Recent Developments in U.S. Immigration Law: H-1B Visa Category, Nonimmigrant Visa Applications Abroad and Suspension of Nonimmigrant Visa Processing in Russia

August 29, 2017

U.S. immigration law practitioners are expecting a turbulent fall ahead with upcoming H-1B adjudications challenges by the U.S. Department of Homeland Security, a suspension of nonimmigrant visa applications in Russia and closer scrutiny in general for nonimmigrants applying for temporary work visas at U.S. consular posts abroad.

In his Presidential Executive Order, 'Buy American, Hire American,' signed on April 18, 2017 (E.O. 13788), the President indicated an intent to "create higher wages and employment rates for workers in the United States and to protect their economic interests."

Translated and interpreted by U.S. Attorney General Jeff Sessions, and U.S. Homeland Security and U.S. Citizenship Services, this Executive Order implements a longstanding desire to curtail H-1B professional and specialty occupation workers from flooding the American labor market. One must keep in mind that only 85,000 or so temporary work visas are issued in this visa category annually, which is a small drop in the bucket compared to the total U.S. labor market. In addition, unlimited H-1B visas are also issued for research organizations, hospitals, universities and other specific not-for-profits that are exempt from the 85,000 cap.

On March 31, 2017, the eve of this year's H-1B cap filing period, Attorney General Sessions revived a 2000 Policy Memo reinterpreting the professional designation of computer programmer positions, and imposing new and stricter guidance on when these specific positions may be considered 'specialty occupations' for purposes of H-1B visa classification. The H-1B visa classification has historically required that the prospective foreign national worker possess a bachelor's degree and perform work in the United States requiring such qualifications. The new, revived Policy Memo challenges this assumption and, relying on the U.S. Department of Labor regulations and wage level determinations, USCIS is currently issuing requests for additional evidence targeting positions that might be considered entry level or determining that the duties might be too complex for entry-level positions that could require a limited amount of independent judgment.

These new challenges to U.S. employers will likely have the effect of discouraging U.S. employers from paying entry-level wages and from hiring freshly minted entry-level university graduates. U.S. immigration practitioners are currently seeing a slew of challenges from the government in professional occupations beyond the computer industry entry-level categories.

In related developments, U.S. Secretary of State Rex Tillerson recently issued amended instructions to U.S. consular officials through the Foreign Affairs Manual, which is utilized by consular officials at U.S. consular posts abroad to furnish guidance regarding the adjudication and issuance of nonimmigrant and immigrant visas.

Specific guidance was revised for the E visa (treaty trader/treaty investor and specialty occupation) category, the H visa (specialty occupation visa), L visa (intracompany transferees), O visa (aliens of extraordinary ability) and P visa (athletes, artists and entertainers).

The instruction confirms that consular officials should continue to be concerned, as always, with fraud or abuse, but are now also to be charged with conducting closer scrutiny of salaries paid to nonimmigrant visa applicants to assure that U.S. worker salaries are not undercut, or that U.S. workers are not displaced.

The E and L category are used routinely by multinational corporations to expedite the transfer of qualified personnel to the United States, and it is anticipated that the U.S. consular officials will more closely scrutinize such salaries with a focus on entry-level duties and compensation, as well as the educational and experiential background of potential nonimmigrant workers.

Finally, on August 21, the U.S. Embassy in Russia announced it would suspend issuing nonimmigrant visas for all U.S. consular posts for eight days from August 23, 2017, in response to the Russian decision to cap the U.S. embassy staff by 755, or two-thirds. The majority of the more than 1,000 employees at the various U.S. diplomatic missions in Russia are considered local Russian employees.

The U.S. Embassy in Russia further announced it would resume issuing visas only in Moscow, commencing on September 1, 2017, but it was indefinitely suspending nonimmigrant visa issuance in St. Petersburg, Yekaterinburg and Vladivostok. This development will lead to slower processing times for Russian nationals to secure appointments for visas and delay entry to the United States. Historically, the issuance of immigrant visas has always been the exclusive domain of the Embassy in Moscow for Russian nationals.

For corporations and individuals engaged in transferring personnel on a routine basis to the United States, much more scrutiny and individual attention must be given to the nature of the duties offered, compensation packages and, of course, the qualifications of the foreign national selected for a U.S. assignment.

Our Immigration practice group will continue to monitor and report on developments in this area.

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