Late to the Party, the Trump Administration Weighs in On H-1B’s With 5 Pronouncements


From the date of inauguration, January 20, 2017, to the beginning of the cap H-1B filing period was only 70 days. As the clock ticked down to the last days of March, everyone in the H-1B community including petitioners and beneficiaries breathed again as no edicts, proclamations, abolishment by fiat, new regulations, legislation or other acts of Congress were put forth to change the rules for H-1B season. This author believed that such might be the case given the tight timeline between January 20 and April 1 and the competing items on Mr. Trump’s agenda.

The probability is that legal immigration reform will take a backseat to the crackdown on undocumented immigrants as the latter is more headline grabbing and red meat to the populist base that elected Mr. Trump. As the swearing-in of the new president is on January 20th and legal immigration is the lesser concern, the upcoming H-1B season in April will likely see little change from last year's. (“What Should You Do About Your Immigration Situation in a Donald Trump Presidency,” Alan Lee, Immigration Daily, 11/14/16).

U.S.C.I.S. conducted the H-1B lottery selections on April 11 and received 199,000 H-1B petitions this year. Last year it received 236,000 during the filing period. It may well be that all the criticism about the H-1B program reduced the number of petitions filed by companies afraid of bad publicity.

The Trump machine while late to the party has now put forth 5 pronouncements on H-1B enforcement of which all should be aware since they will impact upon all H-1B filings including those in the recent cap season:

1. Executive Order, 4/18/17 “Presidential Executive Order on Buy American and Hire American” in which “the Secretary of State, Attorney General, Secretary of Labor, and Secretary of Homeland Security shall as soon as practicable and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse… Shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

(While guidance can possibly revoke or rescind prior guidance or give guidance in an unclear area, guidance can also be the subject of lawsuits where it changes prior policy without going through the Administrative Procedure Act’s requirement of notice and comment.).

2. 3/31/17 policy memorandum of U.S.C.I.S., PM-602-0142 that although the Occupational Outlook Handbook and the 12/22/00 Terry Way (former Nebraska service center director) memorandum, “Guidance Memo on H-1B Computer Related Positions” supported the computer programmer occupation as professional, the guidance is being rescinded and a new position adopted that “an entry-level computer programmer position would not generally qualify as a position in a specialty occupation because the plain language of the statutory and regulatory definition of ‘specialty occupation’ requires in part that the proffered position have a minimum entry requirement of a U. S. bachelor’s or higher degree in the specific specialty, or its equivalent.” Note 6 of the memorandum says that “If a petitioner lists a position as a Level I, entry-level position, for example, such an assertion will likely contradict the claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation. In general, a petitioner must distinguish its proffered position from others within the same occupation through the proper wage level designation to indicate factors such as the complexity of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties.”

(This is a specific attack on level I computer programmer positions, but the prelude to a general strategy to force H-1B petitioners to abandon use of wage level I in favor of higher wage levels. It is incongruous in promoting the unnatural state in which an employer may be forced into paying an unwarranted salary to hire a freshly minted graduated alien with a baccalaureate degree for an occupation that requires the particular type of baccalaureate degree – which is the sole requirement for a specialized occupation as per the H-1B rules).

3. U.S.C.I.S. press release, “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse,” 4/3/17, that U.S.C.I.S. will take a more targeted approach in making site visits across the country to H-1B petitioners and the worksites of H-1B employees, and focus on:

• Cases where U.S.C.I.S. cannot validate the employer’s basic business information through commercially available data;
• H-1B dependent employers (those who have a high ratio of H-1B workers as compared to U. S. workers, as defined by statute); and
• Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

(U.S.C.I.S. threatens through FDNS (Fraud Detection and National Security) audits to discourage the use of H-1B workers for companies that are already dependent on them in having a large percentage in their workforce, and consulting companies that send their workers to outside sites under contracts with end-users. In the other situation of employers not disclosing business information through commercially available data, H-1B petitioners should take the opportunity to update their company information in the Dunn & Bradstreet (D&B) database as U.S.C.I.S. explores that through its VIBE (Validation Instrument for Business Enterprises) program to check on organization bona fides).

4. Department of Justice press release, “Justice Department Cautions Employers Seeking H-1B Visas Not to Discriminate against U. S. Workers”, 4/3/17, warning that “U. S. workers should not be placed in a disfavored status, and the department is wholeheartedly committing to investigating and vigorously prosecuting these claims.” The release also notes that the Division’s Immigrant and Employees Right Section (IER), formerly known as The Office of Special Counsel for Immigration Related Unfair Employment Practices, is responsible for enforcing the antidiscrimination provision of the INA, which statute prohibits among other things citizenship, immigration status, and national origin discrimination in hiring, firing or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation.

(This is an example of the Trump administration repurposing an agency’s mission which was previously to protect the rights of aliens. It is akin to changing the main purpose of the Civil Rights Division of the Department of Justice to protecting the civil rights of white Americans instead of blacks and other minorities).

5. U.S.C.I.S. press release, “Combating Fraud and Abuse in the H-1B Visa Program,” that it has established an email address dedicated to receiving information about suspected H-1B fraud or abuse; that anyone (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) can email to submit tips, alleged violations, and other relevant information about potential H-1B fraud or abuse. (In the world of alternative facts and the absence of reality, H-1B employers and aliens have turned out to be the enemy, and not among those perceived to help build the nation. The positive effects of H-1B workers have been largely discounted by this administration bent on demonizing employers as overseers of underpaid foreign minions whose employment was bought at the expense of Americans thrown out of work. The same playbook was followed by the administration in demonizing immigrants and calling for the creation of a new agency to protect victims’ rights where immigrant crime was involved even though the percentage of immigrants violating the criminal laws has been and remains tremendously less than that of native born Americans).

A collective breathing out of relief followed by a sigh of exasperation in an unbalanced presidency making up scenarios in any way that it can (loosely attached or unattached to fact) is now a familiar pattern – one that unhinged leaders, e.g. Putin, Duterte, Assad, all understand and ascribe to, but dispiriting to most of the rest of the world leaders who hoped for better from the United States. Aliens on H-1B's are capped at 85,000 per year except for those being petitioned for by colleges and universities, nonprofit organizations affiliated with institutions of higher education, nonprofit research organizations and government research organizations. They represent a very small portion of the 254,414,000 full-time and 5,553,000 part-time workers in the nation in March 2017 as per the Bureau of Labor Statistics. With these figures, the unemployment rate declined to 4.5% in March which by many measures of economics is almost full national employment. So President Trump, where is the problem?

About The Author

Alan Lee, Esq. Alan Lee, Esq. the author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-15, 2015-16), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.