April 27, 2017

Current US Visa Policies and Their Possible Impact on Employee Relocation


If you believe the following recent headlines and related announcements in the media, opportunities to work in the US will be aggravated:

  • "Trump wants to exacerbate granting of non-immigrant business visa for high-qualified candidates"
  • "Trump hinders specialists' entry"
  • "Quarrel regarding abuse of visa in Silicon Valley"

On April 18, 2017, the president of the United States of America signed an Executive Order to impede the awarding of H-1B visas to foreign specialists. The order appears to confirm President Trump's "America first!" politics that we had expected since the US presidential election results were first announced in November 2016.

Sec. 5 of the Executive Order notes that the current rules for applying for and awarding a specific visa category—the H-1B, which is mostly for academic specialists in research and development—shall be revised and tightened in order to prevent fraud or abuse.

The awarding of H-1B visas had already been subject to strong regulations. Current rules cap the number of awards per US-fiscal year, and the application procedure—compared to those of other visa categories—is intricate.

The pre-Executive Order H-1B application process usually comprises three steps:

1. Submission of a Labor Condition Application (LCA) petition to United States Citizenship and Immigration Services (USCIS) by the US-based employer. This LCA covers a pre-approval of the applicant's qualifications for the job in question, without guaranteeing a subsequent visa award. It had not been necessary to prove a prior unsuccessful search for American workers for this job.

A comparable proof of such an unsuccessful prior search (a Labor Certification, petitioned by the US employer at the Department of Labor (DOL)) had already been necessary before April 18, 2017, in the application procedure for an H-2B visa (for temporary workers to supplement the employer's permanent staff temporarily at the place of employment due to a seasonal or short-term demand).

2. Postal application at USCIS containing numerous and detailed documentation about the US employer, the staff, the awarded LCA, and the completed Form I-129, as well as proof of the qualification, the job and the salary of the employee.

3. Application for an H-1B visa at the Consulate General of the US in the domestic country by the employee.

With his Executive Order, President Trump intends to award H-1B visas only to "the most-skilled or highest-paid petition beneficiaries."

Essentially, the original intent of the H-1B visa shall be corroborated: US companies shall employ only the highest qualified applicants from abroad. The second precondition of awarding H-1B visas only to the best paid applicants does not appear—at first glance—to be explicitly stated. Nevertheless, regularly the most qualified members of staff are also well paid. Therefore, this requirement shall be met easily.

With special respect to the title of this Executive Order, "Buy American and Hire American," we expect the first step in the application procedure to become more significant. US employers will presumably have to prove that they could not find any equally skilled US-based candidate to meet the requirement of the job. How strenuous such documentation efforts could get is still unclear.

Other visa categories (such as B, E and L, which we deal with in our daily practice) are not affected by this Executive Order at the moment. We do expect, however, this Executive Order to exacerbate the application procedures with regard to "America first!" as it is intended to revive the domestic employment market and—as a consequence—to strengthen the national economy. With this in mind, foreign specialists and executives would be welcome just in crucial cases of need.

As soon as there is any new development in this respect, we will keep you informed.

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