This article looks at some of the specific policy changes under Trump and how those have affected US employers.  In order to determine whether the Trump-era policies have had a positive or negative impact on the US economy, a recent nationwide survey asked employers about their experiences and how they have responded to the changes.

It is important to understand the differences between immigration laws and immigration policies/procedures.  The actual laws are very hard to change because they have to go through Congress.

The Trump Administration, like all other administrations, did not accomplish much in terms of changing the existing statutes.  That, however, certainly does not mean that nothing has changed.

As we have all seen, while presidents cannot unilaterally change immigration laws, they can implement new policies and procedures.  These policies/procedures have a very direct and immediate impact on companies and individuals.

At the end of 2020, a survey of 215 US employers was conducted[1] to gauge how Trump’s policies have affected their companies, as well as their feelings about the expected immigration reforms under Biden.

The survey indicates the 400+ policies and rules put in place between 2017 and 2020 have caused delays and increased costs for employers.  Further, business owners claimed that these policy changes directly led to an increase in offshoring and outsourcing, with only a slight increase in domestic hiring.  From a purely economic perspective, it does make sense that employers would sooner outsource work to cheaper foreign markets than increase expenses by hiring domestic employees.

If these survey results are representative, then the Trump policies intended to increase the hiring of local workers actually had the exact opposite effect.

Between the Pandemic and the Trump regulations, the pipeline for foreign talent was all but closed off entirely.  Between January and April 2020, the number of visas issued to foreign nationals declined by 93.2%. According to the employers surveyed:

Green Cards

36% said there are too few green cards available each year

39% said the number was just right

18% said there are too many

Visas

41% said there were too few employment-based visas available

37% said the amount is correct

17% said there are too many

These results align with current data on the STEM skills gap in the US work force.  Despite the economic downturn due to the COVID-19 pandemic, the December 2020[2] unemployment rates for computer science and mathematical jobs was just 3.0%, which is essentially the same as it was before the pandemic’s onset in March 2020.

Meanwhile, the general unemployment rate peaked at 14.4% in April and stabilized at 6.5% in December 2020.[3]

Specific Trump Policies

In April 2017, the Trump Administration issued the “Buy American, Hire American” executive order, which promised to protect American workers by restricting immigration. The USCIS, DHS and DOL put in place a number of new policies, rules and regulations meant to carry out the purposes of the executive order.

Requests For Evidence

A Request for Evidence, or “RFE,” is issued by the USCIS when they want an applicant to submit additional information.  RFEs always slow down the visa process and are generally considered to be a “bad sign” since the application is undergoing scrutiny.

Between 2017 and 2019, the issuance rate for RFEs rose from 21% to 40.2%. The survey respondents indicate the following:

Public Charge Rule

One heavily litigated policy change was the Public Charge Rule, which was first implemented in February 2020.  This Rule requires employers filing green card petitions for their foreign workers to demonstrate the worker has not and will not rely on any government benefits such as Medicare, food stamps or housing vouchers.

The responses were as follows:

Previously Approved Visas

Also, in 2017, the USCIS changed a long-standing policy of not questioning previously approved applications when evaluating extension requests or new visa petitions.  Under Trump, however, whenever a worker requests an extension of a current visa, or files a petition for a new visa, the examining officers can go back and question whether the initial petition should have been approved to begin with.

Making previously approved petitions fair game for reversal has a strong chilling effect on workers requesting extension or permanent residence.  As a result, employers lose skilled workers. 

Restrictions on Length of Stay

The same year, the USCIS also began requiring detailed itineraries from employers and restricting the duration of visas.  The survey respondents said:

In response to the shorter durations, 35% of the surveyed employers said they began looking at alternative sponsorship options.  More importantly, 37% said they simply decided to fill these jobs by outsourcing offshore.

Consulate Closures

In March 2020, we saw many U.S. Embassies and Consulates close or restrict hours of operations.  The survey respondents comments on how such closures affected their organizations.

Student Visas

Trump’s temporary ban on J-1 visas and F-1 visas for students who could not attend in-person classes had immediate consequences for employers who hire from those pools.  It seems likely the policy will also disrupt talent acquisition in future as well, especially in STEM fields.  Respondents had this to say.

H-1B Visa Restrictions

In November 2020, the White House released two new rules placing restrictions on H-1B visas. First, the DHS narrowed the definition of a “specialty occupation” and made stricter degree requirements.  Second, the DOL raised the required wages for sponsored roles. A district court struck down both rules in early December, so there may be additional litigation to come unless the Biden Administration changes course on this.

Just the same, the issue is of some concern to the respondents, who said this.

Increased Wage Requirements

Although new wage requirements are supposedly meant to ensure employers were less likely to hire foreigners for jobs that a U.S. worker could do, survey respondents indicate this:

HLA’s Immigration Practice

The Future

Employers surveyed largely indicated the Trump policy changes to the immigration system were disruptive and costly to their businesses. They did, however, express support for broader immigration reforms.  In particular, employers seem interested in making sponsorship easier and bringing more transparency to the immigration system.

Selection Process

Legislators and stakeholders have called for fundamental changes to employment-based immigration processes. For example, the DHS proposed a new selection process for H-1B visas that would give priority to petitions for higher-paid roles, as opposed to the random lottery currently in use. Respondents say such a change would be positive for their organizations.  However, some employers say such a change would make things very difficult for entry-level employees.

Points-Based System

The United Kingdom recently put in place a points-based immigration system, which promotes employment-based immigration.  Many, including the survey respondents, want to see the U.S. enact a similar model and do away with the current quota system.

To be fair, not all respondents saw the point-based system as being entirely positive.

The “Heartland” Visa

During the last Presidential Election, several candidates talked about setting up a location-based visa that would promote development in non-coastal or rural areas.  Joe Biden included this idea in his immigration platform, along with an expansion of current quotas for visas and green cards.  The survey respondents said this.

 Conclusion

Due to the Pandemic, unemployment rates are currently around 6.5% .  However, the unemployment rate is only 3.0% for math and science occupations.  Even without the Trump policies, there is a shortage of STEM talent in the US work force.  The last four years has forced employers to seek alternatives for filling their positions — which was, of course, the whole idea.

However, a significant percentage of affected employers have responded to the restrictive policies by outsourcing work to offshore locations, whether by hiring a foreign company or allowing a foreign employee to work remotely from outside the US.   It is virtually impossible to ascertain an exact number, but the result has likely been hundreds of thousands of high-skilled jobs moving away from the U.S.

It has been a dramatic four years in immigration, and the Biden presidency will surely bring about many new changes.  We anticipate the new policies will undo many, if not all, of the Trump changes.  The effects of the Biden polices remain to be seen, but we are hopeful they will ease restrictions currently in place and bring jobs back to the US.

~ Jeff Harrington, Esq.

[1] Envoy Global

[2] Bureau of Labor Statistics. “Labor Force Statistics From Current Population Survey” December 2020.

[3] Bureau of Labor Statistics. “Labor Force Statistics From Current Population Survey” April 2020.

Each of these common work visas has pros and cons, and each is used in a specific way to achieve specific goals.  Let’s look first at the H-1B program.

Review basic info published by USCIS

First of all, if you have not yet reviewed the website maintained by the United States Citizenship and Immigration Services (USCIS), you should.  The homepage is here: http://www.uscis.gov/ .  And, the page discussing H-1B visas is here.

The purpose of this article is not to repeat the basic facts readily available on the government’s website.  Rather, this article assumes you already have educated yourself on the basics.

What we want to do here is provide you with insights that come from years of experience processing work visas and give some analysis you will not find on the government’s website.

I. Purpose of H-1B

First of all, realize this visa program was never intended specifically to help international workers come to the United States.  That thinking is backwards.  The purpose of the visa is to help American employers access specialty workers outside the country.  From the point of view of the USCIS, you are not the one asking for the visa–it’s the US employer who is making the petition.

If you are reading this article, you are probably the worker who wants to come to the US.  Nonetheless, if you want to improve your chances of making that happen through the H-1B visa, you need to understand the way the program was designed.

With this insight you can arrange your circumstances–and work with your attorney–to best fit the criteria.

II. Con: H-1B Application Period 

Let’s start with some bad news.  If you are in a big hurry to get resident status in the US, H-1B may not be a good solution for you.  Applications cannot even be submitted until April 1 of each year.  Also, you cannot apply more than 6 months in advance of the start date your employer proposes.

So, for example, if your employer wants you to start working in December, then you would not be eligible to submit your application until some time in June.  That’s not good.

For reasons we are about to discuss, you really want to coordinate with your prospective employer before-hand and make sure you have a propsed starting date no later than October.

Theoretically, you could apply any time after April 1 but, the reality is, the cap will likely have already been reached by then.

III.  Con: H-1B Quota

More bad news.  This year, the cap was reached in six (6) days.

It is possible you could go through all the trouble and expense of getting together a beautiful H-1B petition . . . which will not even be looked at by the USCIS.

Unfortunately, there are only 85,000 H-1B visas available this year.  In fact, 20,000 of those are only for workers who have a masters degree (or equivalent), so there are actually only 65,000 visas available for most people.  That cap will be reached rather quickly.

There are some exceptions for certain islanders.  If you are from Signapore, Guam, or Commonwealth of the Northern Mariana Islands, there is good news.  Also, if you are from Chile, you get a break.  Check the USCIS website here for details about the cap: http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2015-cap-season  .

So, I know what you are thinking now.  If the USCIS closes the door as soon as the cap is reached, then you should be the first one in line to submit your application on April 1.  Well, that is probably not a bad idea, but there is another thing you should know.

More on Immigration

 IV. Pro: Random Selection

Once the quota for the year is exceeded, the USCIS will utilize a random selction process often referred to as the “lottery.”

They only do the lottery once, so you do want to be sure you have your petition in the stack before the cap is reached.  However, it is not exactly “first come, first serve.”

I suppose this is a “pro” inasmuch as you do not have to camp outside a USCIS office the night before April 1.  On the other hand, unfortunately, even if you are a very good candidate for an H-1B visa, you could be passed over as a matter of  bad luck.

Be aware, though, if your application is not randomly selected, it will be first in line for consideration for next year.  

Again, that is good news and bad news.    At least you did not entirely waste your time.  Your application will be considered . . . assuming the job offer still stands for next year and your circumstances do not change significantly.

However, it also means the applications not considered last year are going to be ahead of yours this year.  So, right, that means the cap is actually lower than it seems.  Sorry about that.

V. Conclusion

Let’s try to end this article on a positive note.  The H-1B program is hugely popular because it provides a cost-effective way to work legally in the United States.    You do not have to invest a lot of money setting up a business or buying into a venture.  All you need are certain in-demand skills and a job offer.  That is very attractive.

Next week, we will go into some of the characteristics of this visa.  Many of you will have more than one option for coming to the US.  The purpose of this article is to help you decide if the H-1B path is the right one for you.  Be sure to check out the upcoming articles on L-1, EB-3, and E-2 visas, so you can decide which is right for you.

~ Jeff Harrington

Your Employer

First of all, realize the H-1B visa must be petitioned (i) by  a particular employer, (ii) offering a particular job (iii) in a particular place.  If any one of these three things changes during the  process of petitioning for your initial H-1B visa, you are probably going to have problems.

So, you will want to be sure you are in solid with the company sponsoring the visa and that both you and your boss are very clear about the job you going to take.

Now, that is not the case once you are admitted as an H-1B employee.  At that point, changing from one employer to another is fairly common, and the process is straightforward, as long as you are working in the same or similar job capacity.

Your visa will be considered “portable” if you meet these three requirements:

(1) you were lawfully admitted;

(2) you have not worked without authorization; and,

(3) your new petition is timely and nonfrivilous.

The Job

Probably the most identifying feature of this visa is that it is intended for a “specialty occupation.”  So, what does that mean?

The job must require highly specialized knowledge and a bachelor’s degree or higher in a related field.

Let’s look more closely at this requirement.  To qualify as a specialty occupation, the position must meet one of the following:

1. A bachelor’s degree or higher in a specific field as an entry-level requirement.
2. The degree requirement is accepted industry-wide among similar companies or the particular position is so complex or unique that it requires someone with a degree.
3. The employer normally requires a degree or its equivalent for the job (look to other employees in the same position).
4. The complexity of the job duties is usually associated with a degree.

By way of illustration, here are some examples of fields typically deemed to meet the criteria:

Architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts.

Some common examples of job titles that qualify are:

librarians, psychologists, financial analysts, systems analysts, journalists, editors, technical publications writers, management consultants and market research analysts.

More on Immigration

Your Qualifications

Once it is established that the job does qualify as a “specialty occupation,” then you have to demonstrate you  meet the qualifications for the job.  To do so, show one of: the following:

1. US Degree. You hold a US degree required for entry into the occupation. The type and level of degree will depend on the occupation. The degree must be in a specialized course of study.
2. Foreign Degree. You hold a foreign degree determined by experts to be equivalent to the US degree.
3. Licensure. You have an unrestricted state license, registration or certificate, authorizing immediate and full practice in the occupation in the state of intended employment.
4. Equivalence. If you do not hold a degree, or you do not have the specific degree normally required for the job, you may be able to establish equivalence by showing you have education, specialized training and/or experience that is equivalent to completion of the requisite degree and there has been recognition of your expertise through progressively responsible positions directly related to the specialty.

(1) Proving Equivalence To College Degree. Equivalence to completion of the requisite degree must be determined by one of the following:

(a) Life Experience Evaluation. This requires an evaluation by an official who has authority to grant college level credit in the specialty occupation for experience at an accredited college having a program for granting life experience credits. However, there are not many schools with such programs.

(b) College Level Equivalency Exam. This requires a recognized college-level equivalency examination or *111 special credit program, such as CLEP (College Level Examination Program) or PONSI (Program on Noncollegiate Sponsored Instruction).

(c) Evaluation by Credentials Evaluation Service. This requires an evaluation of the alien’s education by a reliable credentials evaluation service.

(d) Certification By Professional Society. This requires certification by a nationally recognized professional society that grants such certification based on achievement in the specialty. The society must have objective membership criteria requiring competence in the field. Caution should be exercised where the association requires less than the CIS’s “3 for 1” formula discussed below.

(e) CIS “3 for 1” Determination of Equivalence and Recognition of Expertise.  Under the “3 for 1” rule of degree equivalence, you must have three years of specialized training or work experience for each year of college-level education. Your training and work experience must have been at a specialty occupation level and must have been gained while working with peers, supervisors, or subordinates who do have the degree or its equivalent.

The Evaluation. Evaluation should show satisfaction of the 3 for 1 test and equate education and experience to a specific level of college education, resulting in a “transcript” of courses equivalent to the alien’s level of knowledge in the occupation. Evaluation can be based on a personal interview, review of statements of supervisors and colleagues, the work product and academic record, tour of the work site, etc.

Equivalence to Advanced Degree. If the job requires a Master’s degree, you must have a bachelor’s followed by at least five years of progressively responsible experience in the specialty. If a Doctorate is required by the specialty, you must hold the Doctoral degree or its foreign equivalent.

Recognition of Expertise. To prove you have recognition of expertise in the specialty, show one of the following:

• recognition of expertise in the specialty occupation by two “recognized authorities” in the occupation;
• membership in a recognized foreign or US association or society in the specialty occupation;
• published material by or about you in professional publications, trade journals, books or major newspapers;
• licensure or registration to practice in the specialty occupation in a foreign country;
• achievements a recognized authority has determined to be significant contributions to the field.

Final Thoughts

To recap a couple of important points contained in the first part of this H-1B review, your employer must pay you the higher of the actual wage or prevailing wage.

Also, you can work for up to six years in the U.S., authorized in maximum periods of three years at a time. Note the six-year limit does not apply if you work less than six months each year in the United States or you reach certain milestones in the employment-based green card process.

Finally, your dependent family members (spouses and children under age 21) are eligible for H4 visas to accompany you. However, the H4 visas do not allow for employment in the U.S.

~ Jeff Harrington, Esq.

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