Election 2016 and the Effect on H-1B Visas

by Sherrod Seward, Partner, Queen City Immigration Law. (704) 741-9002

The 2016 election results do not exclusively affect families but employers are also weary of changes on the horizon. Temporary employment visas are always a hot topic in politics and many of the nation's top employers push congressional leaders for immigration reform in efforts to expand the number of available visas. The H-1B visa is the most discussed of the employment visas and is typically reserved for immigrants with college degrees who are seeking skilled positions in specialty occupations.

The H-1B program currently only grants 65,000 thousand visas annually and an additional 20,000 which are reserved for graduates of masters or doctorate programs from US universities. This year, the demand for H-1B visas in the United States is already more than 236,000 applications which means less than 30% of the demand is satisfied. Another issue is the few major players that take a large chunk of the available visas each year. Cognizant Technology Solutions Group, PricewaterhouseCoopers, Deloitte Consulting, and Tata Consultancy Services Limited are usually amongst the companies who file the most H-1B visa applications. As an industry, IT consulting firms are consistently at the top of the list for H-1B applications. Cognizant Technology Solutions Group, an IT consulting firm, was granted around 56,000 H-1B applications alone in 2014.

Obviously, the fight for employment based visas centers around employers wanting to increase the availability of visas versus politicians and interest groups holding the position that these visas enable foreign employees to take jobs away from American workers. This particular election is interesting because the President-Elect, Donald Trump, campaigned on the premise to bring jobs back to the US but at the same time owns businesses that have taken advantage of the H-1B program and hired many immigrant workers. His public views on the topic have ranged from ending the program forever as a cheap labor source to highlighting how important it is for America to attract high-skilled workers.

The current H-1B process does include administrative safeguards through the Department of Labor to prevent employers from using the program to displace American workers and pay foreign workers lower wages. Typically, employers are required to inform existing workforce of each new H-1B worker's employment terms, including salary, and use the DOL’s prevailing wage determination standards to prevent undercutting the wages of native employees. There is room for improvement on both of these safeguards that could help address issues of the program. The USCIS also addresses overuse of the H-1B program by hiking up the fees large companies must pay for processing an application. Starting this year, companies with more than 50 employees and 50% or more of these employees are H-1B workers will pay $4,000 more per application. This is in addition to the typical $4,550 it costs to process an application. These new fees are very applicable to IT consulting firms which routinely cannot find qualified and willing American talent to fulfill their needs and thus employ a lot of H-1B workers.

Only time will tell what changes the new administration will make to the H-1B program, but we can be sure they will not be made quietly. A great number of the nation’s most innovative enterprises rely heavily on H-1B workers for growth and are willing to apply significant resources towards pushing their interests to Congress. In the meantime, April will be here quicker than you think and appeasing the Department of Labor will not get any easier. Do what you can now.