February 24

New H-1B Memo Cracks Down On Third-Party Worksites

In accordance with the Buy American, Hire American executive order and in an attempt to heighten scrutiny of companies who place H-1B workers at third-party worksites, the Trump Administration has released a USCIS memo which would target these firms.

The aim of the memo is to lessen abuses of H-1B visas in third-party worksites by enhancing enforcement of visa requirements such as ensuring the job meets the definition of a specialty occupation and that the employer-employee relationship is maintained.

The memo is a codification of numerous denials that USCIS has made against H-1B visas since 2017. Statistics indicate that H-1B visa approvals fell from 88% to 59% in 2017 according to HR Dive’s October 19, 2017, article.

USCIS has increased the number of Requests for Evidence (RFE) issued for all visa types including the H-1B. The process for obtaining H-1B visas requires more specific information and documentation. Many of these items can be obtained but it will take more cooperation between all the parties involved.

Another change that could result from the new policy is a shortened approval duration from the typical three years. The released statement said,

“While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.”

The proposal aims to protect American workers by ensuring H-1B beneficiaries and their employers maintain the employer-employee relationship. The policy, which is effective immediately, places the burden of proof on the employer to show that the employee is employed in a specialty occupation and that the employer-employee relationship is maintained for the duration of the validity period.

The problem with this policy is that it does not protect American workers or their jobs as it purports to do. This memo is the culmination of an attack on H-1B visas, in particularly third-party worksites, over the past year. H-1B visas for third-party work sites have been denied in record numbers. This does not mean more jobs for Americans. It does mean less high-skilled employees for STEM occupations. According to the most recently available government data, 90% of H-1B visa requests are for jobs that require some high-level STEM knowledge.

Most H-1B applications (75%) require high-level computer knowledge, and roughly half require significant engineering and math skills. High-level scientific knowledge is less commonly requested. H-1B visas fill high skilled occupations in areas where the unemployment rate is already much lower than the rest of the job market.
Like the Buy American, Hire American executive order itself, this immigration policy is bad for the U.S. economy. The H-1B visa programs allow American companies, in particularly tech companies, to hire foreign nationals to fill positions where there is a shortage of qualified American workers.

The H-1B visa program is a good initiative for the economy. According to the American Immigration Council, from the creation of the H-1B program in 1990 to 2010, H-1B-driven increases in STEM workers were associated with a significant increase in wages for college-educated, U.S.-born workers in 219 U.S. cities. A one percentage point increase in foreign STEM workers’ share of a city’s total employment was associated with increases in wages of 7 to 8 percentage points paid to both STEM and non-STEM college-educated natives, while non-college educated workers saw an increase of 3 to 4 percentage point.

H-1B visas do not cost American jobs or lower wages. Factors such as gender, marital status and ethnicity play a larger role than citizenship or immigration status for wages in the tech and finance industries.

Research shows that the U.S. has neglected the opportunity to create more jobs by limiting the number of H-1B visas to far below what’s needed for STEM companies and institutions to remain productive. According to the American Immigration Council, “Estimates show that had the U.S. government not rejected 178,000 H-1B visa petitions in computer-related fields in the 2007 and 2008 visa lotteries, U.S. metropolitan areas could have created as many as 231,224 tech jobs for U.S.-born workers in the two years that followed.”

If the current administration is dedicated to job creation and wage increase, they must develop immigration policies which do not chill the American economy and prevent our most lucrative corporations from hiring the high-skilled talent they need.

About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas

Jon is an Amazon number one best-selling author of H-1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon was also pivotal in the Cherokee Freedmen Supreme Court case.

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