With the filing window for H-1B petitions subject to the annual 65,000 cap fast approaching, employers should take certain steps to prepare for the heightened scrutiny placed on this visa category. The immigration priorities of the Trump administration include reform of the H-1B visa category, which allows US employers to employ foreign professionals in specialty occupations.  While changes by regulation are not imminent, policy and procedural changes can be swiftly introduced without advance notice.  Changes announced in 2017, along with current trends in petition adjudication, provide important lessons for employers seeking to utilize this visa category for their foreign work corps.

What Should Employers Do Now?

  • Develop and follow a timeline for the H-1B cap process:
    • Preparation and filing of Labor Condition Application (“LCA”):  Early February.
    • Credentials gathering, including any educational evaluations and employment verification proof:  Month of February
    • Petition preparation:  Month of March
    • Petition submission:  Monday, April 2, 2017 (first filing day)
  • Begin the H-1B preparation process now, given that an H-1B prerequisite is the certification of an LCA by the US Department of Labor (DOL). In the event of another government shutdown, the DOL’s acceptance and processing of LCAs in its iCert system would halt, and processing times would likely increase once the DOL resumes operations. Because failure to submit a certified LCA is fatal to an H-1B petition, early preparation of H-1B and LCA filings will help avoid the risk of missing a filing window or submitting a deficient petition.
  • Closely evaluate all H-1B candidates and their credentials in assessing visa eligibility. Similarly, evaluate the strength of position descriptions used to demonstrate that the offered position meets the definition of a “specialty occupation” as required under the H‑1B regulations. To be considered a specialty occupation, a position must be one that requires the education and experience normally associated with completion of a bachelor’s degree in a particular field. US Citizenship and Immigration Services (USCIS) has been challenging H-1B petitions for positions that may be filled by candidates with degrees in a variety of disciplines and for positions certified at the low end of the DOL wage range, i.e., the first of four levels.
  • Be prepared for last-minute surprises by USCIS. In 2017, the agency announced on March 3 that it would stop accepting requests for H-1B petitions under the premium processing program, which provides a 15-day adjudication period, as of April 3. On March 31, 2017, USCIS reversed a previously issued policy memorandum classifying all computer programmer positions, including entry-level positions, as specialty occupations eligible for H-1B visa classification. A few days later, USCIS announced the launch of multiple additional measures to combat H-1B visa fraud and abuse as part of the Trump administration’s policy to put “American Workers First.” These are but a few examples of the types of policy and procedural changes that can affect the preparation of a successful H-1B case.