27 September 2017

UNITED STATES: H-1B petitions

The Buy American, Hire American policies from the Trump administration are expected to result in H-1B employment delays and disruptions.  

The Buy American, Hire American executive order directs the Department of Homeland Security, State and Labour to focus on increasing H-1B wage minimums and altering other aspects of the H-1B program. Recent guidance from the USCIS has instructed adjudicators to consider wages when deciding whether an offered position in fact qualifies as an H-1B specialty occupation. This has resulted in a surge of the rate of requests for evidence (RFEs) for cases involving entry-level professional positions and wages that fall into the Level 1 of the wage data of the Department of Labour. The RFEs generally have required employers to provide detailed information, including expert opinions, industry data and other evidence to demonstrate that Level 1 is the appropriate wage for the position and that the job qualifies as a specialty occupation. 

There has also been an increased scrutiny of F-1 students seeking to change their status to H-1B. RFEs that the applicants have maintained their F-1 status have been more frequently issued and also with greater specificity. A violation of F-1 rules could lead to a finding that the applicant is out of status which would require the F-1 student to leave the United States immediately.

The suspension of the premium processing for H-1B cases and the high volume of RFEs mean that the USCIS may not complete case processing by October 1, the FY 2018 H-1B cap employment start date. F-1 students who are awaiting a change of status and whose OPT expires before October 1 will be impacted the most severe as these students in the ‘cap gap’ have only received an extension of their OPT work authorization through October 1. If their H-1B cap petition will not be approved by October 1, their employment authorization will cease and they cannot resume work until their H-1B cap petition is approved.

The H-1B policies from the Trump administration are also expected to delay visa applications at U.S. consulates. The State Department has directed consular officers to consider protecting U.S. workers’ wages and employment rates in the adjudication of H-1B visa applications. This could lead to more requests for additional information about the visa applicant’s salary, qualifications and prospective employment, delaying visa issuance as well as delaying employment start dates.








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