H 1-B Changes under the Trump Administration

Trump Administration
H-1B Changes under the

The H-1B Visa: Possible Upcoming Executive Actions
Secretary of Homeland Security
• To review all regulations that allow foreign nationals to work in the U.S. and determine which violate
immigration laws or are otherwise not in the national interest and that should be rescinded.
• To publish a semi-annual report on the number of new Employment Authorization Documents
(EADs) issued.
• To publish an annual report detailing the total number of foreign-born persons authorized to work in
the United States, disaggregated by immigration status and the total number of persons in the
United States in each of the employment-based nonimmigrant statuses.
• To make the H-1B allocation process more efficient and ensure that beneficiaries are the “best and
brightest.”
• To conduct regular fraud assessment of all immigration benefits categories.
• To reform optional practical training programs (OPTs) for foreign students to prevent the
disadvantaging of U.S. students in the workforce.
• To incentivize and expand participation by employers in E-Verify.
Secretary of Labor
• To investigate the extent of injury to U.S. workers of foreign workers’ employment under
nonimmigrant visa programs (H-1B, L-1, and B-1 categories).
• To publish a report detailing the effect of immigration and of the employment of foreign temporary
workers on wages and employment of U.S. workers since FY 2000.
Draft Executive Order (leaked January 25, 2017)

The H-1B Visa: Current Legislation – The Senate
1. Requires a) federal agencies, contractors, and critical employers to participate in E-Verify; b) all U.S. employers to participate in E-
Verify within one year of enactment of this Act; c) employers using a contract, subcontract, or exchange to obtain labor to certify
that they utilize E-Verify.
2. An employer’s failure to use E-Verify shall be treated as a violation of the INA requirement to verify employment eligibility and
creates a rebuttable presumption that the employer knowingly hired, recruited, or referred an illegal alien.
1. Eliminate the per-country numerical limitation for employment-based immigrants.
2. Increase the per-country numerical limitation for family-sponsored immigrants.
S. 179 Accountability Through Electronic Verification Act (sponsored by Sen. Chuck Grassley (R-IA))
S. 180 – H-1B and L-1 Visa Reform Act of 2017 (sponsored by Sen. Chuck Grassley (R-IA))
1. Establishes an H-1B visa allocation system with first priority reserved for aliens who have earned an advanced degree in a
STEM field from a U.S. institution of higher education.
2. Requires completion of a U.S. degree (or foreign equivalent) as a qualification for “specialty occupation” eligibility, eliminating
experience in a specialty as an equivalent to the completion of such a degree.
3. Creates an H-1B Labor Condition Application fee.
4. The period of authorized admission for an H-1B immigrant is reduced from six to three years, with a three-year extension
available for aliens with extraordinary ability or with advanced degrees.
5. US DOL will conduct annual audits of companies with more than 100 employees who work in the U.S. if more than 15% of those
employees are H-1B non-immigrants.
6. Increase employer penalties, including the penalty of displacing a U.S. worker.
7. Prohibits an employer from hiring for more than one year an L-1 nonimmigrant who will serve in a capacity involving specialized
knowledge and be stationed primarily at the worksite of a third-party employer.
S. 281 – A Bill to Amend the INA(sponsored by Sen. Mike Lee (R-UT))

The H-1B Visa: Current Legislation – The House
HR 170 – The Protect and Grow American Jobs Act
(sponsored by Reps. Darrell Issa (R-CA) and Scott Peters (D-CA))
1. Raises the H-1B salary requirement for an H-1B exempt worker from $60k to $100k.
2. Eliminates the master’s degree provision which currently allows the foreign national to be classified as an exempt H-1B worker.
HR 670 -The High-Skilled Integrity and Fairness Act
(sponsored by Rep. Zoe Lofgren (D-CA))
1. Increases prevailing wage requirements by replacing the current 4-level wage calculation with a geographically based 3-level
formula which eliminates the lowest wage level and puts upward pressure on the wages in the remaining levels.
2. Prioritizes market-based allocation of H-1B visas as follows:
1. Employers paying 200% of level 3 prevailing wage, then 150% of level 3.
2. Employers paying 200% of level 2 prevailing wage, then 150% of level 2.
3. Employers paying 200% of level 1 prevailing wage, them 150% of level 1.
3. Removes the ‘per country’ cap for employment based immigrant visas.
4. Raises the salary level at which H-1B dependent employers are exempt to a new required wage level of 35% above the
median national annual wage (DOL Office of Employment Statistics) for Computer and Mathematical Occupations (roughly
$132,000).
5. Eliminates the Master’s Degree exemption for dependent employers.
6. Sets aside 20% of the annually allocated H-1B visas for small and start-up employers (50 or fewer employers).
7. Removes visa hurdles for students and other temporary visa holders by building a bridge from F-1 student status to Lawful
Permanent Residence.

The H-1B Visa: Other Possible Legislative Initiatives
LEAST LIKELY MOST LIKELY
Raise the H-1B cap to a new
maximum of 180,000 (SB744)
Revoke employer’s eligibility to
file H-1B petitions if convicted
in US court for employment law
violations.
Reduce authorized H-1B
admissions from six to three
years.
Prohibit employers from
outsourcing, leasing, or placing L-1
workers at third party locations
(SB2266, HR5657)
H-1B dependent employers with >50
employees, and 50% in H-1B status,
not allowed to file new petitions (SB
2266, HR5657)
Increase (H-1, L-1) and/or impose
(LCA) filing fees (CIS, SB2266,
HR5657, SB744)
Increased scrutiny, audits, and
investigations of employers
suspected of abusing visa
categories (SB2266, HR5657,
SB744, Trump’s speeches,
Sessions nomination)
Replace H-1B lottery with system
that gives preference to
employers offering the highest
wages
Establish a merit-based visa
allocation system giving first
priority to aliens with advanced
STEM degrees (SB2266, HR5657,
Trump interview 1/17/17)
Require all H-1B employers to
complete a market attestation process
for all H-1B positions
Create a website and toll free
number for the public to report
LCA violations
POTENTIALLY

THE H-1B VISA: An Overview
• Allows petitioners with bachelor’s
degrees or equivalent up to six years
of continuous authorization for
employment in US firms.
• 65,000 new H-1B visas available
annually + additional 20,000 for foreign
nationals who have obtained a US
master’s degree or higher.
• Holders may have “dual intent” visa,
allowing for the simultaneous pursuit
of an immigrant visa.

THE H-1B VISA REQUIREMENTS
• Petitioning U.S. employer must have an
employer-employee relationship with
the beneficiary: that is, they must have
the “right to control” when, where, and
how the beneficiary performs the job.
• Beneficiary’s job must qualify as a
specialty occupation by meeting one of the
established criteria.
• Beneficiary’s job must be in a specialty
occupation related to their field of study.
• Beneficiary must be paid at least the
actual or prevailing wage for their
occupation, whichever is higher.
• An H-1B visa number must be available at
the time of filing the petition, unless the
petition is exempt from numerical limits.
USCIS will consider the following when making a
determination on right to control:
1. Does the petitioner supervise the beneficiary? Is
supervision off-site or on-site?
2. If off-site, how does the petitioner maintain such
supervision?
3. Does the petitioner have the right to control on a
day-to-day basis?
4. Does the petitioner provide the tools or
instrumentalities needed by the beneficiary?
5. Does the petitioner hire, pay, and have the power
to fire the beneficiary?
6. Does the petitioner evaluate the beneficiary’s
work product?
7. Does the petitioner claim the beneficiary for tax
purposes?
8. Does the petitioner provide the beneficiary with
employee benefits?
9. Does the beneficiary use the petitioner’s
proprietary information?
10.Does the beneficiary produce an end-product that
is directly linked to the petitioner’s business?
11.Does the petitioner control the manner and
means in which the work product is
accomplished?
Source: https://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/understanding-h-1b-requirements

1. Minimum requirement for the position is a
bachelor’s degree or higher degree.
2. The degree requirement is common for the
position or the job is so complex that it can only
be performed by someone with a bachelor’s
degree in a related field.
3. The employer normally requires a degree of its
equivalent for the position.
4. The nature of the specific duties is so specialized
and complex that the knowledge required to
perform the duties is usually associated with the
attainment of a bachelor’s or higher degree.
employer-employee relationship with the
beneficiary: that is, they must have the
“right to control” when, where, and how
the beneficiary performs the job.
specialty occupation by meeting one
of the established criteria.

Specialty Occupation means an occupation
which requires theoretical and practical
application of a body of highly specialized
knowledge and which requires a bachelor’s
degree or higher in a specific specialty or its
equivalent.
To qualify as a specialty occupation, the position
must meet one of the following criteria:
1. A baccalaureate or higher degree or its
equivalent is normally the minimum requirement.
2. The degree requirement is common to the
industry in parallel positions among similar
organizations or the employer may show that the
position is so complex and unique that it can only
be performed by an individual with a degree.
3. The employer normally requires a degree or its
equivalent for the position.
4. The nature of the specific duties are so
specialized and complex that knowledge required
to perform the duties is usually associated with
the attainment of a baccalaureate or higher
degree.
beneficiary: that is, they must have the “right
to control” when, where, and how the
beneficiary performs the job.
• Beneficiary’s job must qualify as a specialty
occupation by meeting one of the established
criteria.
• Beneficiary must be paid at least the actual
or prevailing wage for their occupation,
whichever is higher.

specialty occupation by meeting one of
the established criteria.
The actual wage is the wage rate paid by the
employer to all other individuals with similar
experience and qualifications for the specific
employment in question.
The prevailing wage for the occupational
classification in the area of intended employment
must be determined by the time of the application
filing. Prevailing wages can be determined in multiple
ways:
1. Office of Foreign Labor Certification’s National
Processing Center determination.
2. Independent authoritative sources.
3. A collective bargaining agreement which contains
a wage rate applicable to the occupation.
4. If occupation is not covered by a collective
bargaining agreement, the prevailing wage will
the arithmetic mean of the wages of workers
similarly employed.

specialty occupation by meeting one of
the established criteria.
• The H-1B visa has an annual numerical limit (cap)
of 65,000 each fiscal year (+20,000 cap exempt
visas for beneficiaries with master’s degrees or
higher).
• H-1B workers who are petitioned for a higher
education institution, a nonprofit research
organization, or a government research
organization are also cap exempt.
• Cap numbers are often used up very quickly, so it
is important to plan in advance if you intend to file
for an H-1B that is subject to the annual cap.
• The U.S. government’s fiscal year starts on
October 1. H-1B petitions can be filed up to 6
months before the start date, which is generally
April 1 for an October 1 start date.

DOCUMENT
COLLECTION
Request foreign national
complete online
questionnaire.
Send document checklist
to foreign national and
client
(if applicable).
2
Labor Condition
Application (LCA)
Determine prevailing
wage.
Send LCA to client for
posting.
3
Once posting is
confirmed, submit LCA
to US Department of
Labor (DOL).
H-1B PREP
Prepare H-1B materials.
When LCA is certified,
send H-1B materials to
client for review &
signature.
4
Assemble H-1B materials
and supporting
documents.
APPROVAL &
PACKETS
Note of approval for
petition.
Send instruction on
next steps and obtaining
a visa (if applicable).
6
Send approval &
supporting documents to
foreign national.
CASE
INITIATION
Case initiated via
INSZoom portal.
Case assessed by FGI to
determine or confirm
strategy.
Client (petitioning
company) authorizes
cases.
1
TRACKING
Request I-94 and visa
stamp (if applicable).
Track expiry date(s).
7
Contact client
regarding extension.
FILING
Application filed with
USCIS.
Receipt notice received
and loaded to portal.
5
Notification sent to
client and foreign
national.
THE H-1B PROCESSING MAP REQUIREMENTS

THE H-1B VISA: REQUESTS FOR EVIDENCE (RFEs)
Common RFE requests give by USCIS
• Beneficiary qualifications
• Employer-employee relationship
• Maintenance of status
• Needs of the petitioner for the
services of the beneficiary
• Specialty occupation
• Validation Instrument for Business
Enterprises (VIBE)
• RFEs may request an explanation and
documentation of how a degree is related
to the position.
• RFEs may ask for proof that a foreign
degree is equivalent to a U.S. bachelor’s
degree.
• RFEs may request an education
evaluation.

• If a beneficiary works off-site, USCIS may
seek to determine if a valid employer-
employee relationship exists.
• Petitioner may be asked to provide
documentation to prove its control over the
beneficiary’s work assignment.
• Petitioners may be asked to provide
documentation on off-site projects.
Enterprises (VIBE)

• When a petitioner requests a change of
status for a beneficiary, USCIS may
request proof that the beneficiary has
properly maintained their current status.
• Generally, pay statements can satisfy this
requirement.
Enterprises (VIBE)

• With regard to small business petitioners,
USCIS looks warily on foreign workers
with skills not normally associated with the
business.
• USCIS may issue an RFE to provide
documentation that the position satisfies a
legitimate business need.
• The petitioner must demonstrate that the
beneficiary will be employed in the
qualifying position and not in a lesser role.
Enterprises (VIBE)

• Despite the regulations, USCIS officers
have the adjudicating power to determine
whether the beneficiary’s proposed
position meets the standard of a specialty
occupation.
• USCIS may issue an RFE asking for a
more detailed job description, job vacancy
announcements for the position, etc.
Enterprises (VIBE)

Enterprises (VIBE)
• USCIS checks all H-1B petitions in VIBE
to validate information about the
petitioning business or organization.
• If the information in VIBE does not match
what is in the petition, USCIS may issue
an RFE asking for documentation
demonstrating the validity of the business
enterprise.
• Documentation may include Federal Tax
ID Number (FEIN), lease agreement for
office space, tax returns, articles of
incorporation, etc.)

• USCIS is looking back at petitions and
issuing Notice of Intent to Revoke (NOIR)
years after approval
• RFEs are more detailed and specific
• USCIS utilizing accessibility to previously
filed petitions to review new cases
• USCIS also looking at all cases filed by
Petitioner when adjudicating individual
cases
ADDITIONAL CONSIDERATIONS

THE H-1B VISA: FILING AN LABOR CONDITION
• A Labor Condition Application (LCA) contains
wage and location information about the
proposed position.
• A certified LCA – ETA Form 9035 – is necessary
for H-1B petition approval
• Petitioning employer must make four
attestations:
1. Prevailing wage requirement,
2. Similarity of working conditions between foreign and
U.S. workers,
3. Non-existence of strike or lock-out in the place of
employment, and
4. Notice of the application has been provided to
employees in the petitioner’s organization.
• Completed LCA is submitted through iCert, the
US Department of Labor’s (DOL) online system.
• If certified by the DOL, the LCA remains valid for
up to three years as long as the employer does
not become H-1B dependent or experiences
strikes, lockouts, or work stoppages.

THE H-1B VISA: POST-APPROVAL PROCESS
If the foreign national is outside of the United States:
• He or she will need to make appointment with a US consulate or
embassy.
• He or she will need to appear for an interview before a consular officer.
• The foreign national should review the petition packet prior to the
interview.
• After a successful interview, the approved visa will be affixed in the
foreign national’s passport; he or she should review it carefully to make
sure that all information is correct.
• The foreign national will need to present a valid passport and visa to an
inspecting officer at the US port of entry.
• If everything is in order, the inspecting officer will enter Form I-94
(pictured) arrival information into a database,
https://i94.cbp.dhs.gov/I94, which the foreign national should access
and print for each family member.

If the foreign national is in the United States, but
approval notice doesn’t have an attached Form I-94
• The US Customs & Border Protection officers replace I-94 records each
time the foreign national departs and re-enters the US.
• The foreign national’s most recent I-94 record from the last entry
controls his or her status.
• To obtain a new Form I-94 record, the foreign national must leave the
US and obtain an H-1B visa at a US embassy or consulate abroad.
• The foreign national will then need to apply for admission at a US port
of entry.
If the foreign national is in the United States, and
approval notice has an attached Form I-94
• The petitioning company must provide the bottom portion of the original
approval notice to the foreign national.
• The bottom portion is the I-94 card that grants the foreign national
status in the US and controls how long she or he may remain in the US.
THE H-1B VISA: POST-APPROVAL PROCESS

EMPLOYMENT OPTIONS FOR F-1s
• Must maintain legal F-1 status.
• Up to 20 hours per week during
the term.
• No permission required and
work does not have to be
related to field of study.
• Employment must be on
campus.
• Must be full time student for at least one
academic year.
• Must be required as part of graduation
requirements or integral part of
curriculum.
• Full or part-time work allowed.
• Full-time CPT for 12 months or more
disqualifies student from OPT.
• Job offer required.
On-Campus Employment Curricular Practical Training (CPT)
Severe Economic Hardship
Employment Authorization
• Must have one academic year in F-1
status.
• Employment must not interfere with
course of study.
• Generated one year at a time.
• Work does not have to be related to
field of study.
• Must demonstrate severe economic
hardship due to unforeseen
circumstances.
Optional Practical Training (OPT)
academic year.
• OPT can be performed full-time (summer
vacation or after completion of
coursework) or part-time.
• Must apply for OPT before completion of
study.
• Work should be related to field of study.
• No job offer required.

STEM OPT: FROM F-1 TO OPT TO H-1B
F-1 (STEM) STUDENT
INTERNATIONAL STUDENT
Attending a university or college &
pursuing a degree in Science,
Technology, Engineering or Mathematics
OPTIONAL PRACTICAL TRAINING
AUTHORIZES F-1 STUDENTS
to work for an organization that directly
relates to their major field of study

CAP GAP & OPT
Student receives
updated
Form I-20 (Certificate of
Eligibility for
Nonimmigrant Status)
from DSO
Student provides
updated I-20 and
expired EAD card
Updated I-20 must be
endorsed with
recommendation for cap-
gap extension
Employer records
in Sec 2 or 3, the
EAD and EAD
Number. Put the
EAD expiration in
the date space
and “CAP GAP” in
the Additional Info
Field
H-1B accepted
for processing
Current OPT
status at time
of H-1B filing
ELIGIBILITY
EVIDENCE OF
EXTENSION OF WORK
AUTHORIZATION
Document
on I-9
USCIS
DECISION
Student can continue to
work until H-1B
approved and valid on
Oct. 1, or denied. Can
not use CAP-GAP past
10/1

Other Options If Not Selected in the H-1B Cap
• Must be a manager/executive (L-1A), or
specialized knowledge worker (L-1B)
employed by foreign business entity.
• Must have worked abroad at least one
continuous year in the past 3 years.
• Petitioning U.S. entity must have a
qualifying relationship with the entity
abroad.
academic year.
• Must be required as part of graduation
requirements or integral part of curriculum.
• Full or part-time work allowed.
• Full-time CPT for 12 months or more
disqualifies student from OPT.
• Job offer required.
L-1 VISAS Return to School and do Curricular
Practical Training (CPT)
E VISAS
• Treaty Traders (E-1) pursue substantial
trade in goods principally between US and
foreign country of which they are citizens
or nationals.
• Treaty Investors (E-2) direct the
operations of an enterprise in which they
have invested, or are investing, substantial
amounts of money.
• Treaty Traders and Investors must apply
and receive their visa from a US Consulate
or Embassy overseas.
TN Visas
• Applies only to citizens of NAFTA signatory
countries (Canada and Mexico) in qualified
positions.
• The position in the US must require a
NAFTA professional.
• Must have a pre-arranged full-time or part-
time job with a U.S. employers (self-
employment not permitted).
• You will be asked to provide proof of
citizenship at the port of entry.

H 1-B Changes under the Trump Administration

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