Human Resources professionals with U.S. companies that are reliant upon skilled foreign workers often spend the last few months of the calendar year and the beginning of the new calendar year identifying individuals who will require H-1B sponsorship. As many readers of our alerts may already know, H-1B applications are filed on behalf of individuals offered employment in specialty occupations who have achieved a minimum of Bachelors-level training (through education alone or a combination of education and experience) in a specific field. These applications are subject to an annual cap of 65,000 visas, with an additional 20,000 H-1B visas reserved for holders of a U.S. Masters or other advanced degree. Applications filed by certain employers and for certain positions are exempt from the cap. Those applications subject to the cap are traditionally filed in the first week of April, which is 6 months before the USCIS fiscal year begins and H-1B visas become available. For the last several years, the H-1B quota or cap has been severely oversubscribed. In 2016, a total of 236,000 applications were filed for these visas. In 2015, a total of 233,000 applications were filed for the same quota.

Will the New Administration Impact the Number of H-1B Filings?

Opinions about the impact of the Presidential election on business immigration at this point in time certainly include a certain degree of speculation. Nevertheless, below are a few trends that could impact the number of applications.

The economy is relatively strong right now. Traditionally, over the last 10 years, large numbers of H-1B applications have been filed when the economy has been growing and unemployment has been decreasing. At the same time, the most recent election campaign was not only divisive but also placed an unprecedented degree of emphasis on immigration. While illegal immigration was a significant focus, President-elect Donald Trump also made news stories about the replacement of U.S. workers with foreign labor a focal point of his campaign and was heavy on nationalistic themes. Companies that hire a large number of skilled workers on H-1Bs may be inclined to file a smaller number of visa applications in the upcoming H-1B cap season due to political or perception concerns. Businesses seeking talent may nevertheless find it necessary to hire certain workers requiring H-1B sponsorship, and will have to weigh their business needs against any such general concerns.

Could the New Administration Change H-1B Guidelines?

While the new administration could adopt guidelines impacting the way that the H-1B lottery is conducted this spring, we believe that substantial changes to the program are unlikely.

The President-elect promised in his 100-day plan to thoroughly investigate visa abuse and fraud and indicated on the campaign trail that he would require employers to first attempt to hire U.S. workers before sponsoring workers for visas. However, the H-1B visa program, like many other temporary work visas for skilled workers, does not currently require an employer to attempt to hire a U.S. worker; instead, the employer is simply required to show that the wages and working conditions of the H-1B worker will not adversely impact the wages and working conditions of U.S. workers. While it is certainly possible that the administration could seek to enact such changes to the H-1B visa program eventually, these changes would require Congressional legislation and could not simply be enacted through agency regulation or policy memorandum. Due to the complexity of the issues involved in modifying the H-1B visa program, it is extremely unlikely that any changes will be enacted in time to impact cap-subject H-1B visa petitions for the April 2017 lottery. Furthermore, any changes that are enacted to the H-1B program may not be retroactive; that is, they may impact employer compliance and/or process requirements for new H-1B petitions and future extensions rather than those already in H-1B status.

What Should Employers Sponsoring Workers for Visas Do Right Now?

With certain exceptions, we recommend that employers generally treat the upcoming H-1B season as they normally would in any other year. Employers seeking to sponsor new H-1B workers should be evaluating and determining which employees they wish to sponsor and should work with outside counsel to confirm the timeframes for preparing and filing such applications. As always, employers must recognize that not every application will be selected in the lottery and should also evaluate the availability of alternate options if an H-1B is not selected in the lottery. Recent regulatory changes have also expanded the scope of these options, and individuals who have graduated from Science, Technology, Engineering, and Mathematics (“STEM”) fields may be eligible for an additional two years of work authorization even if their initial 12-month post-graduation Optional Practical Training (“OPT”) period expires.

Nevertheless, given the President-elect’s stated emphasis on investigating compliance with visa requirements, this is an opportune time for employers with existing H-1B workers to take stock of their compliance with H-1B guidelines. Among other steps, we recommend that employers:

(1) Conduct internal audits of their Public Access Files (PAFs);

(2) Verify compliance with recent guidelines requiring amended H-1B petitions when an employee’s location of employment changes; and

(3) Ensure that they have a robust system for ensuring that H-1B worker salaries match the higher of the appropriate prevailing or actual wage paid to U.S. workers.

We will soon provide further guidance on potential regulatory changes impacting the H-1B program that the new Trump administration could enact.