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Continued high demand for H-1B visas and higher levels of scrutiny of some petitions continue to make obtaining an H-1B visa a challenging prospect. Employers are encouraged to consider alternatives for individuals who will not obtain an H-1B visa this cap season.
U.S. Citizenship and Immigration Services received 199,000 cap-subject H-1B petitions this year. That number was down more than 15 percent compared with last year’s total, but still well above the H-1B cap of 65,000 visas plus the additional 20,000 for individuals holding a U.S. master’s degree or higher. On top of that, President Donald Trump’s administration has said it will tighten criteria for certain H-1B workers and no longer honor a longstanding presumption that computer programming qualifies as a specialty occupation.
Alternative visa routes may be available, depending on the worker’s particular circumstance. Some common alternative routes for temporary foreign workers include:
A lawsuit challenging the regulation was recently dismissed. And while the Trump administration has signaled an intention to limit work authorization for foreign students, so far it has not taken any steps to limit students’ abilities to pursue OPT.
Companies should anticipate some tightening of rules on L visas, including greater oversight. Earlier this month, the USCIS appeals panel ruled that companies whose L-1B employees remain on foreign payroll must meet U.S. minimum-wage requirements under both federal and state laws. Companies are encouraged to consult with their BAL professional for advice on individual cases.
President Trump said this week that he intended to renegotiate NAFTA with Canada and Mexico, and has signaled that he may withdraw from the agreement if he is unable to achieve his goals in negotiations. A BAL Analysis of what a withdrawal from NAFTA would mean for high-skilled immigration is available here.
“BILOH.” The B-1 in lieu of H-1B, or BILOH, is an option in limited circumstances. The B-1 is a visitor visa and the BILOH is being closely scrutinized for misuse, so companies should consult with their BAL attorney before considering this route.
BAL Analysis: Employers are encouraged to work with their BAL attorney to explore alternatives for current candidates and to map out long-term strategies for their workforce.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
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