Contents
USCIS and DOL reports on H-1B Petition Filings. 2
Introduction:
One key priority of the Trump administration is to limit immigration, in part through enacting visa reform, to increase enforcement, and to encourage policies that benefit American workers. Consequently, early in April 2017, the United States Citizenship and Immigration Services (USCIS)[1], U.S. Department of Labor (DOL)[2], and U.S. Department of Justice (DOJ)[3] announced plans for better inter-agency coordination regarding H-1B visa fraud and abuse and reviewing the H-1B program in more detail.
On April 18, 2017, President Trump released an Executive Order titled, “Buy American and Hire American”[4] in which the Secretary of State, Attorney General, Secretary of Labor, and Secretary of Homeland Security are prompted to suggest reforms and to propose new laws to ensure H-1B visas are awarded to the most skilled or highest paid beneficiaries. In line with these developments, the USCIS[5] and the DOL[6] have published reports detailing the current H-1B trends.
USCIS and DOL reports on H-1B Petition Filings
Birth Country
The vast majority of H-1B petitions filed in 2017, (247,927 out of the 336,107 or 74%), were for beneficiaries born in India. Though second, China was significantly below India with 36,362 filed petitions. The Philippines, which ranked third with 3,161 filed petitions, demonstrated a large gap below India and China. All other top filing countries had petition volumes of between one and three thousand.
Occupations
Over the past ten years, the vast majority of H-1B filings have been for computer- and IT-related positions such as computer systems analysts (22.1% of positions certified by the DOL), software developers - applications (15.8%), and computer programmers (9.5%).
In its recent Policy Memorandum titled, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B Computer Related Positions,’” the USCIS indicated that, based on the definition of computer programmer in the DOL’s Bureau of Labor Statistics Occupational Outlook Handbook (OOH), they have concluded that most computer programmer positions would not qualify for the H-1B as many such positions do not require a bachelor’s degree or higher. Computer programmer positions, therefore, may not rise to the level of a specialty occupation as required by H-1B visa regulations.[7] The memo also stated that other positions which fall into OOH classifications which generally, but not always, require a four-year bachelor’s degree may draw additional inspection for meeting H-1B specialty occupation standards.
Given the high demand for technology positions, companies will likely continue to sponsor a large number of foreign workers for computer related positions under the H-1B category. However, we will likely see companies shift away from computer systems analysts and computer programmer positions which will likely face a higher level of scrutiny from USCIS.
Compensation Trends
The USCIS report found that the majority of 2017 petitions (105,827 out of 336,107), were filed with a beneficiary compensation level between $50,000 and $74,999. The next largest group’s (99,326) levels were $75,000 - $99,000, while those of the third (59,988) was between $100,000 and $124,999.
Currently, an H-1B beneficiary is exempt from additional special attestations that are applicable to H-1B dependent employers if they receive an annual wage of $60,000 or higher or have a master’s degree or higher. In January 2017, Rep. Darrell Issa (R-CA) introduced a bill that would eliminate this exemption and require any company paying an H-1B worker less than $100,000 to show that they could not hire an American for the same job.[8] Moreover, Rep. Issa’s bill was followed by others, including one by Rep. Zoe Lofgren (D-CA) that would set the H-1B minimum salary cap even higher.[9] While none of these bills have been enacted into law, we find it likely that the minimum salary cap for H-1B positions will increase in the foreseeable future.
Further, the same USCIS memo pertaining to the computer programmer classification also concluded that a Level 1 (entry level) designation may not qualify as a specialty occupation position. Level 1 wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation and perform tasks that require limited, if any, exercise of judgment and that provide experience and familiarization with the employer's methods, practices, and programs.[10] As companies shift away from utilizing the level 1 wage, we will see compensation trends rise for H-1B beneficiaries.
Degree Trends
According to the USCIS 2017 report, nearly the same percentage of H-1B petitions was filed for beneficiaries with a Bachelor’s degree or foreign equivalent as those with a Master’s degree or foreign equivalent. This may dispel some criticism that companies did not file H-1B petitions to obtain the “best and brightest.” Since the H-1B program annually reserves 20,000 places for beneficiaries with master’s degrees (or their foreign requirement), companies may be filing more petitions for beneficiaries with that qualification in order to increase their chances at approvals (as the pool for bachelor’s level beneficiaries has historically been much higher while the 65,000 H-1B pool has remained constant, with a few exceptions, since the 1990 Immigration Act). On the other hand, companies increasingly realize the importance of petitioning for only their most qualified personnel, especially in light of accusations that cheaper foreign workers have been replacing perfectly capable, but pricier, American workers. Consequently, we expect a steady growth in the number of master’s-level beneficiaries as companies are increasingly required to substantiate their beneficiary’s qualifications over comparable U.S.-based workers.
Other Trends
USCIS has also tracked the age of H-1B beneficiaries. Over the past decade, over half of the beneficiaries have been between 25 to 34 years old. Studies have shown that an increase in younger foreign-born beneficiaries has significant national economic benefits. The Organization for Economic Cooperation and Development (OCED) issued a report that younger immigrants tend to be better educated, have a greater supply of skills and abilities, and consequently contribute more to a nation’s economy through taxes and other contributions.[11] Moreover, as other studies have shown, with the increasing numbers of retirees, U.S. economic growth depends on U.S.-based employers’ continuing to attract, and retain, skilled young workers.[12]
Conclusion
Although there have been no substantive changes in the law regarding the H-1B visas as of this writing, the vociferous rhetoric demanding visa reform, the introduction of Congressional bills sharply raising minimum salary caps, and the USCIS’s announcement of greater scrutiny of H-1B petitions, there is clearly momentum toward significant revisions of this visa category. We believe that companies will shift increasingly toward beneficiaries with higher educational levels and jobs that pay level 2 wages or higher.[13] Moreover, government agency announcements indicate that we can anticipate more scrutiny of all H-1B petitions, irrespective of beneficiary education level or wage level. As such, we expect an increase in companies receiving RFEs (Requests for Evidence) on H-1B petitions. Consequently, we recommend to all our clients and H-1B petitioning employers to prepare for these changes by offering a minimum of level 2 wages for all prospective beneficiaries, by selecting beneficiaries with higher educational attainments, and by anticipating additional scrutiny.
This article was written by Fakhoury attorneys
Rami Fakhoury and Melissa Winkler. Please contact Mrs. Winkler with any questions at melissa@employmentimmigration.com
[1] https://www.uscis.gov/news/new...
[2] https://www.dol.gov/newsroom/r...
[3] https://www.justice.gov/opa/pr...
[4] https://www.whitehouse.gov/the...
[5] https://www.uscis.gov/sites/de...
[6] https://www.foreignlaborcert.d...
[7] https://www.uscis.gov/ilink/do...
[8] https://issa.house.gov/news-ro...
[9] https://lofgren.house.gov/uplo...
[10] http://www.flcdatacenter.com/d...
[11] https://www.oecd.org/migration...
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