Editor's note: USCIS implemented its new NTA memorandum policy on October 1.
If you've been planning to hire high-skilled immigrants through the U.S.'s H-1B visa program, October 1 is a significant date. That's the earliest newly approved visa holders can start working. Chances are, however, that this year that day will simply come and go like any other.
On September 11, the United States Citizenship and Immigration Services (USCIS) suspended premium processing for H-1B visas until February 19, 2019. H-1B visas are granted to highly skilled foreign workers and--more often than not--requested by Silicon Valley tech companies. Formerly, premium processing allowed companies to pay an additional fee to expedite their H-1B visa requests and receive a resolution within two weeks. While processing times vary between facilities, now you can expect to wait anywhere from three to nearly eight months to hear back about a case, according to USCIS.
"People have already been waiting close to six months and now it looks like the wait will have to be much longer than that," says Jennifer Y. Lee, an immigration lawyer based in the Bay Area. "Some of these cases could continue until early next year," she warns.
The agency said it will consider making exceptions to this rule on a case-by-case basis where there is "severe financial loss to company or person," emergencies, or humanitarian reasons, among other criteria. It's also worth noting that the rule change primarily affects new visa applications; current H-1B visa holders applying for a renewal or switching jobs will also likely face delays, though it should not impact their ability to continue working, as long as they stay in the U.S. (A valid visa is required for travel abroad.)
Even so, a new day is dawning for employers of highly skilled immigrants. Here are other changes to the H-1B system that are liable to impact both who and how you hire:
Since President Trump took office and introduced his "America First" agenda, which
prioritizes American workers and products, the U.S.'s immigration policies have tightened. In the case of H-1B visas, that's led to added scrutiny, prompting a 45 percent surge in Initial Requests for Evidence (RFE), in which additional documents--say, an expert opinion letter--are required to support an application's eligibility. In these cases, you must be able to show how the job qualifies as a highly specialized occupation or why the applicant is considered a highly-skilled worker. "There's more anxiety over long-term ability to maintain a temporary visa status," notes Lee, adding that companies now are more open to sponsor a worker's green card so they can stay longer in the country. "With more uncertainty, both [the employer and employee] are more inclined to start the green card process sooner, even within the first year or two of the H-1B status," she adds.
Also on September 11, USCIS officers were granted full discretionary power to deny a visa application outright, without first sending an RFE. This means that employers and employees may not have a chance to submit additional evidence to support an H-1B visa application before it gets denied. This is particularly significant given the surge of RFEs issued over the past year.
USCIS also recently increased its fees for premium processing requests to $1,410, up nearly 15 percent from $1,225. Of course, as premium processing is suspended until next year, you may not need to fork over any funds before then.
More deportation proceedings
In July, USCIS updated its guidance for when the agency may issue a Notice to Appear, a summons to stand before an immigration judge, which may result in deportation. The new policy, which has not yet been implemented, expands the criteria used to determine when USCIS is required to issue a notice, and would affect many visa holders, including H-1Bs.
According to the guidance, legal immigrants applying for a renewal or new type of visa might receive a notice--triggering deportation proceedings--if their petitions are not approved. Instead of leaving the country voluntarily, visa holders whose applications are denied could be forced to meet with an immigration judge. USCIS will also issue a Notice to Appear if a visa holder "has committed acts that are chargeable as a criminal offense" or is convicted or charged with a crime, "even if the criminal conduct was not the basis for the denial or the ground of removability."
It's unclear when this policy will actually kick in. A USCIS spokesman says the agency is waiting until issues with operational guidance have been resolved. While uncertainty is never good, at least the delays buy you time to get a plan of action in order.