October 31

Under Construction: The Invisible Wall Against High-Skill Immigration

The Department of Homeland Security’s (DHS) fall agenda proposes major changes to the H-1B visa program and seeks to redefine both ‘specialty occupation‘ and the ‘employee-employer relationship,’ which requires a theoretical and practical application of a body of specialized knowledge and together with at least a bachelor’s degree or its equivalent.

The issue with a revision of “specialty occupation,” specifically the singular degree requirement, is that often the coursework of a related degree provides the specialized knowledge needed to perform job duties.

Currently, if an employer determines that an applicant with a mathematics degree is most qualified for a computer programmer position, a technical evaluation must then be submitted with solid documentation demonstrating how the applicant’s coursework is directly connected to the job description, adding time and money to an already complex process.

The employer-employee relationship is already intensely scrutinized by USCIS and is evaluated by weighing in multiple factors such as who directly supervises the H-1B worker and whether such supervision is performed on or off-site. Further, the use of proprietary information and whether the end work product is directly linked to the H-1B employer’s (petitioner’s) business is closely examined.

The DHS is also seeking to add requirements for wage levels. USCIS has argued that the job duties paying level 1 wages are not sophisticated enough to qualify as specialized yet too complex to be considered entry-level because they involve the exercise of judgment and thus require oversight from a wage level 3 supervisor.

Also in the works is an update of the Adjustment of Status Procedures for “more efficient processing,” eliminating the concurrent filing of visa petitions and Form I-485 for all applicants seeking an immigrant visa in a preference category and changing the dates for filing Form I-485.

Another item on the agenda is to establish a period of authorized stay for F-1 and other non-immigrants. Currently, F-1 students are being admitted for a “duration of status” and allowed to remain in the country for the duration of their full course of study, including any period designated for practical training. DHS proposes to replace the “duration of status” system with certain admission dates as it arguably causes confusion and student visa overstay.

Restrictions on H-1B employment-based visas and F-1 students visas create negative repercussions for our economy. Statistically, every H-1B visa generates almost two jobs for Americans. In smaller companies, it can help generate seven jobs per each H-1B employee.

Reducing H-1Bs decreases the number of jobs for Americans twice as fast. Similarly, international students contribute enormously to higher education institutions as they pay full tuition plus extra fees, and more often than not, enter high-demand STEM fields.

Making these high skilled visas tougher to obtain for American companies forces jobs and companies to outsource and relocate. It has already caused international students to lose interest in attending U.S. universities.

The number of Indian student applicants has decreased by 28% while the number of Chinese student applicants has gone down by 24%. This translated to a loss of approximately $2 billion in tuition for U.S. universities annually.

Countries like Canada and India are already enjoying the increased interest in outsourcing by American companies to bolster their economy, especially in the tech industry.

The United States has led the world in technology by attracting people with the highest skills to come to our inviting and innovative environment. The current visa regulations create a chilling effect that could cause us to lose our leadership position, innovation and adversely impact our economy.

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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