Stephen B. Maule

Stephen B. Maule Partner

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Start Planning Now For The Upcoming H-1B Visa Filing Deadline

Employers looking to hire foreign workers in certain professional positions that require an H-1B visa would be wise to begin the process early in 2018.  Use of the H-1B visa has been a popular topic of discussion recently as part of President Trump’s “Buy American, Hire American” initiative, which “seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by vigorously enforcing and administering” the immigration laws. “Buy American, Hire American: Putting American Workers First,” www.uscis.gov, Jan. 3, 2018.

The H-1B visa is reserved for professionals in a specialty occupation, defined as those positions which require theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor.  Professions that qualify as a specialty occupation generally include architecture, engineering, mathematics, physical and social sciences, education, law, business specialties, and other professions that require a bachelor’s degree or the equivalent.

The President has made clear that his administration is exploring ways to limit the use of H-1B visas in order to further his initiative.  Possible modifications to the current system that have been mentioned include eliminating extensions of H-1B status beyond the initial two (2) three-year periods of stay while a permanent residency application is pending, ending work eligibility for spouses of H-1B visa holders, and giving priority for such visas to better-paying positions that are awarded to individuals with higher education and skills.  In addition, U.S. Citizenship and Immigration Service (“USCIS”), the agency responsible for approving and denying H-1B petitions, has been much more scrutinizing of such petitions, frequently asking employers to produce additional evidence to support their request for H-1B status.

In recent years, many U.S. employers have had difficulty obtaining H-1B visas as the annual allotment of 65,000 visas, plus the additional 20,000 visas designated to individuals with advanced degrees, have been exhausted within days or weeks of them becoming available.  In 2017, for example, USCIS announced on April 7, just 6 days after the filing period began, it no longer would accept petitions for new H-1B employment because the annual allotment had been reached.  In fact, USCIS received 199,000 petitions for H-1B visas in 2017, well more than double the allotted amount.  USCIS was forced to use a lottery in 2017 to determine which petitions would be selected.

The next filing period begins April 2, 2018, for employment to begin October 1, 2018.  Employers who may be in need of specialty labor, must start the process immediately in order to collect the proper documents, conduct any necessary recruitment, and file the required paperwork by April 2.  The amount of detail and adherence to legal requirements will only increase as USCIS follows the administration’s directives.

The St. Louis employment and immigration attorneys at McMahon Berger have been helping employers with their immigration needs for many years and are well-equipped to assist with preparing and submitting petitions for H-1B and other employment visas, including L-1 intracompany transfers and permanent residency.  In addition, we routinely advise clients on employment verification issues, such as Form I-9 and E-Verify compliance.

DISCLAIMER:  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts.  The choice of a lawyer is an important decision and should not be based solely on advertisements.

 

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