Changes in US immigration practice over the past 12 months are providing a major headache for the very substantial number of businesses with operations in both Ireland and the United States.
Of most immediate concern is changing practice in relation to the highly popular H-1B visa, which has been a very useful tool for Irish/US employers for many years. Familiarity with the new rules is critical as the deadline for applying for this visa comes in the first week of April for positions due to start on October 1st next.
The H-1B visa allows foreign workers, including many Irish people, to be employed by US companies in specialty occupations – ie occupations that require the theoretical and practical application of highly specialised knowledge requiring at a minimum a baccalaureate or higher degree for entry into the occupation.
Questioning
The employer petitions the US Citizenship and Immigration Service (USCIS) for an H-1B. USCIS then assesses whether the employment constitutes a specialty occupation, and whether or not the applicant is qualified to perform the services.
Often, if the beneficiary’s bachelor’s degree is not an exact fit for the proffered position, the H-1B petition will be denied.
Since last year, there has been a substantial increase in the questioning and denial of petitions for these coveted visas. This is not just causing disappointment to US-based employers and potential employees, it is also causing great uncertainty for professionals from Ireland and elsewhere who are already in the US under this visa status.
Up to now, people on H-1B visas frequently applied for, and were granted, extensions to their visas. Now, when they apply for an extension, USCIS will not give weight to a prior H-1B approval and denials are on the rise.
When this happens the person in the US in H-1B status faces not only a denial but possibly a deportation order and a potential ban on re-entry to the US. While deportation orders have been rare so far (and the now-denied H-1B beneficiary can voluntarily leave the US before one is issued), the mere threat of possible deportation has caused increased levels of stress for both employers and H-1B employees.
This year’s deadline for the filing of new H-1B petitions falls in just three weeks’ time. Employers would be well advised to file applications carefully to ensure they are of a very high standard to avoid what, up to this year, would have been an unexpected refusal.
There are 65,000 new H-1Bs available in each fiscal year. A further 20,000 H-1Bs are available for those who hold a US master’s degree or higher. The number of H-1B petitions filed with USCIS this year is expected to be more than three times that of available H-1Bs.
There is therefore a lottery for the inadequate number of H-1Bs available and only those who are successful in this lottery will be processed.
However, even if your application is lucky enough to be randomly selected, it still faces an arduous journey which has become more difficult in the past 12 months. USCIS is now issuing an unprecedented number of requests for evidence – demands that the employer back up the assertion that the position to be filled by the overseas employee is in fact in a specialty occupation. This delays the processing of the petition and increases the chances that it will be turned down.
Such requests add many months to the already lengthy process and can cost employers more in legal fees than the original filing – often causing employers to think twice before going down the H-1B road again.
Multi-option approach
The strong sense of lawyers who represent employers sponsoring H-1Bs is that USCIS is now looking for reasons to deny cases, rather than approve.
Nobody has formally stated that this change arises from the attitude of the Trump administration to immigration. However, the president’s “Buy American, Hire American” executive order “putting Americans first” does seem to provide a context for what is happening.
The H-1B visa has often been used by Irish employers seeking to transfer employees to their operations in the US. Many are now implementing a multi-option approach, adding other visa categories to their arsenal of options.
For instance, so long as the US-based entity is at least 50 per cent Irish owned, Irish employers can consider using the E-1 or E-2 visa category to transfer Irish nationals. While the H-1B has in the past been a much quicker, easier, and less expensive option than the E (which requires much more extensive documentation to put in place), the E visa is becoming a much more civilised, quicker and more efficient option for obtaining employment-authorised status in the US and can be accomplished by dealing directly with the US state department.
Other visas like intracompany transfer L visas may also be an option. These are non-immigrant visas available to employees of an international company with offices in both the US and abroad.
It allows such people to move to the US office of their Irish employer, so long as (among other things) they have worked abroad for the company for at least one continuous year within the previous three prior to going to the US.
Employers are also now considering options that allow the employee to enter the US as a permanent resident, avoiding the non-immigrant headaches all together.
The previous “go-to” H-1B visa can no longer be relied upon, it appears. For employers, developing a robust, multi-option immigration plan, and being willing to adapt to sudden change, is the key to success in US immigration today.
James Morrison is co-leader of the immigration practice at Clark Hill, the international law firm with offices in the United States and Ireland
