Economic RealitiesEmployers shouldn’t be dissuaded by the recent H-1B changes—they just need to know what to expect and how to best navigate this new terrain.
For decades, the H-1B visa for highly-skilled workers has been the most popular long-term work visa in the United States.
But, with uncertain immigration terrain in place as a result of the 2017 “Buy American, Hire American” Executive Order (BAHA), employers and foreign nationals are justifiably concerned about their ability to obtain and retain H-1B work authorization, while employers additionally grapple with increasing costs in H-1B processing. In this final installment of our three part series, we examine how U.S. Citizenship and Immigration Services’ (USCIS) enhanced scrutiny of H-1B petitions impacts the finances of the employers who rely on these highly skilled workers and even the attorneys who represent them.
This month, we are pleased to share the insights and guidance of Melissa Calhoon Jones, counsel for the highly regarded law firm of Tydings & Rosenberg LLP, located in Baltimore, Maryland. Ms. Jones, chair of the firm’s employment and labor law group, counsels small and medium-sized companies on labor, employment, and immigration matters. Armed with decades of legal experience, Ms. Jones counsels employers on work authorization compliance issues. She assists employers with the process of obtaining employment-based, non-immigrant status and permanent residence status for eligible foreign nationals. Ms. Jones is also a frequent speaker on, and author of numerous articles about, employment law matters.
The times they are a-changin’.
“In the past, it wasn’t hard to get an H-1B approved,” says Ms. Jones. “While there are never any guarantees in immigration work, as long as you filed a complete and accurate petition, you could reasonably expect that it would be granted.” But with new levels of scrutiny placed on every application by USCIS and unheard of demands for Requests for Evidence (RFEs), this is no longer the case.
Since 2017, computer programmers, once considered as highly skilled as a matter of agency policy, are under particular scrutiny due to alleged abuses in the tech industry; however, they are not the only occupation to be challenged for “highly skilled” H-1B status. “It’s a particularly troubling scenario for entry level workers, who often seem to be the focus of the RFEs,” says Ms. Jones. “In this new environment, you’re almost assured pushback if the H-1B applicant is being hired for an entry-level position. USCIS seems to assume that it does not take a ‘highly skilled’ worker to do an entry level job regardless of the academic knowledge required to perform the job duties.”
Preventative measures have their advantages.
Ms. Jones notes that a major challenge in today’s H-1B petition process is how to best present the evidence during the initial filing to (attempt to) preempt an RFE. “We strive to address potential areas of concern the adjudicator may have in an attempt to preclude an RFE. We’ve had success with limiting the number of RFEs we receive, but USCIS comes up with surprising ways to challenge the evidence submitted. It has become a much more complex process,” she says.
There’s a lot at stake for everyone involved. The time and level of commitment involved in this new H-1B landscape is substantial, advises Ms. Jones:
- Everything has a price tag. There are several fees involved in a standard H-1B submission. Employers are required to pay a number of mandatory fees, including a $460 filing fee, a $500 anti-fraud fee, and a $1,500 education and training fee for an initial H-1B filing, plus attorneys’ fees and costs. Due to a tremendous backlog resulting in USCIS taking nearly a year to process a standard H-1B petition, many employers opt to pay an additional $1,410 for premium processing, so that a case will be processed in 15 business days (barring any RFE’s). “Employers should expect to easily spend several thousand dollars per H-1B petition submission,” cautions Ms. Jones. “In addition, the need to submit more detailed petitions increases the work hours expended by the employer on the petition, requiring a commitment of both time and money.”
- Immigration law firms are feeling the pinch. Historically, flat rate billing has been the typical form of invoicing for H-1B petitions, rather than standard hourly billing. Given the high volume, standardized application format, and historically modest number of RFEs, it’s made sense in the past for many immigration practitioners, and has provided a level of budgetary certainty for employers. But, with RFEs and denials more than doubling in recent years, the additional hours required by legal staff responding to agency demands have increased dramatically. As a result, in many RFE cases, the established flat rate may be inadequate to cover the attorney hours required to process an H-1B case to completion. Because RFEs are not issued in every case, however, and because not every RFE requires the same volume of additional work in preparing the response, practitioners struggle with developing a fee structure that can adapt to unpredictable agency demands.
- Beneficiaries are concerned for their futures. Increased uncertainty in the H-1B process affects current and prospective H-1B employees whose dreams of productive working life in the United States are impacted by changes in governmental policy and procedure.
You can navigate the new H-1B landscape successfully. If you’re among the thousands of employers who rely on H-1B workers, or are considering filing a petition next year, Ms. Jones offers the following advice:
- Understand what you are getting into. H-1B work authorization has a limited duration of six years. An initial H-1B is typically sought for a period of three years, with extension petitions filed to maintain H-1B status. If an employee is promoted or changes work locations, amended petitions may be required before the change can take effect. This creates a continuing cycle of petition filing and adjudication, far beyond the initial filing. “H-1B status may only be extended past the six year period if the employer has taken certain steps to sponsor the employee for permanent residence,” says Ms. Jones. “Employers should be aware that the ultimate goal for most H-1B employees is permanent residence, which is itself a costly, long-term project. Be very clear with the H-1B employee (or foreign student) about your willingness to sponsor, and be prepared for that individual to seek employment with another H-1B employer if you are not.”
- Beware the snowball effect of the OPT gateway. Many employers end up in H-1B processing because they have hired a talented foreign student based on work authorization the student has previously obtained through their college or university. Initially available for 12 months (and eligible for a 24 month extension for students with degrees in STEM fields), work authorization under the Optional Practical Training (OPT) program provides the student with an employment authorization document that they can use for employment with any U.S. employer. While there are regulatory requirements the employer must meet to qualify for the STEM OPT extension, there is little financial outlay associated with this category of employment. Because of the limited duration of OPT/STEM OPT, however, employers soon find themselves submitting H-1B petitions to retain foreign students beyond the OPT/STEM OPT period, and – consequently – entering into the cost cycle of petitions, extensions, and amendments, and, perhaps, sponsorship for permanent residence. “Because employers can hire OPT/STEM OPT students with little fanfare, they are often surprised by the complexities of the H-1B process and the expectations of the employee,” says Ms. Jones. “Employers should consider the long term ramifications of hiring foreign students under OPT and STEM OPT programs.”
- Get the details upfront. The dramatic amount of increased scrutiny under the Trump administration is driving up the cost of processing. “For employers who are engaging counsel for the H-1B petition, due diligence is important,” says Ms. Jones. “Employers should have a clear picture of their responsibilities and time commitment in developing evidence to support the H-1B petition and RFE responses. Employers should also talk to counsel about what the options are for continuing employment if the H-1B petition is denied.”
“By being forward-thinking and adequately prepared when petitioning for H-1B status, it remains a viable means for securing work authorization for highly skilled workers in an underserved labor market,” says Ms. Jones.
Is your organization prepared for H-1B visa success? The HR Team is here to offer our guidance and helpful tools to facilitate your petition processes with your outside counsel. Please contact our knowledgeable professionals to learn more.
About The HR Team: Founded in 1996, The HR Team is a Maryland-based human resources outsourcing firm committed to developing strategic, customized solutions that respond to the unique needs and cultures of organizations of all types and sizes. Available as a one-source alternative to an in-house HR department or on an à la carte project basis, the company’s flexible service models address the full spectrum of HR needs that many organizations struggle to address. The HR Team helps clients achieve their highest level of success by providing value-driven human resources services that leave them time to focus on what they do best: directing business growth and profitability. Headquartered in Columbia, Maryland, the firm serves all of Maryland, Washington, DC, and Virginia. To learn more about The HR Team, call 410.381.9700 or visit https://www.thehrteam.com/.
