Trump's Sweeping H-1b Visa Regulatory Changes

The Trump Administration’s sweeping regulatory changes to the H-1B visa were published last week. Prevailing wage has increased across all occupations and locations; this increase took effect on October 8th. Barring a court injunction, the other changes will take effect on December 7th.

Below are the additional key changes:

Specialty Occupation

• The definition of a “specialty occupation” has been amended, and now states that there must be a direct relationship between the required degree field(s) and the duties of the position:

  • General degrees in engineering, liberal arts, business, etc. without further specialization or explanation are not sufficient to meet specialty occupation.

  • In cases where the petitioner lists degrees in multiple “disparate” fields of study as the minimum entry requirement for a position, the petitioner must establish how each field of study is in a specific specialty providing “a body of highly specialized knowledge” directly related to the duties and responsibilities of the particular position.

  • Where a position may allow a range of degrees, and apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.

• A bachelor’s degree in a specific specialty or its equivalent must be a minimum requirement for entry into the occupation in the United States by showing that the required degree is always:

  • The requirement for the occupation as a whole,

  • The occupational requirement within the relevant industry,

  • The petitioner’s particularized requirement, or

  • Because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position.

Third-Party Worksites

• The definition of “worksite” has been amended to “the physical location where the work is actually performed by the H-1B nonimmigrant.”

• “Third-party worksite” has been defined as “a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.”

• A 1-year maximum validity period has been set for all H-1B petitions in which the beneficiary will be working at a third-party worksite. This applies to all H-1B petitions where any identified worksite is a third-party worksite, not just the primary worksite.

Employer-Employee Relationship

• The definition of “United States Employer” has been amended by:

  • Striking the word “contractor” from the definition of “United States employer." However, the deletion does not necessarily preclude a contractor from qualifying as a U.S. employer.

  • Inserting the word “company” in the general definition.

  • Expanding upon the existing requirements by requiring that an employer must engage the beneficiary to work within the United States and have a bona fide, non-speculative job offer for the beneficiary.

• At the time of filing, the petitioner must establish that a bona fide job offer exists and that actual work will be available as of the requested start date.

• "Employer-employee relationship” has been redefined as the “conventional master-servant relationship as understood by common-law agency doctrine.” USCIS will look at whether the employer actually exercises that right to control.

• Petitioners filing third-party worksite petitions must submit evidence such as contracts, work orders, or other similar evidence (such as a detailed letter from an authorized official at the third-party worksite) to establish that the beneficiary will perform services in a specialty occupation and that the petitioner will have an employer-employee relationship with the beneficiary.

The Department of Homeland Security has announced that it expects approximately one-third of H-1b visa petitions to be denied under the new regulatory scheme.

Stay tuned for further updates!

Need assistance with an H-1b visa or employment-based green card? Contact us today at 415-413-8760 or theteam@huwelaw.com.

How Does the New H-1b Registration Affect My Business?

USCIS has made it official: All companies must register between March 1st and March 20th for the H-1b cap season lottery. Registration will require basic information about the company sponsor and the beneficiary, an attestation of intent to file, and a $10 registration fee. USCIS will conduct the lottery based on this registration and lottery winners will have 90 days to submit their H-1b applications.

How does this change affect my business?

This year it will be easier and cheaper to enter the H-1b lottery.

We expect that there will be many more participants in this year's H-1b lottery. The chances of any specific beneficiary winning the lottery will be lower than in prior years. Developing a good contingency plan with your attorney is critical. Your candidate may be eligible for another visa or it may make sense to start the green card process early.

You can take advantage of the lower bar to entry and register more candidates than you may have before. If a security software engineer is a critical position, consider submitting registrations for multiple beneficiaries. Remember that a beneficiary can have multiple candidate petitions. So, if there is a highly desirable candidate with multiple offers, it is worth seeing if your company's registration can be the one to win that lottery slot for them.

Join us on January 15th at 9 am for a free webinar with attorney expert Isabelle Hurtubise to prepare for the 2020 H-1b cap season. Hurtubise Weber Law specializes in employment visas and business immigration for small and early stage companies.

Need help with your H-1b application? Contact us at theteam@huwelaw.com or 415-413-8760 today.

The E-3 vs. the H-1b Visa: The Australian Advantage

The US and Australia have a treaty that, among other things, permits Australians to work in the US on an E-3 employment visa. Just like an H-1b visa, the beneficiary still needs a US company sponsor, the job must be a specialty occupation and the company must pay prevailing wage. However, the E-3 has several advantages over its H-1b cousin:

1. It is effectively always available. There is a cap, but it has never been close to being reached. So Australians can apply anytime, there is no H-1b style lottery.

2. The beneficiary can apply at the consulate. A petition with USCIS is not required, which saves time and money. (You do still need to file an LCA with the Department of Labor.)

3. There is no maximum stay on an E-3. H-1b holders are limited to six years total. While an E-3 approval is good for two years, there is no limit on the number of extensions you can file. Extensions can be filed in the US through USCIS or by a return visit to the consulate. (Although at some point, the officer may question the beneficiary's required nonimmigrant intent.)

4. The spouse can work. After entering on an E-3 dependent visa, the spouse can apply for general work authorization. This is a major benefit to your employee.

So, is there ever a reason to file for an H-1b for an Australian? Sometimes, if the company is planning on sponsoring a green card. An H-1b is a dual intent visa and allows for international travel during a short time during the green card process when an E-3 visa holder could not leave the US. Each H-1b is good for three years rather than two, which means less frequent renewals. But these small advantages are often outweighed by the benefits of the E-3 visa.

What to know more about how to hire an Australian citizen? Contact us at 415-496-9040 or theteam@huwelaw.com for a Free Employer Consultation.

H-1b Basics for Prospective Employees

H-1b season is coming! If you are a prospective employee, here is what you need to know:

1. You need a U.S. company sponsor. Every H-1b petition must be filed by a U.S. company with a Federal Employer Identification Number (FEIN). That employer is committing to a specific prevailing wage as set by the Department of Labor (DOL).

2. There are a limited number of new H-1b visas issued each year. USCIS accepts petitions only during the first week of April. Less than half are selected for further consideration through a random lottery system.

3. The job must require a minimum of a U.S. bachelor's degree in a specific field. The beneficiary must also possess the equivalent of a U.S. bachelor's degree, but the key is that the job itself must require a degree. This is determined by the complexity of the job duties, past case law, and the strength of your attorney's advocacy.

4. The employer must pay prevailing wage. Prevailing wage is determined by the DOL based on the Standard Occupational Classification (SOC) Code and location of the worksite. Similar SOC codes can have different prevailing wages, even within the same city.

5. An H-1b transfer is just a cap exempt new H-1b petition. The current administration gives no deference to prior H-1b petition approvals. Each petition stands alone on its own merits.

Want to know more? Need other options? Contact us at theteam@huwelaw.com or 415-496-9040 today.

Cheaper Than a Headhunter: Hire an Immigration Lawyer

According to this recent Time Magazine article, more and more tech companies are choosing to grow their businesses in Canada rather than in the U.S.: https://bit.ly/2k5AzRO

Why is that?

U.S. businesses are having a hard time remaining competitive and hiring the best talent. Employment-based immigration to the U.S. is complex and restrictive, and requires a deep understanding of U.S. law and policy. Employers often feel forced to undertake costly and time-consuming searches for potential employees who are already U.S. citizens or permanent residents because they do not feel competent to navigate our immigration system.

A good immigration lawyer is necessary to recruit the very best employees, wherever in the world they may happen to be.

Hurtubise Weber Law can help. We offer a complimentary call for employers looking to explore their options. Contact us today at 415-496-9040 or theteam@huwelaw.com to learn more.