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USCIS Director Announces Pending Changes to the H-1B Visa Program

On April 4, 2018, the Director of USCIS, Lee Francis Cissna, wrote Congress on USCIS' efforts to comply with the April 2017 Executive Order, "Buy American, Hire American." Below is Litwin & Smith's summary of the existing, pending, and proposed changes that have occurred since the Executive Order:

Changes made since the "Buy American, Hire American" Executive Order

  • Extreme Vetting: All immigration petitions are facing closer scrutiny including: enhanced collection and review of biometric and biographical data; increased documentation and verification requirements; heightened scrutiny and more thorough review procedures for CBP and other related agencies.
  • Adjudication for extensions: USCIS released a policy memorandum that instructed officers to adjudicate extension requests with the same standard as initial requests.
  • TN Nonimmigrant: USCIS published policy guidance clarifying TN nonimmigrant economists be defined by qualifying business activity.
  • Reclassification of Computer Programmer: In March 2017, USCIS rescinded its "Guidance memo on H1B computer related positions" stating that USCIS would no longer "generally consider the position of programmer to qualify as a specialty occupation."

Current Projects

  • Integrity of the H-1B Program - Third-Party Placements: USCIS recently clarified the existing regulatory requirements for H-1B petitions filed for H-1B workers who will be at a third-party worksite making it clear that employers need to provide an itinerary including detailed documentation of contracts, the employer-employee relationship, the specialized natures of the position & duties performed, and proof that the H-1B worker will be paid the wage for the time period requested.
  • Dedicated hotline: USCIS has established a dedicated email address for the public to report fraud and abuse in the H-1B and H-2B programs.
  • Site Visits: USCIS is increasing its site visits to H-1B dependent employers and to L-1B workers who are at a third-party site.

Anticipated Projects

  • H-4 EAD: USCIS is working on regulatory changes to remove H-4 dependent spouses from the class of foreign nationals who are eligible for work authorization.
  • Electronic Registration for H-1B lottery: USCIS will establish an electronic lottery system so that USCIS can more efficiently manage the intake and lottery process.
  • Revising the definition of Specialty Occupation: USCIS is proposing regulation to revise the definition of "specialty occupation," to focus on recruiting "the best and the brightest," and is also working to revise the definition of "employment and employer-employee relationship" to protect U.S. workers and wages.
  • Revising H-1B Pay Requirements: USCIS has also proposed requirements designed for employers to pay the appropriate wages to H-1B visa holders.
  • Removing the Entrepreneur Rule: USCIS is currently drafting a proposed rule to remove the International Entrepreneur Rule.
  • H-2B program: USCIS is preparing proposed legislation to revise the H-2B program.
  • Litwin & Smith will monitor the changes as set above and post updates as they are received. For more detailed information regarding USCIS' present and proposed changes please view our Immigration Articles and Blog sections.

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