H-1B visa – Post-graduates from US welcome. Just don’t game the system.

- ADVERTISEMENT -

Bachelor’s degree holders from foreign countries are likely to find it hard to get an H-1B visa starting this year, with the Department of Homeland Security (DHS) finalizing new rules for this year’s filing season which gives a huge advantage to those job-seekers who have a post-graduate degree from accredited universities and some education institutions in the United States.

However, the caveat is that there is increasing scrutiny of overseas students, who are staying in the US. New rules to come into effect from next month on an ‘Unlawful Presence’ rule, will likely deport tens of thousands of students and H-1B visa seekers, if violations are detected. A court will hear a lawsuit by some colleges in March on the legality of that rule.

The new DHS rules on H-1B visas, which will go into effect on April is also likely to hit hard those H-1B applicants who have a degree from overseas and are being sponsored for beginner-level jobs, for say, in outsourcing companies. Applicants from India, who form the majority of H-1B visa applicants, will be the worst affected.

Post-graduates from the US must check whether they qualify for this new rule, or not. According to the Higher Education Act of 1965, an institution of higher education is an educational institution that is, among other things, a public or other nonprofit institution and is accredited by a nationally recognized accrediting agency or association or has been granted pre accreditation status by such an agency or association recognized for granting pre accreditation status. Under this definition, a university that is private and for-profit or that is unaccredited is not considered an institution of higher education and therefore would not qualify one for the advanced degree cap.

The new rule, which comes on the heels of President Donald Trump’s 2017 “Buy American and Hire American” executive order, will give more H-1B visas to advanced degree holders from the US.

At present, annually there are 65,000 H-1B visas allocated for a general category – which draws overseas workers, mainly from India, and another 20,000 H-1B visas, which are reserved exclusively for applicants with advanced degrees from the US.

The way the system works at present is that the USCIS lets the advanced degree cap of 20,000 gets filled up first, and then they pool the applications who didn’t make the cut from a lottery, into the general category of 65,000 visas.

Now, it’s going to be reversed. USCIS expects the rule change to result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a US institution of higher education. However, that number is likely to be even higher if there are more petitioners with advanced degrees.

Even in the fiscal year 2019, 36,324 of the master’s cap petitions actually were selected under the regular cap, leaving only 49,576 spots for non-masters petitions.

“These simple and smart changes are a positive benefit for employers, the foreign workers they seek to employ, and the agency’s adjudicators, helping the H-1B visa program work better,” said USCIS Director L. Francis Cissna, in a statement issued by the USCIS. “The new registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The change reduces the likelihood that people with just a bachelor’s degree will win in the general lottery, said Lisa Spiegel, an attorney at Duane Morris in San Francisco and head of the firm’s immigration group, speaking to the San Francisco Chronicle.

“I think we’re going to be seeing a lot of people going back to school,” Spiegel said.

Jason Finkelman, an immigration attorney based in Austin, Texas, told the Chronicle now employers will think differently about what candidates they put up for the H-1B visa.

“Everyone wants to hire the most qualified candidate they can. But if I’m an employer and I have two candidates who are equally qualified for a position, and both require me to sponsor them for a visa, I’m probably going to want to file for the one with the master’s degree because now, mathematically, I have a better chance of getting them picked,” he said.

A proposed electronic registration requirement will be suspended for now and only implemented in 2020.

The electronic registration requirement will also weed out many overseas applications, based on what the USCIS deems as acceptable or not. It stands to reason that as advanced degree holders gradually take over the number of H-1B visas allocated to them, overseas applicants are likely to be eliminated altogether in some years.

The government estimates that the electronic change would save applicants and the companies sponsoring them as much as $75.5 million in the cost of preparing and mailing applications. During the fiscal year 2019 application period, between April 2 and April 11, USCIS received 190,098 H-1B visa applications.

The new system is expected to cost about $279,000 to set up and will save the Department of Homeland Security $1.8 million over 10 years largely because the department expects to receive fewer completed applications.

Starting in 2020, under new rules, the electronic registration process would start before April 1 and would be open for at least two weeks.

Emily Neumann, a partner in the law firm of Reddy & Neumann, P.C., who had earlier noted on her popular blog post ImmigrationGirl, the likelihood of abuse of the system and fraud emanating because of the electronic registration, wrote on the new rules that the Department of Homeland Security is not amending the regulations to prohibit multiple employers from filing an H-1B cap-petition for the same beneficiary. However, these companies should not be related to each other, or under one entity.

There is, however, strong likelihood of litigation against the new rules, especially by Indian outsourcing companies.

The new rules are likely to be challenged in court by those outsourcing companies, arguing that the administration has acted outside of its authority or sidestepped the full rulemaking process, said Leon Fresco, an immigration attorney and partner at Holland & Knight LLP, to the Wall Street Journal. He added that any court issuing a restraining order against the rules taking effect April 1 “could potentially throw the whole H-1B system into chaos.”

NASSCOM, an Indian organization representing IT consulting and outsourcing firms, said that the move would shut out a needed segment of tech workers, reported Fortune.

UNLAWFUL PRESENCE MEMO

Last year, in October, several colleges filed a lawsuit against DHS issuing an ‘Unlawful Presence’ memo. The DHS proposal seeks to punish F-1 visa students who have violated the duration of their valid stay in the US, or who misused certain provisions like their Optional Practical Training (OPT), or Curricular Practical Training (CPT), either at the graduate or the post-graduate level. The ‘punishment’ would mean deporting students and barring them from re-entry into the US anywhere from three to 10 years.

The lawsuit said the proposal was unjust, that it “is intentionally designed to impose tens of thousands of reentry bars on F, J, and M visa holders each year”.

Now, a court has scheduled a hearing for March 26, 2019 to hear arguments in favor and against the preliminary injunction as well as the motion to dismiss.

Importantly, the court chose not to suspend the memo while the litigation is pending (except that the memo will not be applied to the two individual plaintiffs involved in the litigation until a decision is reached after the March 26th hearing), noted Neumann.

Recent moves by the Trump administration make it clear that while they favor legal immigration for those who have invested in the US, studied here, and are able to compete at the highest level for jobs, they also want to cut down on loopholes exploited by companies to get cheap labor, and students who game the system.