Suspicions that guest-worker visas are sought by U.S. employers to bypass American workers have stalked U.S. business immigration programs for years. Some employers may argue that a number of factors, such as advancements in technology and the need for increased cybersecurity, force them to turn to such programs to remain sustainable and competitive.
Just last month, Doral-based Carnival Corp. announced it is eliminating 200 jobs from its IT department and enlisting a Paris-based consulting, technology and outsourcing firm, citing that it’s “transitioning the positions to help the company keep pace with the evolving technology environment.”
Regardless, the president-elect has vowed to establish new immigration controls that focus on prioritizing jobs and wages for the American people by turning off the “jobs and benefits magnet” and pledged to direct the Department of Labor to “investigate all abuses of visa programs that undercut the American worker.”
With a strong Republican presence in the House and Senate to support this endeavor, it is likely that the nation will see a crackdown on the use of professional/specialty occupation worker, or H-1B visas, including tighter enforcement and a tougher vetting process.
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As the new administration aims to reform legal immigration and curb what has been referred to as “uncontrolled foreign worker admissions,” it is almost certain that the H-1B program will not survive in its current form.
As it stands now, the H-1B visa program allows 65,000 temporary workers and 20,000 workers who obtained advanced degrees from American universities in tech-related fields to work in the U.S. each year. These visas are especially popular among companies in the technological and staffing industries that depend on foreign nationals with skilled engineering and technology degrees — such as Wipro, whose corporate office in India is supported by offices throughout the world, including locations in Tampa and Miami.
It is unlikely, however, that the H-1B program will be scrapped altogether. Employers should expect the technical skills required to obtain visas — along with the related application fees — to increase as to immediately narrow the pool of potential applicants. It is also probable that higher salary requirements will be attached to the program, not only causing employers to “bid” on H-1B visa recipients in a sense, but also to reevaluate their true need to sponsor these employees as opposed to a U.S. national.
Additionally, companies that sponsor or are seeking to sponsor foreign nationals, especially outsourcing firms, will likely be targeted for more extensive audits.
Aside from changes to the H-1B visa program, employers should also expect an increase in the number of inspections and audits with regards to L-1 and E-2 visas, especially those connected to staffing companies. It is also highly probable that the E-Verify process will become mandatory under the new administration.
The scope of visa investigations can be quite broad and can cause unexpected and costly delays in the visa approval process. As such, employers should analyze and vet the company’s process of reviewing resumes for green card applications, verify all documentation is up to date, and ensure the company is in compliance with all pertinent regulations. A self-audit should include a review of H-1B public access files, job classifications and prevailing wage surveys for H-1B filings, as well as ensuring that both electronic and hard copies of U.S. immigration filings are on hand. Employers should also make sure all I-9 — as well as E-Verify, when applicable — records are available.
Foreign nationals looking to enter the U.S. as higher education students — sometimes with the goal of attaining a worker visa — may also experience greater challenges, as subsidies and the benefits of in-state tuition fee rates could be terminated. The J-1 program, which is currently in place to allow foreign exchange students to work in the U.S., could also experience changes and affect employers’ ability to host employees as they obtain the skilled education the sponsoring company seeks.
Employers will be better prepared to face the changes in business immigration laws and programs once they have reviewed their company’s present hiring patterns and considered what factors might be affected. Aside from establishing HR policies that are clear, concise and written with regard to U.S. business immigration issues, HR personnel should also be trained to handle potential audits, investigations and inspections from the immigration and labor agencies.
Companies that are dependent on foreign labor or U.S. visas should file for green cards immediately if they have not done so already. Filing before any changes are announced will ensure the number of green card holders a specific company can secure will be maximized and, more importantly, that the applications will be grandfathered into the current program requirements and guidelines.
Although the new administration will take office later this month, a number of administrative and legal challenges will delay the rate at which such changes can be implemented. Still, now is the time for businesses to prepare for the impending changes of U.S. business immigration laws.
Hector Chichoni, a partner in Duane Morris’ Miami office, is a labor and immigration attorney who represents corporate and individual clients. He can be reached at HAChichoni@duanemorris.com.
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