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Proposed Legislation Would Restrict H-1B Visas

Written By The Shapiro Law Group on July 11, 2016

As Congress has increased its scrutiny on immigration and related issues, a proposed bill would change the application process and restrict H-1B visa exemptions for certain workers. Chicago corporations have relied on the availability of H-1B visas to hire foreign nationals to fill highly skilled positions for which the companies have had difficulty finding qualified U.S. citizens and residents.

How H-1B Visas Work

H-1B visas are non-immigrant visas that allow foreigners to work temporarily in the U.S. for specific companies. These visas require that the foreign nationals hold at least a Bachelor’s degree or have equivalent experience and training. The companies have to be willing to act as sponsors for the foreign workers, and the foreign nationals have to have job offers that provide similar salaries as other comparable positions.

The United States Citizenship and Immigration Services, or USCIS, places annual limits on the number of H-1B visas that are issued. The cap on H-1B visas is currently set at 65,000 annually, making the competition for them quite stiff. An exemption exists for an additional 20,000 H-1B visas for workers holding Masters degrees or higher. Visa holders are allowed to live and work in the U.S. for 3 years. They are able to apply for an extension at the end of the 3-year period, and the workers are also allowed to apply for immigration statuses while they are in the country.

Current Application Process and Exemptions

H-1B visa applications comprise a major portion of the work of a corporate immigration lawyer. When the workforce of a company that has 50 or more employees is made up of 15 percent or more H-1B workers, the company is required to submit documentation with new H-1B applications. This paperwork must demonstrate that the company advertised the position it is offering to U.S. workers and that the applications that it received from American workers were considered.

Under the current immigration law, employers who offer jobs paying at least $60,000 to people holding Masters degrees or higher are not exempted from the documentation requirement showing that they advertised the position to Americans before offering them to foreign nationals. Once a person is granted an H-1B visa, he or she is allowed to transfer it to a new company through the H-1B transfer process and may apply for one of the 85,000 annual slots set aside for H-1B visa holders for green cards.

Proposed Restrictions

According to Myvisajobs.com, Chicago has 10,278 H-1B visa workers making an average annual salary of $82,081. It is currently ranked as number six among cities having the greatest number of H-1B visa workers. Republican Congressman Darrel Issa has proposed legislation that would place restrictions on the exemptions offered for H-1B visa applicants holding Masters degrees or higher. Under his bill, the exemption for H-1B applicants with post-graduate degrees would be removed, and the minimum annual salary would be raised from $60,000 to $100,000.

No hearing has yet been set for Issa’s bill. The legislation is supported by both Democrats and Republicans, and three out of the four cosponsors for the bill are Democrats. Issa proposed the bill after a company in Southern California laid off 400 workers and then turned around and hired workers through staffing companies that hire a large percentage of H-1B visas. The company, Southern California Edison Co., denies that it hired H-1B visa holders as replacements for the laid-off workers, and it issued a statement claiming that it pays H-1B workers similar wages to American workers. One of the consulting companies that were involved in providing workers for Southern California Edison Co. had the second highest number of employees with H-1B visas in San Diego with 103. The average salary for the H-1B workers at the company was $74,559.

A Corporate Immigration Lawyer on What the Changes Could Mean

If a hearing is scheduled, the bill’s bipartisan support would likely lead to its passage. A corporate immigration lawyer might advise his or her corporate clients to advertise the positions for American workers before extending the offers to foreign nationals holding advanced degrees. While certain jobs, such as engineers, scientists, chemists and others, may pose difficulty for employers for finding U.S. workers, having to documentation that an effort was made could help the company with securing the H-1B visas for the workers it needs. Submitting the documentation with every application could also obviate the company from having to pay the minimum salary of $100,000 that the bill would require.

A corporate immigration lawyer is accustomed to the frequent changes made to the visa and immigration laws. Employers who need the help of foreign nationals to fill specialized positions might stay ahead of the potential changes by thoroughly documenting all advertising for the position and their consideration of applications to increase the approval chances of their H-1B visa applications.