Facets of US Immigration Law- The H-1B Non-Immigrants

I wrote when the Trump administration took over and daunted to revamp the already intricate immigrtion law framework of the USA, in many aspects and especially with respect to the H-1B non-immigrant status which is pivotal to Indian diaspora already working in the US and also for those aspiring to work there in future.

I have had a unique experience with the US Immigration Law. Firstly, I myself have gone through the whole process of securing a F-1 Student status to be able to study the Master of Laws programme at the University of Illinois, College of Law, then once I finally got there, I choose US Immigration Law as one of my subjects during the Fall 2015 semester as it seemed to be intriguing to actually study it while being on a non-immigrant visa myself and my interest has grown over the years. It was also a interesting time for the subject since the presidential elections were just round the corner and this was a major issue in all the debates & campaigns. Finally after completion of my masters degree I actually practiced US Immigration Law and handled many non-immigrant and immigrant visa issues.

I take online consultations, in case you have any doubts, queries or concerns regarding your US immigration issues please send me a e-mail on raunakgb@gmail.com

The link to the pdf version of this article is at the end of this article.

On November 8, 2016, two unforeseen events took place, one in the western hemisphere and another here in the east. In India, Prime Minister Narendra Modi announced demonetization or remonetization of the erstwhile Rs. 500 and Rs. 1000 currency notes; and in the United States, to the surprise and dismay of many, Donald Trump became the 45th President elect. Both these events instilled a mix of shock and surprise for their respective effects.

The presidential campaign of Donald Trump hinged on his slogan to “Make America Great Again” and in this regard one of the primary subjects discussed widely during the presidential debates was to overhaul the Immigration law, with respect to the security of their national borders and to secure the skilled jobs for American citizens. With regard to immigration, after the president elect took oath on January 20, 2017 as the 45th President of the United States (POTUS), he signed an Executive Order within one week, on January 27, 2017, titled “Protecting the Nation from Foreign Terrorist Entry into the United States”, which, even though enforced initially, failed to sustain the judicial review. So another updated one was signed on March 06, 2017 which was to become effective on March 16, 2017. But this also was challenged and has been stayed.

The Executive Order essentially imposes a travel ban on six Muslim dominated countries namely- Iran, Libya, Somalia, Sudan, Syria, and Yemen for a period of 120. However both the orders faced judicial as well as public backlash and are challenged in various federal judicial forums across the US and both failed to sustain the initial scrutiny of the judiciary and are sub judice in the higher judicial forums.

For the Indian diaspora who are presently working in the US and those who are in the process or aspire to work there in the future, the transition of the office of POTUS to Donald Trump created worry and uncertainty over the H-1B program which is likely to undergo changes under the Trump administration as mentioned time and again in his speeches. The H-1B program is available for US companies to employ foreign workers in the US for ‘specialty occupation’ and the Indian IT companies are its biggest beneficiary. According to the 2016 report by the US Department of Homeland Security, 71 percent of H-1B recipients were from India in 2015. China comes in second, accounting for approximately 10 percent of H-1B recipients. Thus any policy change with regards to the H-1B program would impact the long standing practice of Indian companies petitioning for their employees to work in the US. The law governing and regulating all aspects of US immigration is the Immigration and Nationality Act (hereinafter ‘INA’) of 1952. The present article discusses the existing practice, basic procedure of the H-1B program and the changes that have or might come in the near future.

Immigrant and Non-Immigrant status

The most basic distinction in US immigration law is between citizens and aliens (non-citizens are referred to as aliens).  The law provides many different kinds of permissions for aliens to enter and stay in the US for various different purposes. If a person has lawful permission to be in the US, they are said to have an immigration status. The visa is merely a travel document; it is permission for a person to come to the US but the status and duration of stay is determined at the port of entry.

There are broadly two categories of aliens entering the US (i) non-immigrants- an authorized alien whose stay in the US is limited by time and purpose and (ii) Immigrants- also known as LPRs (lawful permanent residents) or “green card holders”, LPRs are aliens who have been given permission to live and work in the US indefinitely.  Most authorized aliens who are not LPRs are in some non-immigrant status.  There are many kinds of non-immigrant status; H-1B, L-1A, F-1, and J-1 are examples. The most common status is B-2 visitor status.  The main criteria for B-2 status are that one’s stay is limited for 6 months, and one is in the US for “pleasure,” and not to work. The alien would violate and lose their B-2 status if they stay past the allotted time or work during their permitted B-2 stay.

The H-1B Non-Immigrants


The H-1B program covers the non-citizens entering the US temporarily to provide services in a “specialty occupation”, the INA defines the term specialty occupation under § 214(i)(1) “…the term “specialty occupation” means an occupation that requires—

  1. theoretical and practical application of a body of highly specialized knowledge, and
  2. attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

In other words a ‘specialty occupation’ is one which is a professional position requiring the minimum of a bachelor’s degree in a specific field for an entry level job in that position.

The Immigration Act of 1990 established numerical limitations on the H-1B nonimmigrant classification to provide US employer’s access to foreign skilled workers while ensuring worker protections. The H-1B program was initially limited to 65,000 per fiscal year (FY). The cap to this numeric limit was reached for the first time in 1997 and again in 1998 which was indication of the increase in demand for skilled workers in the US. In October 1998, the 105th Congress enacted the ‘American Competitiveness and Workforce Improvement Act’ of 1998 (ACWIA). ACWIA temporarily increased the H-1B cap to 115,000 for FY 1999 and FY 2000 and to 107,500 for FY 2001. As demand continued to grow, the 106th Congress further passed ‘The American Competitiveness in the Twenty-first Century Act’ of 2000 (AC21) temporarily raised the H-1B cap to 195,000 for FYs 2001, 2002, and 2003, while exempting certain H-1B workers from the numerical limits. Starting in FY 2004, the H-1B cap was reduced back to 65,000 per fiscal year.

On December 8, 2004, the 108th Congress passed the Omnibus Appropriations Act for FY 2005, which contained the H-1B Visa Reform Act of 2004, and made several changes to the H-1B program. With regard to the numeric limit it provided that up to 20,000 petitions filed on behalf of aliens who had earned a master’s degree or higher from a U.S. institution of higher education would be exempt from the numerical cap. Thus the existing numerical limit is 85,000 i.e. 65,000 plus 20,000 for beneficiaries who attain a master’s degree in the US as introduced by the H-1B Visa Reform Act of 2004. These are allotted by the USCIS using computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. Every year in April, the USCIS starts accepting the new H-1B quota subject cases for first five business days.

The procedure to file an H-1B is fairly cumbersome. Pursuant to § 214(c) of the INA, a US employer availing the H-1B program is required to file a petition with the Secretary of Homeland Security [US Citizenship and Immigration Services (USCIS)] on behalf of an alien worker (the beneficiary). The petition must first be approved by USCS before a visa is granted or an alien is provided non-immigrant status, after this the visa is obtained at a US Consulate outside the US. First and foremost, the US employer must file for a Labor Condition Application (LCA) with the Department of Labor (DOL) and then petition at the USCIS once the LCA gets certified. In the LCA, the employer has to provide the exact work location, duration of employment and the salary offered, which must be equal to or greater than the Prevailing Wage prescribed by the DOL for that specialty occupation and the specific work location.

To qualify as a specialty occupation, the position must meet one of the following requirements: (1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position; (2) the degree requirement is common to the industry in parallel position among similar organization or alternatively the employer can show that the position is so complex or unique that it can be performed only by an individual with a degree; (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Further, in order to perform services in the specialty occupation, beneficiary of H-1B must meet one of the following criteria: (1) hold a US bachelor’s or higher degree as required by the specialty occupation from an accredited college or university; (2) possess a foreign degree equivalent to a US bachelor’s or higher degree from an accredited college or university; (3) have the required license to practice the occupation in the state where the employment is sought; or (4) have education, specialized training or progressive experience that is equivalent to completion of a US bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The H-1B criteria is slightly restrictive, these provisions are to ensure that the position and the applicant’s education must match. So for instance, a computer professional would need a 4 years bachelor’s degree (US bachelor’s degrees are all 4 year duration) in computer engineering. It may still be possible to qualify without the specific degree if the individual has experience in the field, three years of experience equates to 1 year of an equivalent US degree and the law requires a US Bachelor’s or equivalent in a specific field required for the position.

When the LCA is certified and the petition is filed with the USCIS, the sponsor company receives the approval for the respective beneficiaries if the H-1B is allotted. The approval notice for H-1B non-immigrants grants a period for up to three years to be admitted to the US and is extendable to a maximum authorized stay of six years. If there is any material change in the employment during the period of authorized stay, for example if there is a change in work location, an amendment petition has to be filed. The term can be extended beyond six years period by applying for an immigrant petition for lawful permanent residence under the Employment Based (EB) immigration categories which involves a different procedure. During the lengthy time period that it takes for the Immigrant process (i.e. Green Card) to be completed, the H-1B workers are permitted to keep extending their non-immigrant H-1B status for as long as it takes.

Changes to the H-1B law

As mentioned at the start, the Trump Administration intends to make changes in the H-1B laws to protect US workers. What exactly these changes would be are not yet know but there are some changes that have been notified recently by the USCIS. On March 3, 2017, USCIS notified temporary suspension of premium processing for all H-1B petitions, thus the US petitioner can no longer file for Premium Processing of the H-1B applications which was essentially an expedited adjudication that could be requested by paying an additional $1225 apart from the regular application fees.

Later, on March 31, 2017 the USCIS through a Policy Memorandum notified that an entry-level computer programmer position may not qualify as a position in a specialty occupation. Though this policy guideline speaks only in respect of computer programmers, there is a possibility that other occupations also would not be considered ‘specialty’ if a ‘Level 1’/ entry level wage is offered. There is an anticipation that stricter adjudications, more audits & investigations will make things more difficult for H-1B employees. 

Probable changes-

Decrease in the existing numeric limit: As discussed earlier, at present the maximum number of H-1Bs is 85,000, but in the near future there might be a drop in the annual quota and a merit based system could be introduced instead of selection by the lottery system.

Revocation of H-4 EAD: H-4 is the non-immigrant status granted to the dependents of an H-1B beneficiary, as a general rule they are no allowed to work however certain eligible H-4 dependent spouse can apply for work authorization, commonly referred to as H-4 EAD (employment authorization document). This was introduced by the Obama administration in February 2015 with the objective to retain skilled foreign workers in the United States. There has been lot of speculation about what will happen to H-4 EAD rule, although nothing has changed as of now, there is a possibility that it might be revoked.

Higher salaries: There have been legislative bills introduced in the House & Senate that increase the minimum salary payable to an H-1B worker to $100,000, even $130,000. If passed this would negatively impact the Indian IT industry.

If such changes are brought in to effect, it will increase costs for US companies to hire foreign workers and thus make it less viable for them to sponsor these H-1B petitions.

Article link- https://drive.google.com/open?id=0B1i96oKlJ2AGalhhSUJ6cEdCNzQ



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