Red Tape, Red Flags
May 01, 2018 01:11PM
By Leo Adam Biga
“People need to understand [H-1B] is particularly vital for small states like ours where we've got low unemployment and a high need for STEM jobs,” says Amy Peck, an immigration attorney with Jackson Lewis, P.C.
One recent search on the popular monster.com job searching database revealed more than 30 software development jobs in Omaha posted within one month—jobs for a field where the overall unemployment rate is 1.6 percent.
That’s why many in IT or other STEM-related fields paid attention when, in July 2017, President Donald Trump signed the “Buy American-Hire American” executive order, which subjects already hard-to-obtain work visas to even greater scrutiny.
This was a blow to those employers recruiting skilled labor on H-1B visas. The visa allows for 65,000 employees to be hired from abroad and 20,000 to be hired from students enrolled in U.S. colleges (under the H-1B advanced degree exemption). More than 200,000 applications are expected for H-1B visas in 2018.The application process opens on April 3, and, if the trend continues as it has in the past several years, applications will only be accepted for five to seven days.
Unlike hiring an employee from the United States, when the start date is often two weeks from the acceptance of a job offer, the earliest an H-1 B-status employee could begin work is Oct. 1…if the application is accepted.
Fortunately, there are plenty of folks who can help navigate the legal system. On behalf of clients, Peck fields increasing government reviewer challenges.
One of the biggest impacts this executive order may make is that employees seeking an extension to an H-1B visa will now face the same scrutiny they faced to obtain the visa.
“When we file extensions on cases that got approved without challenge before, they now get challenged even though the facts have not changed,” Peck says.
That means an employee on an H-1B visa who has worked hard, innovated, and generated income for a company could be denied an extension and the company could lose an employee for no reason other than checking the wrong box on the paperwork.
Each denied visa extension would cost a company a skilled, trained worker, filing fees, lawyer fees, and much more.
“This change is very disturbing to employers who want to keep a good employee but fear they may lose them during the extension process,” says Omaha immigration attorney Mark Curley. “Foreign workers feel less secure in their employment. They understand their H-1B extensions could be denied.
“Employers could lose a good employee after three years if [U.S. Citizenship and Immigration Services] re-adjudicates the petition and determines the occupation or employee do not meet H-1B requirements…There is already a backlog in the employment-based green card process for applicants from India and China working high IT-related jobs in Omaha.”
“The H-1B is a specialty occupation visa with very specific requirements,” Peck says. “The job must require at least a bachelor's degree in a specific field or related field. The government has certain wage levels you're required to pay. A very sophisticated analysis goes into that.
“So, this is not something employers are eager to do. Often, it can be the last resort because they can't get U.S. workers to do the job. As an economy we rely on this visa category in ways many people don't want to admit and would like to deny.”
Vetting is done by U.S. Citizenship and Immigration Services center officers. Requests for evidence usually challenge specialty occupation designations.
“We spend a lot of time and effort with employers to describe what the job is,” Peck says. “We cross reference that with the government database. Then we look within the company sponsoring the H-1B to determine if others in that job have a similar degree and we use that to support our submission. The vast majority of our cases are getting approved, but we're having to really fight. It's taking all of our skills, tools, and resources to maneuver successfully in this environment.”
First Data is among several Nebraska employers using H-1B visas due to a shortage of skilled U.S.-born workers.
“There's a myth employers are undercutting the U.S. labor market by hiring H-1Bs, and it really isn't the case because with H-1B labor there is a cost involved not present with a U.S. worker,” Peck says. “The filing fee alone if you're an employer with 25 or more employees is $2,460. If you want your case expedited you add another $1,225—and then attorney fees on top of that.”
Pending federal legislation aims to further scrutinize H-1B visas.
“The practical effect will be fewer petitions filed,” Curley says. “It will decrease the number of foreign students who enroll in U.S. colleges and universities.”
One thing is certain. H-1Bs are a hot item—as a topic of business and political discussion.
This article was printed in the April/May 2018 edition of B2B.