From April 3rd to April 7th, the five-business-day window marks the annual H-1B application season for the U.S. Citizenship and Immigration Services (USCIS).
The H-1B visa has long been the twin brother of the EB-5 visa, representing the two most formal pathways for individuals without family or connections to remain in the United States. While I may not be an expert, I have been closely monitoring every move regarding H-1B policy. Over the past few weeks, almost every immigration law firm in the U.S. has been working overtime to rush H-1B cases, aiming to submit them by April 3rd to await the lottery.
The annual H-1B cap is 85,000, which includes 20,000 spots reserved for applicants who have earned a master's degree or higher in the U.S., while the remaining 65,000 spots are available to applicants with a bachelor's degree or higher (6,800 of these 65,000 spots are reserved for citizens of Chile and Singapore). Based on trends from previous years, the number of applications received within the first five business days will exceed the actual quota; therefore, USCIS will accept applications during this five-day window and then conduct a lottery.
Lottery mechanism: Applicants with an advanced degree are selected first for the 20,000 spots. Those not selected in the advanced degree pool are then included in the general pool with bachelor's degree applicants.
The general pool has 65,000 spots (minus the 6,800 spots reserved for citizens of Chile and Singapore).
Since President Trump took office, under the banner of "America First" and prioritizing American workers, signs of tightening H-1B regulations have become increasingly strong. Since his inauguration, we have seen the potential for stricter H-1B policies, although they have not yet been fully implemented: Trump's immigration executive orders have caused chaos in the U.S., with three of the six directives still pending.
On April 3rd, the first day USCIS began accepting H-1B applications, a new rule was issued, adopting multiple measures to further combat and deter fraud and abuse of the H-1B visa program.
USCIS stated: The H-1B visa program is intended to help U.S. companies recruit high-tech talent that is in short supply domestically. However, too many qualified U.S. workers who are willing to work have been overlooked and placed at a disadvantage. Combating fraud in employment-based immigration programs and protecting the employment rights of U.S. workers is a top priority for USCIS.
This tone is consistent with President Trump's "America First" and "prioritize American workers" stance.
According to the USCIS announcement, starting April 3rd, more targeted site visits will be conducted. USCIS will focus on the following situations:
• When USCIS cannot verify basic employer business information through commercial data;
• H-1B-dependent employers, i.e., those who employ a higher number of H-1B workers than U.S. workers;
• Employers filing H-1B petitions for workers who will be employed at other companies or organizations.
Note: The third point above is likely aimed at Indian IT outsourcing companies (currently, Indian outsourcing firms such as Tata, Infosys, and Wipro account for the majority of H-1B applications; for reference, see: 2016, H-1B Applications About to Open, The Hardships Behind the Statistics).
This analytical report suggests that a crackdown on Indian outsourcing companies could actually be good news for Chinese students.
Through targeted site visits, USCIS can concentrate resources on potential H-1B visa fraud and abuse, and determine whether H-1B-dependent employers are failing to hire U.S. workers in accordance with the law.
USCIS stated that in addition to targeted site visits, it will continue to conduct random and unannounced investigations across the U.S. The purpose of these site visits is not to investigate whether non-immigrant employees are involved in any form of criminal or administrative offense, but to investigate employers who abuse the H-1B visa system.
To deter H-1B visa abuse, USCIS has also established an email address: ReportH1BAbuse@uscis.dhs.gov, to accept tips regarding potential H-1B visa fraud or abuse.
Since 2009, USCIS has conducted random site visits to ensure that employers and foreign workers comply with H-1B visa requirements. If cases of suspected fraud or abuse are discovered, they are referred to U.S. Immigration and Customs Enforcement (ICE) for further investigation. In addition, individuals can submit Form WH-4 to the Department of Labor (DOL) Wage and Hour Division, or submit an HSI Tip Form to ICE to report employers suspected of H-1B visa fraud or abuse.
Today, the new rule introduced by USCIS to further combat fraud can be seen as the latest move by the Trump administration to tighten H-1B visas. As a friend who obtained a green card through an H-1B visa many years ago pointed out:
The H-1B was the most common pathway for our generation of foreigners to stay in the U.S. The new USCIS policy under the Trump administration, through site visits, creates practical operational troubles for employers, which will inevitably lead to a significant decrease in employers' willingness to hire foreign employees, thereby making the path to a green card via H-1B even more difficult. Of course, things are unpredictable; perhaps by the time one goes to study in the U.S. and graduates, Trump may have left office, and policies might shift to the left again.
As the twin brother of the EB-5, the H-1B lottery rate has been declining year by year. It is precisely for this reason that Chinese parents are forced to apply for EB-5 for their children, which is the fundamental driving force behind the continued popularity of the EB-5 program.