Trump and H-1Bs: What’s Going On?

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:

  • Broad calls for the DHS Secretary to review regulations that allow foreign nationals to work in the US, and to propose for notice and comment a regulation “to restore the integrity of employment-based nonimmigrant worker programs and better protect U.S. and foreign workers affected by those programs.”
  • Directs the Secretary to consider ways to make the H-1B visa allocation process “more efficient” and to ensure that the H-1B beneficiaries are “the best and the brightest.”
  • Directs the Secretary to start performing site visits for L-1 workers within 180 days of the date of the order (remember the order is not signed yet). This site-visit program would be expanded within 2 years to cover all employment-based visa programs.
  • Within 180 days, the Secretary must establish a commission to analyze the country’s current immigration policies and their impact on society, the economy, U.S. workers, and the foreign policy and national security interests of the US.
  • Calls for notice and comment for a regulation to reform the F-1 OPT program; to clarify the proper use of the B-1/B-2 visa classification; and to change the way that foreign nationals file for adjustment of status to reduce inefficiencies.
  • Calls for the development of a list of options for expanding the participation in E-Verify

A few notes on this Executive Order:

  • As we have mentioned above, this EO is not official. It is leaked information, and it is not signed right now. The final executive order may have different information.
  • Most of the items in this EO are pretty general – for example, requiring the Secretary to review current regulations and to establish the commission to analyze the current immigration policies. This is not to say that nothing will come of this, but rather that we do not have many concrete details right now about what kinds of policies these activities may actually yield.
  • Many of the items require either the drafting or revision of regulations. When a regulation is written, the Administrative Procedures Act requires a notice and comment period, in which stakeholders (employers and other interested parties) can provide their feedback. Of course the agency may or may not change the regulations to reflect any given feedback, but the opportunity is there. This also means that any regulatory changes will not take effect immediately, and we will have advance notice of the changes.
  • Given this broad review and the broad call for new regulations, we anticipate that the following may possibly be affected:
    • H-4 EADs
    • STEM OPT Extensions
    • Possibly the H-1B visa allocation system (which is currently done by lottery)

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:

  • Eliminating the per country quota for employment-based immigrant visas (green cards). This would mean, in theory at least, that your country of birth would no longer matter in terms of waiting for a green card. Note that this does not mean that there would be no wait for a green card, but rather that the wait would be more uniform for everyone, regardless of the country of birth.
  • H-1B Reform:
    • For the H-1B exemption, gets rid of the master’s degree exemption and sets the wage exemption level at $130,000/yr, subject to adjustment in the future
    • Prohibits liquidated damages clauses for H-1B workers
    • Increases the prevailing wage requirements (see the text for the specific calculation)
    • Prioritizes the allocation of H-1Bs based on wages (the text is not at all specific about how this would work logistically)
    • Sets aside 20% of the annual allocation of H-1B visas for start-ups (50 or fewer employees), as long as the employee will not be placed at a third-party worksite for more than 30 days
  • Allows for dual intent (the ability to hold a specific nonimmigrant visa classification and pursue permanent residence at the same time) for F-1, O-1, P and TN visa holders
  • Eliminates the need for an H-1B amendment when there is a change in worksite as long as there is a valid, certified LCA for the new worksite

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 U.S. workers (including at the end client site) and that the employer has made a good faith effort to find a U.S. worker to fill the position.

However, an H-1B dependent employer does not have to make these additional attestations if:

  • The H-1B beneficiary is being paid at least $60,000/yr, OR
  • The H-1B beneficiary holds a master’s degree (or higher) in a field of study related to the position

(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:

  • Paying the higher wage (amount per the current law),
  • Making the additional attestations (keeping in mind that while full compliance is of course required, they may already meet those requirements anyway, based on past or ongoing recruitment efforts),
  • Structuring their workforce such that they are no longer H-1B dependent, or
  • Deciding not to sponsor H-1B petitions where the employee would not meet the exemption requirements.

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:

  1. Will the bills pass?

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.

  1. How soon will they pass?

The U.S. 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.

  1. Will this affect the upcoming April 1 H-1B cap filings?

Again, no one has a crystal ball. I think the likelihood of any of this being in place before April 1 2017 is unlikely.

  1. Will this affect only new H-1Bs or current H-1Bs as well?

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.

  1. What Should I Do?

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.