Houston, TX (Law Firm Newswire) March 19, 2018 - In November 2016, the U.S. Citizenship and Immigration Services (USCIS) published a final rule meant to modernize and improve regulations relating to employment-based immigration.
The final rule's purpose was to assist U.S. employers to hire and maintain highly skilled workers who are approved employment-based immigrants and are waiting to become permanent residents. The rule also aimed to clarify and improve longstanding Department of Homeland Security (DHS) policies and practices, grace periods and other issues in regard to immigrant business and non-immigrant visas. The rule went into effect on January 17, 2017.
“While this mostly sounds relatively straightforward,” said noted Huston immigration attorney, Annie Banerjee, “a wrench got thrown into the works when USCIS issued a memo on March 31, 2017 stating they do not believe that a Level I wage for computer professionals does not qualify those workers as ‘professional employees.’”
March 2017 is the month where businesses prepare to file new H-1Bs. The yearly quota for new H-1Bs is 65,000 plus 20,000 for personnel educated in the United States, making a grand total of 85,000 visas available. The problem is that over 200,000 people apply, which means a lottery is held. An individual may file six months prior to the government year, which starts October 1. Thus, most petitions for an H-1B visa are mailed March 31 in the hopes the application reaches USCIS on or by April 1.
The problem with the instruction memo is that those wages are set by the Department of Labor (DOL), not by USCIS, and thus the memo is beyond the DOL’s legal power or authority. Furthermore, to have this opinion for one particular industry niche violates the law, and the memo itself is neither backed up by a notice or a comment period. “And that is in violation of the 14th Amendment,” added Banerjee. The consequence of the memo was that a large volume of consulting company jobs, picked in the lottery, were denied, wasting the quota numbers.
Furthermore, following the president's “Buy American, Hire American” executive order, the administration began to review the H-1B visa program. The current administration may not be entirely correct in its approach. Insisting that H-1B computer consulting positions should be paid more in order to ensure that U.S. employers get priority in the hiring process while well intended, may not be economically beneficial.
Law Offices of Annie Banerjee
131 Brooks Street, Suite #300
Sugar Land, Texas 77478
Phone: (281) 242-9139