U.S. Citizenship and Immigration Services announced it will be suspending the premium processing for petitions of H-1B visas, a decision that threatens to slow the hiring of foreign talent for some organizations.
President Donald Trump's first 100 days in the White House have been riddled with controversy, with much of the Trump administration's executive orders and focus being placed on immigration-related matters. There has been a lot of talk - and concern - over how new executive orders and policies will affect both U.S. citizens and non-citizens.
The most recent area of contention is the revised executive order, signed this week by Trump, banning entry into the U.S. from six nations: Syria, Iran, Sudan, Libya, Somalia and Yemen. Although the ban exempts green card holders, it does apply to non-immigrant workers, including H-1B visa holders, from those countries if they are outside the U.S. as of March 6 or no longer have a valid visa.
Expedited visa petitions stalled
Another change influencing H-1B visas came last week, when the U.S. Citizenship and Immigration Services announced that it will be suspending premium processing on H-1B visas. These non-immigrant visas allow U.S. employers to temporarily hire foreign talent with specialized skill sets in certain occupations, including:
- IT employees.
- Medicine, health and life sciences experts.
The way the system currently works, companies can pay $1,225 to expedite the H-1B petition processing, usually hearing back from the USCIS in about two to three weeks, rather than having to wait the three to six months that is typical for standard H-1B petitions. During the upcoming suspension, employers will no longer have that option.
"The suspension is attributed to a buildup of long-pending petitions."
According to the USCIS, the temporary suspension begins next month on April 3 and could last for six months. The public will be alerted before processing is resumed. In its announcement, the organization said its reasoning for pausing the fast-tracking is that it will help decrease H-1B processing times and enable it to tend to petitions that have been pending for a long time. Long-pending petitions have apparently become an issue in recent years from the spike in requests.
For example, The Wall Street Journal reported that, in 2015, there was a period where 233,000 applications were filed in less than a seven-day period. The cap is 85,000 visas. Currently, visas are valid for three years, then can be renewed for another three. Once that six-year mark passes, H-1B visa-holders can apply for a green card -– a process that already takes years.
Who does this apply to?
While the premium processing for H-1B petitions is suspended, petitioners will be unable to file:
- Form 1-907, Request for Premium Processing Service.
- Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification.
This suspension does not apply to petitions that have already been filed or will be before April 3, nor does it apply to other nonimmigrant classifications filed on Form I-29. Premium processing for Form I-129 H-1B petitions will continue if the forms were correctly filed with a Form I-907 before this date.
Furthermore, the USCIS explained that petitioners may be able to request expedited processing during the suspension, so long as they meet certain criteria, such as:
- Being in an emergency situation.
- Facing critical financial loss.
- Requesting on behalf of cultural, social or humanitarian interests or reasons.
The organization added that these requests will be reviewed on a case-by-case basis and decisions are up to the office leadership's discretion.
Debate over displacement of employees
This announcement is just the recent event in a broader debate over the visa program. Many against H-1B visas contend that the program facilitates and even fuels the displacement of American workers, though the visa guidelines indicate it's designed in a way as to not interfere with or negatively impact U.S. citizen employees.
Previous initiatives have been made to try and address concerns regarding these visas. Last year, The New York Times reported, Congress renewed a mandate for larger corporations to pay $4,000 for every new visa - as well as an additional $4,000 to move them to another company. Suggestions have also been made to lower the cap to 70,000.
Adding to the complexity of these visa programs is the allegations employers may find themselves facing if they violate H-1B rules, especially if they use it to displace U.S. citizen employees in favor of unqualified foreign individuals. Such was the case in a class action lawsuit filed last year against Walt Disney World and two global consulting firms. According to The New York Times, two Disney staff members alleged that they were terminated and replaced with H-1B visa-holders, claiming the act violated the work document guidance.
Preparing for change
It's critical that employers take every measure possible to ensure compliance with hiring documents, visas and work authorization - be it a Form I-9 or H-1B visa. Failing to thoroughly understand every guideline and rule or overlooking any key detail, can usher in lawsuits, fines and penalties. This has - and always will - be an important issue. But particularly so as the Trump administration continues to crack down on immigration laws and work visa programs.
According to The Wall Street Journal, an executive ordered has been drafted and is pending consideration from Trump, calling on the reevaluation of various visas programs - including the H-1B - to determine whether they safeguard "the jobs, wages and well-being of United States workers."
Staying updated on the latest information regarding H-1B visas can help employers maintain compliance. In addition, it's highly recommended that organizations integrate solutions in the hiring process that help minimize risk, reduce errors, and avoid costly violations, such as ,. Schedule a live demonstration to learn more.