Know the Law: H-1B Visa Changes Raise Questions

Shiva Karimi
Director, Corporate Department, and Chair, Immigration Practice Group, and Managing Director Boston Office
Published: Union Leader
January 15, 2018

Q: There have been many changes to immigration policy recently. How will H-1B visas be affected this upcoming year?

A: During the last H-1B cap season, we experienced unprecedented changes in the way USCIS handled H-1B visas.  Based on our experience from 2017, we hope to predict some of the changes we can expect this year.

During the past cap season, there were an unusually high proportion of Requests for Evidence (RFEs).  This came from increased scrutiny as to established H-1B requirements, as well as issues raised for the first time in history. None of these issues resulted from changes in H-1B regulations. Employers seeking to obtain H-1B visas should be aware of this shift, and be prepared for the process to be more cumbersome than it typically would be.  Even where similar H-1B visas have been approved in previous years, it is possible new visa petitions  could be heavily scrutinized or even denied. Last year, the government went so far as to issue a Policy Memorandum stating that visa extensions of previously approved visas would be adjudicated anew without deference to prior approvals.  Therefore, even visa extensions are receiving this level of scrutiny.  Last year, the Premium Processing service, which allows filers to pay an additional fee of $1,225 for 15 day processing, was also suspended during the cap filing period.

We have taken measures to combat these trends, and have succeeded in obtaining many H-1B approvals, as well as alternative visas for our clients who could not obtain H-1B visas.  We will continue to keep up with current trends and formulate creative solutions to maximize our chances of success.

The optimal time to begin the H-1B process for a cap-subject case is in January so that the petition will be ready to file by the April 1 filing date.  It is more important than ever to start early so there is time to carefully review all eligibility requirements before filing. USCIS will heavily scrutinize whether jobs qualify as “specialty occupations”. USCIS will also put some emphasis on wage levels that are being paid to foreign nationals.  These are just some of the issues that we predict will be difficult during the upcoming cap season.

Most H-1Bs are still successful, and the regulations have not changed. We continue to encourage employers in need of skilled workers to utilize the H-1B program. However, being aware that visas are handled differently than they have been in the past is important.