Immigration @ Work

What 2019 Has In Store for the H-1B Visa Program

by Marylou V. Fabbo

We’re not sure what will ultimately happen in the employment immigration arena this year, but there’s a lot of potential for change.  In early January, we advised employers to keep their eyes open for a potential overhaul of the H-1B lottery process that would require employers to pre-register and wait until after lottery selection to file a full H-1B petition.  Here are some other things to think about.

Employers May Feel Impact of New Labor Condition Application (“LCA”)

If you’ve finally figured out how to fill out the LCA form properly and save it, you might not be excited about this news.  In November 2018, the United States Department of Labor began requiring employers of H-1B applicants use a new LCA Form, ETA 9035.  Take a look at and start using the form if you haven’t already.  Some have suggested that the new form is designed to increase government pressure on companies that employ H-1B workers by eliciting certain internal information that may result in foreign employees being employed at higher salaries.  There’s no data yet that reflects what impact this new form will have on employment-based immigrant visas.  Stay tuned.  

 H-1B/H-4 Employment Marriage in Jeopardy

For some families, one spouse staying home just doesn’t work financially.  If an employee is working pursuant to an H-4 visa, his or her employment may end before you know it.  The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations, and H-4 visas may be issued to the spouses of H-1B visa holders.  The United States Customs & Immigration Services (“USCIS”) is (very slowly) moving forward with a plan to rescind work permits for the H-4 spouses of H-1B workers who are waiting for their green cards. The proposed rule to withdraw H-4 EAD authorization has been in draft since the DHS Fall 2017 agenda.

Whether the H-4 visa was appropriate in the first place is being litigated.  Save Jobs USA v. U.S. Department of Homeland Security has a case pending against the Department of Homeland Security.  Save Jobs USA claims that the DHS did not have the authority to grant EADs to H-4 Visa holders.  While initially dismissed by the Federal Court, it has been appealed to the Federal Appeals Court for the D.C. Circuit.  The court also granted permission to ‘”Immigration Voice,’” a non-profit organization working to curtail issues faced by high-skilled foreign individuals working legally in the United States.  Indian women are the major beneficiary of the H-4 Visa program, and a revocation of their ability to work will substantially impact them.  

Definition of H-1B “Specialty Occupation” and Employer/Employee Relationship May be Further Limited

To qualify for an H-1B Visa, an individual must work in a “specialty occupation” in an “employer-employee relationship.”  A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. Some examples of specialty occupations are architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.  However, a DHS rule called “Strengthening the H-1B Nonimmigrant Visa Classification Program” proposes to revise the definition of “specialty occupation” and “employer-employee relationship” for the stated purposes of  protecting U.S. employees and obtaining the “best and the brightest” foreign nationals in the H-1B Visa program.  Changing the definitions without passing a new law is questionable. In any event, even though the definition has not changed, USCIS has taken a narrower view of what constitutes a specialty occupation when adjudicating H-1B requests.  H-1B Petitions must include evidence that a valid employer-employee relationship exists and, as a practical matter, will increase the likelihood that a proposed employer will receive a Request for Evidence.

Be Prepared for Change

With all the uncertainty, employers should be moving forward as they have in the past while keeping a close eye on what changes may actually come into being.  An employer would be wise  to have a loose plan in place to employ foreign workers in a status other than H-1B or H-4 if the need arises due to regulatory change, statutory amendment or court decision.  

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