Employers Beware! The Donald Trump Administration changed H1B filing process!

March 7, 2017

On March 3, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced a temporary suspension of “premium processing” for H-1B visas. This suspension is scheduled to take effect as of April 3, 2017, and may last up to six months, according to the USCIS website.

 

What is the H-1B visa?

 

The H-1B visa is commonly used for high-skilled foreign workers.  It allows U.S. companies to employ graduate workers in several specialized fields, including information technology, medicine, engineering and mathematics. These visas are frequently used by large U.S. technology businesses to hire top international engineering workers. The visa is valid for three years but can be extended for an additional three years. Some key requirements that must be met to apply for an H-1B visa are: (1) the applicant must have obtained at least a bachelor's degree or 12 years of work experience, (2) the applicant must have an employer-employee relationship with the petitioning U.S. employer; (3) the applicant’s prospective job must qualify as a specialty occupation; (4) the job must be in a specialty occupation related to the applicant’s field of study; (5) the applicant must be paid at least the actual or prevailing wage for the occupation; and (6) an H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.  

 

Premium Processing Changes

 

Under the current system, companies submitting applications for H-1B visas can pay an additional $1,225 for expedited processing, which is referred to as premium processing. Premium processing allows the H-1B applications to be processed within 15 days, whereas a standard process takes three to six months.

The U.S. currently caps H-1B visas at 65,000 a year, with an additional 20,000 allowed for those who have earned advanced college degrees in the U.S. Theses visas are in high demand and are allotted by a lottery system. In many cases, for those who are already in the U.S., premium processing helps in planning for alternative visa options if they are not selected by the lottery.

 

Impact of H-1B Suspension

 

The U.S. suspension of premium processing will likely impact U.S. IT Tech firms, which depend heavily on the guest worker programme. These particular Tech firms utilize H-1B’s to hire trained talented workers who they cannot find locally to hire. Typically, there are three times as many petitions as the H-1B visa limit, and companies use the expedited process to expedite their immigration petitions. As of result of the suspension, foreigners applying for temporary jobs at high-tech U.S. companies will undergo a longer visa approval process.  U.S. companies fear that this delay will impact their bottom line.

 

According to USCIS, suspending the premium processing service will allow the agency to process long pending H-1B regular petitions. USCIS correlates its inability to process regular applications due to the high volume of premium processing applications and thus suspending this service will reduce overall H-1B processing times.

 

However, some believe the suspension will substantially harm U.S. businesses by restricting companies from hiring essential employees in a timely manner. Business owners point out that it is not a coincidence that the suspension is scheduled to take effect by the next visa lottery in April of 2017. Several companies’ reason that due to the large number of applications in comparison to the actual H-1B visa’s allotted, the lottery system is needed. Some even argue that this changes to reform immigration; however, business owners argue that H-1B visas should be treated as a trade/business matter, rather than a method to reform immigration.

 

Suspension Exceptions

 

During the suspension, individuals still can request expedited consideration, but must meet certain criteria, such as humanitarian reasons, an emergency situation or the prospect of severe financial loss to a company or individual.

 

This particular suspension should be seen as the first in a more serious set of reforms being pushed by the Donald Trump administration. Therefore, U.S. companies should consider its future plans as changes in immigration laws will affect its ability to hire foreign workers.

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