Editor’s note: This commentary article is sponsored by the immigration law firm of Fragomen, Del Rey, Bernsen & Loewy, LLP
It’s March, and while accountants are knee-deep in income taxes, we business immigration attorneys are deeply embedded in our own very busy season: H-1B cap preparation.
It has become routine every year in our world: rushing to file petitions for the skilled immigration program as our corporate clients aim to attract or retain specialized workers from around the world to keep their enterprises competitive globally.
But this year has thrown a few curveballs, with new President Donald Trump vowing to reevaluate and possibly reform the system to ensure it doesn’t harm American workers.
The good news is that it’s unlikely any proposed changes would include a significant reduction in the H-1B cap before U.S. Citizenship and Immigration Services begins accepting petitions April 1. There just isn’t enough time for a major overhaul, and neither Mr. Trump’s proposed executive order nor recently introduced immigration legislation has hinted at reducing the cap — which stands at 85,000 per fiscal year, with 20,000 reserved for those with master’s degrees and Ph.Ds from American universities.
The bad news is that with the cap remaining the same, only a fraction of companies’ requests will be granted.
Here’s how it works: Typically, thousands more H-1B petitions are filed the first week of April than there are cap numbers available. USCIS then conducts a random, computer-generated lottery to select the lucky recipients of that year’s new H-1B numbers. For fiscal year 2016, the chance of selection was about 33 percent.
To avoid being passed over even for those slim odds, companies should immediately identify workers that will be subject to the cap. These typically include F-1 students working pursuant to optional/curricular practical training (OPT/CPT), some L-1 intracompany transferees and future U.S. hires without current work authorization. This year employers may also consider filing H-1B cap petitions for Mexican and Canadian TN employees given the uncertainty of NAFTA’s future under the Trump administration.
Mr. Trump has said he will soon release a new executive order that specifically targets business immigration. A draft of the order leaked to the press in January indicated that the administration may seek to change the way H-1B petitions are awarded. It could also raise the minimum wage necessary to be paid to H-1B workers and introduce enhanced work-site inspections by USCIS to combat fraud.
There is some legal dispute as to which aspects of the H-1B program addressed in the draft could be changed solely by executive order, and which would require formal agency rule-making procedures instead. Any changes to the cap numbers would require legislation passed in Congress.
Some lawmakers are already putting forth plans. Legislative proposals currently in the works include H.R. 670, the High-Skilled Integrity and Fairness Act of 2017, introduced by Representative Zoe Lofgren (D-Calif.), and S.180, the H-1B and L-1 Visa Reform Act, introduced by Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Ill.).
The proposed bills thus far do not seek to change the current 85,000 cap limitation. Rather, they seek to establish means to replace the lottery with a new prioritized allocation system, which could play to the“merit-based immigration system” Mr. Trump called for in his first address to Congress last week.
What has changed this year is that USCIS has announced it will suspend indefinitely the optional expedited processing service (known as “premium processing”) for all H-1B petitions received on April 3rd and beyond. This means that employers will be unable to pay an extra fee for a fast, 15-day decision on H-1B cap petitions. Rather, they’ll have to wait potentially several months to know whether the case has been approved or not.
What to Do Now
It’s an eventful time in the immigration world, to say the least. Appropriate planning with respect to immigration matters is essential for employers during this time of fast-approaching deadlines and potential policy change.
Such strategic forethought can be instrumental in reducing foreign employees’ anxiety over such matters and in abating possible interruptions to daily business operations.
It takes about two weeks to prepare an H-1B cap petition, requiring many government forms and a company letter of support. Companies also need what’s called a certified labor condition application from the Department of Labor which attests that the company is paying the employee a prevailing wage in line with industry standards. This certification alone takes at least a week to receive, and companies should alert their immigration firms to potential cases at least two weeks in advance of April 1.
Also, be aware that H-1B petitions are adjudicated over summer months, and some workers’ authorizations could expire while they wait. Some F-1 students may be eligible for “cap-gap relief” until H-1B validity kicks in Oct. 1. Some students with OPT authorizations in technical fields might qualify for extensions. Other foreign workers may have no other option than to depart the U.S. for awhile.
This is crunch time in the business immigration world – for attorneys, employers, and eager foreign workers hopefully awaiting that golden H-1B lottery ticket. We can’t be sure what will come out of Washington next, but we know this: April 1 is looming, and we all need to work together to ensure a successful (and less stressful) H-1B cap season for all.
Alexandra Holland is an associate attorney at Fragomen, Del Rey, Bernsen & Loewy, LLP’s office in Atlanta.