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Levi, Ray & Shoup, Inc.

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What do H-1B visa policy changes mean?

August 15, 2018

H-1B visas are back in the news.

That’s because, in July, the United States Citizenship and Immigration Services, or USCIS, published a policy memorandum that set new guidelines for its employees.

The new guidelines will allow USCIS to reject applications and petitions without issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). “This policy is intended to discourage frivolous or substantially incomplete filings used as ‘placeholder’ filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence,” the agency wrote in a statement.

Regardless of the official intent, the policy change means that anyone applying for a work visa must submit as much supporting evidence as possible, or risk rejection. They also need to take extreme care in completing applications, because even minor mistakes could potentially lead to dismissal and deportation.

At least one website noted that the modified guidelines could “potentially complicate the lives of highly skilled foreign workers who rely on the H-1B program.”

We think that’s an understatement.

According to reports by the National Foundation for American Policy, or NDAP, denials of H-1B visa applications had already been increasing before the new guidelines were published. It’s safe to assume denials will increase at an even faster clip once the new guidelines go into effect on September 11.

Just a year ago, we posted our view of H1-B visas. We acknowledged the belief by some people that the visas are used to replace US citizens with foreign workers at a lower wage, and we emphasized that IT staffing firms like ours do not replace US citizens with H-1B workers.

It is not our business model to do so and we strongly oppose the practice. Our industry association, TechServe Alliance, also opposes this practice. Strongly.

We also pointed out at the time that H-1B workers have IT skills which are in critically short supply. The supply situation has only gotten worse in the last year: The US unemployment rate is currently under 4 percent, while the unemployment rate in the technology sector is under 2 percent.

That’s a statistical way of saying that Americans with the IT skills companies need are simply unavailable. Because of that, companies look for highly skilled foreign workers to fill the gap, and the new guidelines will only make that option more difficult.

We would love to see more American workers with IT skills, and we applaud President Trump for recently signing the updated Perkins Act. That updated law will prioritize existing federal education dollars for career and technical education (CTE) programs. But even with more dollars spent on education, producing American technology graduates will still take time.

And time is something that employers don’t have. In fact, the companies we talk to that are looking for technical talent need workers right now. Our fear is that more restrictions on H1-B visas will decrease the number of available foreign technical workers.

With fewer available workers in the US, companies will either delay innovative projects they are planning, or worse, they’ll decide to offshore IT projects.

As we said a year ago: While reasonable people can debate the exact level of H-1B visas that should be issued, what is beyond question is that talented people possessing high demand IT skills sets continue to be needed in the United States. The H-1B program remains a critical source of that talent both now and for the foreseeable future.

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