In the wake of President Trump signing the “Buy American and Hire American” Executive Order, Attorneys from the Alliance of Business Immigration Lawyers urge the USCIS to maintain the H-1B Visa program as a valuable tool to enhance the effectiveness and competitiveness of U.S. companies and enrich the communities in which these workers live.
On April 18, 2017, President Trump signed the Executive Order entitled: “Buy American and Hire American.” The Executive Order indicated that it “shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad.” The Executive Order is currently being applied to the H-1B Visa Program to de facto reinterpret this statutory language in a manner that not only departs from historical adjudication standards but is also inconsistent with the law.
The H-1B Visa program allows persons employed in “Specialty Occupations,” which, according to the law, require theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor (such as engineering, mathematics, medicine, accounting, etc.). The program also requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
The USCIS is now denying extensions and change of employer petitions for individuals, particularly in the IT field, who have been in H-1 status for years on the ground that their jobs no longer require at least a Bachelor’s degree in a particular field. New applications are being treated similarly.
This trend not only upends the lives of the individual employees but also the effective operation of the U.S. businesses that employ them. The underlying reasoning defies logic in that these occupations have gotten more complex, not less, in the more than 20 years since the USCIS first formally recognized that these groups of occupations did qualify as “Specialty Occupations.”
The Alliance of Business Immigration Lawyers (ABIL) believes this approach is legally misplaced and practically shortsighted. Reporting in the first week of May 2018 places the U.S. unemployment rate at 3.9%. Additionally, reports of highly skilled worker shortages are rampant, particularly in the Tech sector.
While the H-1B program could certainly be improved, using it as a tool to cut employment based immigration is the opposite of what USCIS should be doing. Until Congress acts to change the underlying law, ABIL urges the Administration to see the H-1B program for what it is: a valuable tool to enhance the effectiveness and competitiveness of U.S. companies and enrich, financially and culturally, the communities in which these workers live.
