H-1B Processing Is Now More Difficult

Melissa Knipp

Due to a new executive order, called “Buy American, Hire American,” H-1B processing is now considerably more difficult for applicants. While there are no substantive changes to the actual law, there have been procedural and adjudication changes through U.S. Citizenship and Immigration Services and the Department of State. These will require increased scrutiny of application and result in longer total processing times.

What is Buy American, Hire American?

This executive order, signed on April 18, 2017, is focused on creating higher wages and employment rates for U.S. workers. The order takes an aggressive stance on enforcement of immigration laws. It also seeks to ensure H-1B visas are awarded to only the most-skilled or highest-paid beneficiaries. 

The Specifics

Increased rate of Denial

As the USCIS increases the scrutiny applied to H-1B applications, the amount of applicants denied will continue to increase. For example, two months into 2018, the average percentage of H-1B applications approved dropped to 84%. This percentage had hovered around 95% for the same two-month period in recent years.

Increased rate of Requests for Evidence

Requests for Evidence (RFE) will now be more regularly used by immigration officials. RFE can be issued when an applicant may fit the “specialty occupation” definition. This is generally not an issue for MDs and DOs.

Administrative Processing delays at consulates could also be a result of the recent executive order, so keep that in mind when setting a timeline for your application. 

Changes to H-1B

The Immigration Innovation Act of 2018 was introduced earlier this year. This bill would authorize additional visas for “well-educated aliens” to live and work in the U.S. However, it has not yet been enacted.

This bill would affect H1-B visa applicants in several ways:

  • U.S. advanced degrees – Removes the cap for existing exemptions, which is currently 20,000, for those with U.S. master’s degrees or higher from the annual limitation on H-1B visas. This only for applicants who are being sponsored or who will be sponsored for a green card.
  • Statutory cap – Increases the annual base allocation of H-1B visas by 15,000 - from 65,000 to 85,000.
  • Market escalator – Creates a market-based escalator to allow the supply of H-1B visas to meet demand. Under the escalator, up to 110,000 additional H-1B visas (for a total of 195,000) may be granted in a fiscal year if certain demand requirements are met.
  • Lottery prioritization – Prioritizes adjudication of cap-subject H-1B visa petitions for holders of U.S. master’s degrees or higher, holders of foreign Ph.D.’s, and holders of U.S. STEM (science, technology, engineering, and mathematics) bachelor’s degrees.
  • Hoarding penalties: Subjects employers who fail to employ an H-1B worker for more than 3 months during the individual’s first year of work authorization to a penalty.
  • Prohibitions on replacement: Prohibits employers from hiring an H-1B visa holder with the purpose and intent to replace a U.S. worker.
  • Work authorization for H-1B spouses and children: Provides work authorization for spouses and dependent children of H-1B visa holders.
  • Worker mobility: Increases H-1B worker mobility by establishing a grace period during which H-1B visa holders can change jobs without losing legal status.
  • Dependent employers: Updates 1998 law exempting H-1B dependent employers from certain recruitment and nondisplacement requirements. Raises from $60,000 to $100,000 the H-1B salary level at which the salary-based exemption takes effect. Narrows education-based exemption to H-1B hires with a U.S. Ph.D. Eliminates exemptions for “super-dependent” employers.

See Senator Hatch’s Summary here.

Social Media

The Department of State is seeking approval to require applicants to list social media platforms they’ve used in the past five years. Immigration officials already look closely at applicant’s social media accounts. Approval would allow them to take an even closer look, but it is still currently under consideration by the Office of Management and Budget

There have been cases where information such as a listed relationship status has been the subject of scrutiny for applicants, among other things.

Job Search Implications

The job search process for Foreign Medical Graduates is already hard. Unfortunately, the effects of this executive order will only make it harder. We work with physicians on visas regularly to find them the jobs they want, where they want them. We are familiar with the obstacles you may face, and we can help you navigate them. Speak with one of our representatives today by calling 877-758-3318.