With a record-low unemployment rate and a continued skills shortage, US employers are having to increasingly rely on the global talent pool to fill highly skilled positions. US universities and the contingent workforce have historically provided a steady pipeline of highly skilled workers to meet employers’ needs. However, since President Trump’s April 2017 Buy American and Hire American Executive Order and the subsequent changes to immigration policies and procedures, this worker sourcing strategy has become less reliable. Here are some areas of concern.
Foreign student enrollment. Foreign students obtain an F-1 visa to study at a US university. Upon completion of their degree program, an F-1 graduate can apply for one year of Optional Practical Training (OPT) to gain hands-on experience at a US firm. Those graduating in a STEM field may qualify for an additional twoyear OPT period. The OPT program is a pipeline to the H-1B visa program. The Trump Administration initially indicated it planned to overhaul the STEM OPT program, limiting its use and duration. While this has been removed from the regulatory agenda at this time, the administration may still propose to rework F-1 practical training. The resulting uncertainty of the program’s future likely had a chilling effect on enrollments in the US. Meanwhile, F-1 students continue to seek sponsorship for the H-1B visa in hopes of being selected before their OPT validity expires.
Heightened USCIS scrutiny. In recent years, demand for new H-1Bs has greatly exceeded the 85,000 available each fiscal year, which has resulted in the use of a “lottery” selection process that, in the past, was the biggest hurdle for companies to surpass. Now, lottery winners face months of scrutiny, anxiously awaiting the final decision from USCIS.
Trump’s executive order directed government agencies to reserve the H-1B visas for the most-skilled and highly paid beneficiaries and to adopt extreme vetting and heightened screening protocols. At USCIS, this led to a significant increase in Requests for Evidence, or RFEs, and denials of H-1Bs; later, the agency rescinded its long-standing policy of granting deference to prior approvals in adjudicating visa extensions, leading to a 40% increase in RFEs between fiscal years 2017 and 2019, and 17.2% fewer approvals from initial filings.
US Citizenship and Immigration Services is particularly concerned with H-1B requests with third-party placements. In March 2018, USCIS issued guidance on new requirements for such petitions; the evidentiary documentation is quite onerous and is being imposed for the entire validity of the H-1B period. Today, the H-1B climate remains uid, making the OPT and contingent workforce pipeline of workers a less viable source of talent for US workers if they do not obtain an employment visa.
Increased enforcement initiatives. Meanwhile, the US Department of Labor has increased enforcement initiatives to combat fraud and abuse in employment-based visa programs such as the H-1B. The DOL revised the Labor Condition Application to require greater data points to be listed about H-1B employers and end-client sites where the H-1B worker may work. The DOL has made information about H-1B filers public, including the names of secondary entities where H-1B workers are placed. This broader collection of data and increased transparency will likely lead to increased worksite visits by USCIS Fraud Detection and National Security, or FDNS, and higher revocation rate of H-1Bs in the event of discrepancies. In cases with more severe violations, such as fraud, FDNS could refer the matter to Immigration Customs & Enforcement for criminal investigation and prosecution. While FDNS worksite visits are not new, in today’s restrictive climate, it is critical for employers to conduct self-audits of their H-1B program to ensure they are in compliance.
However, it’s not all bad news – those with US advanced degrees now have better odds of being selected in the H-1B lottery, as USCIS revised the lottery order this year, increasing the number of cases selected for US advanced degree holders by 16%. Only time will tell what impact this may have on the pipeline of highly skilled workers available to US employers.