We are still helping companies and candidates obtain H-1B visas despite recent presidential administrative actions seeking H-1B reform.
President Trump signed an executive order last week calling for H-1B visas to be awarded to “the most-skilled or highest-paid petition beneficiaries.” The “Buy American and Hire American” order directs the agencies involved with the H-1B visa program to suggest reforms that make that happen.
Although the president is calling for changes to the H-1B awarding process, the current process remains in place. Companies can still sponsor new employees who are transferring from positions at other companies. And although Premium Processing has been temporarily suspended, candidates may still work on filing new H-1B petitions. We are processing H-1Bs now for many U.S. employers. We are available to represent companies seeking to hire foreign-born talent.
What Will Change?
The Hire American order will not have an immediate impact on the H-1B visa program.
H-1B specialty occupation visas are awarded by random lottery every April to qualified candidates. Demand from companies seeking H-1B visas for international hires has far outstripped the supply. Each year, 85,000 H-1B visas are available—20,000 of which are reserved for those with master’s degrees or higher. This year, U.S. Citizenship and Immigration Services (USCIS) received 199,000 H-1B petitions from employers. Last year, USCIS received more than 236,000.
Trump made clear his desire to eliminate the H-1B lottery. Calling the lottery “wrong,” Trump wants to prioritize skills and education or high wages paid by the sponsoring company in awarding H-1B visas.
Some of the agencies Trump called on to suggest changes to the H-1B program have already implemented administrative changes. Earlier this month, U.S. Citizenship and Immigration Services (USCIS) announced additional measures to crack down on abuse and fraud within the H-1B visa program.
If changes are implemented to meet the intent of the Hire American order, companies will have to find H-1B candidates with advanced degrees and pay them more.
Shifting the H-1B visa program from a lottery to a merit-based system will face little opposition from Silicon Valley companies.
The H-1B visa program has come under fire in recent years as technology outsourcing companies—many of them based in India—receive the bulk of the H-1B visas in the lottery system. Moreover, outsourcing companies have gained a reputation for paying salaries lower than those offered by U.S.-based companies for comparable positions.
Giving companies that pay high salaries priority for H-1B visas would make the cost-savings appeal of tech outsourcing firms less viable.
However, prioritizing high salaries may also have the unintended consequence of disadvantaging startups. Many startups cannot match the high salaries that more established and successful companies can offer.
Trump’s continuing calls to hire Americans make clear his intent to change the H-1B visa program and likely others. We at Alcorn Immigration Law help our clients strategize the best pathway forward in these murky times. Do not hesitate to contact us if you need assistance.