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Will H-1B and other work visa rules change?

February 8, 2017

By Anthony Kaylin

President Trump is considering an Executive Order (EO) to modify the current H-1B system.  During his candidacy he expressed the view that the H-1B system was subject to abuse and needed revamping.  “These are temporary foreign workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay,” Candidate Trump said in a statement last March. “I remain totally committed to eliminating rampant, widespread H-1B abuse.”  The idea of H-1B fraud and abuse has been an issue throughout the 2000s.  A report released in 2008 by Senator Charles Grassley detailed a number of issues from technical violations to willful fraud.

Generally, applicants for H-1B visas must have a Bachelor’s degree or equivalent and must be in a “specialty occupation” requiring theoretical and practical application of a body of highly specialized knowledge including but not limited to biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts.  Generally, all H-1B petitions must be filed during the first five business days of April.  Beneficiaries of successful FY 2018 H-1B petitions will be eligible to begin work in the U.S. on October 1, 2017. Each year, there are 65,000 regular H-1B visas available, plus an additional 20,000 for those who have earned a Master’s degree or higher from an accredited U.S. institution. If there are greater than 65,000 regular H-1B petitions filed, a lottery system is used to pick the “winning” H-1B visa petitions.

The High Tech industry is especially alarmed by any changes. They have lobbied to increase the number of H-1Bs.  According to Blake Irving, chief executive of web-services firm GoDaddy Inc., there are currently more than 500,000 unfilled high-skill IT and computer science jobs that are open in the U.S.  Any changes that reduce the number of H-1Bs awarded or eliminates the H-1B could have a harsh impact on U.S. technology companies.  “Companies are starving for talent,” said Vivek Ravisankar, chief executive of developer recruitment startup HackerRank.  According to the Labor Department, computer systems analysts and software application developers together account for about 40% of H-1B position certifications.

A copy of a proposed draft EO was circulated among interested parties and was posted online.  It is not limited to H-1B visas but all work visas.  Among other things, it directs the government to re-examine a range of visa programs to ensure they prioritize and protect “the jobs, wages and well-being of United States workers.”   It also directs the Secretary of Homeland Security to issue a new regulation within 90 days “to restore the integrity of employment-based nonimmigrant worker programs and better protect U.S. and foreign workers affected by those programs.”  In addition, it also mandates new inspections of work sites that participate in visa programs and for regulations to “reform” an optional practical training (OPT) program that helps foreign students after they graduate. Moreover, it also would immediately end “parole” policies that allow immigrants to remain in the U.S. and sometimes work after their visas expire.

If this EO were to be signed, one possible outcome could be an increase of the salary base from $60,000.  High Tech would not as likely be hurt as starting salaries in Silicon Valley start at about $120,000 a year, but it could hurt start-ups in lower costing locations. It may also reduce the number of H-1Bs outsourcers like Tata Consultancy or Infosys obtain.  They generally pay lower salaries and do not sponsor workers for green cards. It could impose severe penalties on employers who have H-1B employees terminate, but not leave the country immediately thereafter, unless the H-1B was transferred to a new employer. In addition, L-1 visas will also be under greater scrutiny with increased inspections.  OPT student programs would be limited, and the expansion of the time period of the program would likely be reduced.

At this time no Executive Order has been signed, and everything is speculative.  However, Congress is taking notice.  A bipartisan bill is currently pending in the House to increase the pay of H-1B to at least $100,000 a year.  Another bill would raise it to $130,000.  ASE will monitor and report if any changes occur in the various work visa programs.

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