H-1B AFTER THE ELECTIONS
In the last couple of weeks, lots of clients have expressed their fears about their legal situation. It’s true that those fears are worsening by the amount of discussion on both sides of the spectrum but some of those fears are legitimate. Here are the most frequently questions I have been asked.
CAN THE H-1B BE CANCELED?
The short answer is yes. But before going any further, you should know how laws are passed. As I mentioned before, in my post “after the elections” link here …. (you can also see a video here ….) Laws are discussed, debated and approved in Congress. Most laws are not applied immediately, they are given a specific future date when they start to take effect.
The president´s job is to make sure that laws and regulations are properly applied, but the president himself doesn’t make laws.
What does this mean? Well, what it means is that any law takes some time to pass so we can assume that controversial laws such as those regarding the abolishment of the H-1B, would take even longer. Remember that a lot of companies depend on hiring foreign labor because they can’t find enough “qualified workers” for themselves. This is especially true for companies in the tech world.
Although he has never been specific (or clear) about it, here is what we know from Donald Trump and his opinion on H-1B
Criticism against the misuse of H-1B visas: Referring to lawsuits by American employees against some US companies, he said that he will not allow Americans to be replaced by foreign workers.
Disney was among those companies. Two former Disney World employees filed lawsuits in federal court against. They alleged that the companies conspired to replace American workers with cheaper foreign labor brought to the US on H-1B visas.
Buy American, hire American: At a rally in Iowa Mr. Trump said: “My administration will follow a simple rule — buy American, hire American. Years earlier we used to take pride in buying things ‘Made in America’. We love our companies, but we don’t love them when they go out of our country. There will be consequences,”
WHAT IF AM ALREADY AN H-1B? WILL THERE BE ANY CONSEQUENCES FOR ME? WHAT WOULD THE CONSEQUENCES BE?
This is the same as the previous question. The answer, again, is yes, the whole visa program can be eliminated. But, remember that laws can be approved at any moment, not only when a new president comes to Office.
Another possibility lawyers are talking about nowadays is the possibility of reducing the number of visas below the current 65,000 cap per year. There is a precedent for this. In 2004 the cap was reduced from 195,000 to the current number. Some people believe that this is the most plausible alternative to a total dismissal of the program, since this will still allow to hire foreigners while reducing the number to a minimum.
Alternatives to sponsoring through H-1B. After a case filed against the USCIS brought by two firms: Tenrec Inc., a web development firm and Walker Macy LLC, a landscape architecture, there is a pending decision that could be crucial on this issue. Both companies wanted to hire foreigner specialists but those specialists were not picked through the lottery. Those companies alleged that the USCIS improperly administers its H-1B specialty occupation nonimmigrant visa worker program in violation of federal law. Defendants move to dismiss Plaintiffs’ complaint for lack of subject-matter jurisdiction. The consequence of that decision could challenge everything we have discussed before, for example: granting companies power to decide who they hire, creating a different visa…
WHAT DO WE KNOW RIGHT NOW?
Holding a master’s degree increases your chances to obtain an H-1B. If you are trying to get an H-1B, you probably have heard of “the lottery”. Since there are more applicants than visas available, a machine selects people randomly among all the applicants. The USCIS grants 65,000 visas every year for people with higher education (college degrees and higher) and an extra 20,000 visas for people with master’s degrees or higher.
This is how it works. The applicants with only a college degree are sent to an address while the people with a master’s degree go to another one. Among all the applicants with master’s degrees, a lottery selects 20,000 people. Since there are less applicants with master’s degrees, the chances of getting selected are higher. After that, those who were not selected go to the general cap of 65,000 people and they would have to go through the other lottery.
So, if you are a company, hiring someone with a master’s degree will increase your chances.
Contacting your lawyer early will increase your chances to succeed. We cannot emphasize this enough. This is true because a lot of people miss their opportunities because of the lack of paperwork. Keep in mind that although the USCIS tells you all the papers must be submitted by April 1st, in our experience clients who start early tend to have less difficulties. Most companies (and foreign workers) tend to overlook the importance of getting things done early.
There are many things that surface once you start the process:
– Documents that you didn’t think you would need but you definitely have to have. If the internet can be a source of knowledge, sometimes it can confuse people, more than anything else. A lot of people tend to come with pre-conceive ideas of what they have to bring, based on what they have read, heard from family and friends, or watched on T.V. Each person is different and you might need different papers or a different approach.
– Your country’s bureaucracy. Some of our clients have to wait for months to get some documents from their country.
As usual, I hope this is useful, and, again, don’t hesitate to contact our Law Firm if you want to know more about the process.