May 23, 2018

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Feds Announce Intention to Change H1-B Visa Program

Francis Cissna
Photo Credit: U.S. Customs and Border Protection, Public Domain

In a letter to the Senate Judiciary Committee, the US Citizen and Immigration Services (USCIS) Director, Francis Cissna, announced plans to alter the framework for H1-B visas, which allow US companies to hire foreign workers with technical or theoretical knowledge. The changes would specifically target spouses of H1-B recipients, removing their ability to apply for work permits while in the US.

As many as 70,000 spouses could be affected by the changes, marking a major turning point in the USCIS program just three years after the work permits were granted and a low blow to spouses seeking employment.

The letter also outlines restrictive changes regarding three essential criteria for H1-B applicants. To that end, the terms, “specialty occupation,” “employment,” and “employer-employee relationship,” will be strictly defined.

Cissna also announced a rescission of an Obama-era measure known as the International Entrepreneur Rule, which allows individuals from other countries to run their start-up in the US for a limited number of years. It is not yet clear when these changes would be effectuated, but according to the letter, there will be a period for public comments.

Context

These alterations come in the wake of President Trump’s executive order – “Buy American and Hire American” – which calls for “higher wages and employment rates for workers in the United States […] to protect their economic interests.” The order also asks several agencies – including the Department of Homeland Security – to crack down on “fraud or abuse” of the H1-B visa program.

The letter to Senator Chuck Grassley – Chairman of the Senate Judiciary Committee –followed hard on the heels of a memorandum released by USCIS in February. The memo outlined the agency’s intention to collect information regarding “outsourcing firms,” which allegedly saturate the H1-B visa lottery with applications in order to get as many foreign workers as possible. Those workers are then sent to third-party employers. Major firms in Silicon Valley, who have a vested interest in H1-B visas, have lambasted these outsourcing firms.

Commentary

Withers Bergman, an immigration lawyer, told GeekWire that the policy memo does not change any rules; rather, it “gives USCIS adjudicators more deference to deny cases for failure to provide the requested documentation.” For instance, the memo tightens restrictions around the “employer-employee” requirement, by requiring outsourcing firms to submit documentation proving that such a relationship exists. What’s more, these firms will need to provide evidence showing that foreign workers are being brought over to fill “specialty occupations.” In the words of the memo: “USCIS looks at a number of factors to determine whether a valid relationship exists, including whether the petitioner controls when, where, and how the beneficiary performs the job.”

Critique

In light of the memo and the letter to the Senate, it is clear that the H1-B program is dwindling. Tahmina Watson, an immigration lawyer from Seattle, has put forth an astounding estimation: “[There] will likely be about 40 percent denials in this year’s H-1B cap and that’s going to have a big shape in how next year’s visa activities happen.” According to Watson, this is due to “a seismic shift in how visas are being approved.” Lola Zakharova, a Seattle-based immigration lawyer, agrees: “[T]he USCIS started challenging H-1Bs which would have no problem being approved in the past.”

Microsoft, Pleased as Punch

Microsoft CEO Satya Nadella is on board with the proposed changes. In an interview with Marketplace, he expressed his desire for H1-B visas to be doled out in the “right” way: “I think the H-1B review is … a good thing because I think every country should look at their immigration policy and in this case, it’s about American competitiveness.” He went on: “Ultimately, it’s about high-skill labor and a review that says there is the right use of [the H-1B] and misuses of it — and we promote more the right uses of it — all the better for American competitiveness […] At least at Microsoft, when we think about H-1B, it’s mostly about high-skilled labor that allows us, an American company, to be globally competitive.”

About Sean Lally

Sean Lally holds a BA in Philosophy from Temple University where he also studied theatre for several years. Between 2007 and 2017, he worked as a professional actor for several regional theater companies in Philadelphia, including the Arden Theatre Co., EgoPo Productions, Lantern Theater and the Bearded Ladies. In 2010, Sean co-founded Found Theater Company, an avant-garde artist collective with whom he first started to cultivate an identity as a writer.

Over the past few years, Sean has been working as a content writer, focusing primarily on the ways in which unequal power distribution can negatively affect consumers, workers and “everyday people,” more broadly. He writes for a number of websites including AccidentAttorneys.org, PersonalInjury.com, AmericanLegalNews.com and others.