Our office is fielding lots of questions these days from H-1B employees and employers wondering how the H-1B program will be affected by the new administration, and/or by new laws that are currently being proposed in Congress. The short answer is that we just don’t know what will happen in the future, but that there is absolutely nothing new that is in place right now.
Here is what we do know:
Potential Executive Order Focused on Employment-Based Immigration
We anticipate that Mr. Trump may sign another Executive Order in the coming days or weeks that addresses several nonimmigrant visa classifications including the B-1/B-2, F-1, H-1B, L-1, etc. Keep in mind that at this time, the only information we have is “leaked” information – this is not a signed executive order. The details of the executive order may be different in the signed version, and we do not know specifically when we can expect this EO. The current version of this particular EO includes (but is not limited to) the following:
A few notes on this Executive Order:
H-1B-Related Legislation in Congress
In addition to the above possible Executive Order, the media is reporting heavily on a few H-1B-related bills that are currently pending in Congress. The main bills that are in the news are as follows:
Note: The crux of both of these bills is the H-1B exempt worker definition. Please, please, please read the explanation below of exactly what this is, before you go tell your neighbors, family and friends that now every H-1B worker must be paid $130,000/yr. :)
H.R. 170 ("Protect and Grow American Jobs Act"), which would amend the statute to revise the definition of "exempt H-1B nonimmigrant" to eliminate the masters or higher degree requirement and raise the annual salary threshold requirement from $60,000 (the current amount) to $100,000. It also requires an inflation adjustment.
H.R. 670 (““HIGH-SKILLED INTEGRITY AND FAIRNESS ACT OF 2017”), the purpose of which is "[t]o amend the Immigration and Nationality Act to reform the H-1B visa program, and for other purposes." It is sponsored by Rep. Zoe Lofgren (D, Ca-19).
H.R. 670 is more detailed and covers more aspects of the current employment-based immigration law, including the following:
What On Earth Is the H-1B Dependent Exemption?
Every H-1B petitioner (employer) is either H-1B dependent, or not H-1B dependent. The determination of whether an H-1B employer is H-1B dependent depends on how many H-1B employees the company has as compared to the overall number of employees. More specific information on the H-1B dependency determination is available here.
If an employer is NOT H-1B dependent, the proposed changes in the H-1B dependency exemption rules would not affect that employer (unless they become H-1B dependent in the future).
If an employer IS H-1B dependent, they generally must make additional attestations on the Labor Condition Application. Those attestations are that the employer is not displacing US workers (including at the end client site) and that the employer has made a good faith effort to find a US worker to fill the position.
However, an H-1B dependent employer does not have to make these additional attestations if:
(This is the current law; the bills propose to eliminate the master’s degree exemption and to raise the wage level.)
What Does This Mean If the Bill Becomes Law?
If an employer is not H-1B dependent, the attestation requirements, and therefore the exemption requirements, do not apply.
If an employer is H-1B dependent, these bills may possibly change the exemption requirements. That means that the H-1B employer would then have the choice of:
Note that these choices are quite different from the blanket statement that “all H-1B employers must now pay at least $100,000/yr.”
Okay, Got It, Emily. What’s Next?
As they saying goes, I do not have a crystal ball. No one can predict with 100% certainty what will happen, especially in this political environment. However, here are my views on some FAQs that we have received the past few days:
Bills similar to this have surfaced numerous times over the past several years, and have not gotten anywhere. That being said, we are in a different political environment than ever before. Therefore it is within the realm of possibility that a bill such as those outlined above would actually become law.
The US legislative process is designed to be slow and cumbersome. Keep in mind that right now both bills are in committee, not being voted on. Also keep in mind that both houses must approve the bill for it to be sent to the president for signature (when it’s actually enacted and becomes a law). There is often a lot of negotiating on the details of a bill, sometimes within the same house (Senate or House of Representatives), and sometimes between the houses. This means that even if a bill is actually passed into law, we do not know the specific details that it will include.
Again, no one has a crystal ball. I think the likelihood of any of this being in place before April 1 2017 is unlikely.
We will not know this for sure until we the final version of the law, or possibly until the agency (USCIS) finalizes the regulations for the statute (Congress pass the bill, which the president signs into law – the statute, but then the various agencies, including USCIS, draft regulations that tell us precisely how the statute will be administered). My own guess is that it would affect only new H-1Bs going forward (once there is a new law), but we will not know that for sure until the law is passed.
Yoga helps me a lot, but please consult with your physician before undertaking any exercise program.
In addition, every employer must determine for themselves the appropriate action to take. Right now, there are no changes to the H-1B program, and as outlined above, we do not know when, if at all, the H-1B law may change.
These are challenging times for foreign nationals, their families and their employers (and their immigration attorneys). While the road ahead may seem dark and hard to see, we stand in solidarity with our clients and friends, and will take this road by your side step by step.