Trends in H-1B Visas: More Restrictions

By Mojgan Hosseinzadeh

Since President Trump has taken office in 2016, the administration has changed aspects of the H-1B visa program to limit its scope.

The United States Citizenship and Immigration Services (USCIS) is currently working to alter the H-1B program’s mission statement by redefining:

• Eligibility criteria, to protect US workers and wages
• Which jobs qualify as “specialty occupations”
• The employer-employee relationship
• Which foreign nationals are accepted – only the best and the brightest

Impact of Recent H-1B Program Changes

USCIS and the current administration have already altered H-1B policy in ways that impact foreign nationals and their employers. Some key changes include:

• Reducing Requests for Evidence (RFEs)
• Continued suspension of premium processing
• Eliminating the H-1B cap gap for F-1 visa-holders

Reducing Requests for Evidence (RFEs)

USCIS  recently issued a policy allowing officers to deny petitions without first seeking additional evidence through a Request for Evidence (RFE). Previously, USCIS stated that an RFE should always be issued, except when applicants did not have legal grounds to receive an immigration benefit.

This change places the burden on employers to carefully submit complete H-1B applications. Any missing piece of evidence can lead to a denial as of September 2018. This policy change makes the guidance of an experienced immigration attorney essential.

Suspension of Premium Processing Continues 

USCIS has decided to extend and expand the suspension of premium processing for certain H-1B cases. Both the extension and expansion are expected to remain in effect until February 19, 2019.

The suspension affects:

• Pending FY 2019 H-1B cap cases, including change of status
• Most H-1B petitions
  • Changes of employer
  • Extensions
  • Amendments

This extended premium processing suspension may delay a foreign national’s ability to travel internationally before their H-1B cap petition is approved.

If a foreign national travels while their H-1B change of status request is pending, their status request will be considered abandoned. They would have to take extra steps to gain H-1B status after the case is approved. This could potentially delay their return to the US. These delays occur even if the foreign national’s H-1B petition is approvable.

F-1 Visa-Holders and the Right to Work

Previously, F-1 students could be employed after their work authorization ended, provided they had an H-1B petition pending. This was known as an “H-1B cap-gap extension.”

As of October 1, 2018, these individuals are no longer authorized to work under the new unlawful presence policy. They will start accruing unlawful presence in the US if they continue to work.

However, F-1 students may remain in the United States with a pending change of status petition without accruing unlawful presence. They simply cannot violate terms of their visa, like working without authorization.

F-1 students may continue to work if they have a pending change of status H-1B petition and a valid Employment Authorization Document (EAD) that extends past September 30, 2018.

Conclusion

The Trump administration and USCIS’s recent H-1B policy changes will have a significant impact on H-1B fiscal year 2019 approvals. Employers and prospective H-1B visa holders should seek the advice of a trusted attorney to be sure they comply with new policy.