The H-1B visa process has been an extraordinarily popular program for skilled foreign nationals who want to temporarily live and work in the United States. For the lucky few who obtain an H-1B, it's also an opportunity to potentially gain permanent residence (i.e., a green card) in the future. The hiring U.S. companies gain unique skill sets generally in short supply through the domestic workforce.
But the Trump administration has given ambiguous signals on the future of the H-1B visa program. On the one hand, H-1B professionals are exactly the kind of immigrants that President Trump touts in his vision for "merit-based" immigration system. However, the President routinely criticizes the program.
All of this has been extraordinarily confusing for those seeking an H-1B visa and the companies spending thousands of dollars to hire necessary talent. The roles are generally critical positions that contribute to a company's growth, but recent changes in the program have introduced delays and uncertainty, never good for business. Accordingly, several tech firms are looking to Canada for offices and skilled labor.
To forecast expectations for the future of the H-1B process, it's necessary to analyze the recent past.
H-1B Participants Get Mixed Signals
There's no doubt that President Trump has been a staunch opponent of abuses in the H-1B visa program. Lawmakers' intent when creating the program was to open a door to a foreign workforce only for specialized occupations that could not be satisfied with domestic labor. Critics claim that many companies, particularly in the tech fields, have learned to game the system with the intent of hiring less-expensive foreign talent.
President Trump responded with the “Buy American and Hire American” executive order. This directive has clearly led to more program scrutiny, as it aims to protect U.S. workers in part by rigorously enforcing and administering immigration laws.
Despite the administration's support for highly-skilled immigration, the executive order and other new rules have only impeded the H-1B process. In fact, the approval percentage of I-129F petitions for H-1Bs has declined for five straight years.
In January, President Trump tweeted his support for the program. He announced improvements, adding, "We want to encourage talented and highly skilled people to pursue career options in the U.S."
H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.— Donald J. Trump (@realDonaldTrump) January 11, 2019
Later that month, U.S. Citizenship and Immigration Services (USCIS) published a final rule that includes two major changes consistent with the administration's desire to make the process more efficient and give preference to the most highly skilled applicants.
First, the new rule to begin in 2021 will require that applicants register electronically before submitting the entire application with supporting documents. The change reduces the documentation burden on employers and the H-1B applicant. It also reduces costs for employers seeking H-1B hires.
Those familiar with the mechanics of the H-1B program understand that there are two lotteries. Initially, USCIS selects petitions under the advanced degree exemption. Those not selected then get put into the standard pool. The new rule reverses the order of the lotteries. The relatively simple switch will statistically improve the chances that someone with an advanced degree will be selected for an H-1B visa.
For sponsoring companies, hiring an H-1B employee is an expensive and arduous process. Critics see it as a loophole to hire less expensive foreign employees. Businesses largely participate because the specialized skill set is not widely available within the domestic workforce. The rare few that abuse the program invite more scrutiny to those working with the intended use of the program.
A Possible Future for H-1B Applicants
There's plenty of evidence to suggest that H-1B petitions will receive increased scrutiny from USCIS in the coming months. Though the H-1B is a valued program to recruit top talent for U.S. employers, it is also under a microscope from an administration that wants to protect U.S. workers.
It's likely that demand for H1-B will increase. The American economy has experienced healthy growth and shows signs of possibly continuing on that path. As the economy grows and the employment rate is near all-time highs, there is generally a shortage of highly-skilled labor. Thus, many U.S. companies, particularly thriving tech firms, will be in need of H-1B professionals. At the same time, difficulty obtaining L-1 visas may steer more demand to the H-1B program.
Therefore, it's critical for sponsoring employers to effectively demonstrate that the H-1B position qualifies as a specialty occupation. In fact, this was the top reason for a Request for Evidence in fiscal year 2018. USCIS wants the sponsoring employer to prove that the position being offered requires specialized skills only available from the foreign national beneficiary. Other common RFE reasons are closely linked to the validity of the position. This is why hiring a law firm with experience in the H-1B space can be instrumental for approvals.
New policies show a preference for advanced degree (master’s and higher) holders. Employers need to carefully analyze the need to pursue candidates with only a bachelor's degree, making sure they will qualify. H-1B hopefuls may consider continuing their U.S. education in pursuit of an advanced degree.
Go into the process with experience. Utilize an immigration attorney who routinely processes H-1B and other employment-based cases. An expert who has practiced within the space will have a better understanding of how to effectively document the unique requirements of the employer and how the intended employee satisfies those requirements.
If comprehensive immigration reform ever materializes in the Trump era, it is possible that prospective H-1B visa holders will benefit. The H-1B program fits into Trump's merit-based system and could even see an increase in the statutory caps (although to be fair, candidate Trump also suggested cutting all immigration levels). Those lucky enough to get an H-1B could also receive better compensation. Some congressional proposals have suggested raising the minimum annual salary for H-1B hires from $65,000 to $100,000.
Russ Leimer is the co-founder of CitizenPath.com: online, do-it-yourself immigration services designed by attorneys and backed up with live customer support. CitizenPath simplifies immigration paperwork related to green card applications, renewals, U.S. citizenship and a variety of other services.