The H-1B visa was originally conceived to enable US firms to use foreign workers to fill skill shortages in the American workforce.
In order to qualify for entry under a H-1B visa under the current system, an applicant must satisfy the following requirements:
(a) The applicant must be employed in a “speciality occupation”.
(b) The application must be supported by a petitioning employer, who offers remuneration the equivalent to the “prevailing wage rate” within the relevant State and profession and
(c) The applicant must have an offer of permanent employment in the US.
H-1B visas are notoriously difficult to obtain, due to the complexity of the “speciality occupation” requirement, the arduous nature of the “prevailing wage” requirement and the annual cap on the number of visas available, currently set at 65,000 visas.
These difficulties are compounded by the hurdles faced by petitioning employers. Under the current system, any petitioning employer deemed to be “H-1B dependant” within the meaning of the relevant legislation must make a number of attestations within the Labor Condition Application, in respect of any H-1B applicant without a master’s degree, who is being offered annual remuneration of less than $60,000 per year. The employer must promise, inter alia, not to displace any similarly employed US worker within a specified period of time and must attest that he took/will take all good faith measures to meet industry-wide standards to recruit US workers for the role in question. The attestation requirements therefore place a considerable financial burden on prospective petitioning employers.
Unfortunately obtaining a H-1B visa is set to become even more difficult. Earlier this month Rep. Darrell Issa, a Californian Republican, introduced The Protect and Grow American Jobs Bill in the House of Representatives, with the stated aim of preventing US companies from displacing US workers with lower-cost foreign professionals.
Under the proposed Protect and Grow American Jobs Act, any H-1B dependant employer offering a H-1B applicant annual remuneration of less than $100,000 per annum would be required to adhere to the additional attestation requirements, regardless of the nature of the role, the hours of employment, the general salary scales within the industry or even the geographical location within the US. In short, if they are offering a H-1B worker remuneration of less than $100,000 per year, they would be required to demonstrate that they are unable to find a US employee to fill the role. Controversially, the Bill proposes to remove the exemption from attestation requirements currently enjoyed by the petitioning employers of H-1B workers with master’s degrees.
Rep. Darrell Issa anticipates that the proposed reforms will protect the US workforce, by providing a powerful disincentive for US firms to lay off US employees in favour of H-1B workers. However, in our view, the proposed reforms are incompatible with market forces, since they will substantially increase the cost of filling skill shortages for US firms and may deter many foreign professionals with valuable skills from considering offers of employment in the US. Indeed, the proposed Bill will place a significant financial burden on smaller businesses and will undermine the very raison d’etre of the H-1B visa.
It is unknown at the time of writing if the proposed reforms will come into effect prior to the start of the new H-1B season on 1st April 2017.
As with most aspects of US immigration law, the challenges posed by the proposed reforms are not insurmountable. With meticulous preparation, a careful analysis of the facts and robust, persuasive advocacy, there is no reason why the proposed legislation should hinder your prospects of success. Call now for advice on how we can advance your H-1B visa application and potentially make your American dream a reality.
