Immigration and Visas

December 5, 2023

Will USCIS Proposal to Redefine H-1B Qualifications Limit or Expand Eligibility?

U.S. Citizenship and Immigration Services (USCIS) recently published a comprehensive proposed rule related to the H-1B visa program for skilled workers.

Experts agree that much of the proposal codifies current policies and practices in favor of most employers that use the program, but new regulatory language has raised questions. One aspect in need of further clarification is the program’s most important: the eligibility criteria for an H-1B approval.

USCIS is proposing to significantly modify the regulatory definition of a “specialty occupation,” the standard used to determine if a position qualifies for H-1B sponsorship.

Currently, the statute defines a specialty occupation as “an occupation which requires theoretical and practical application of a body of highly specialized knowledge” and “which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum.”

The proposed rule would codify the following:

A specialty occupation position can require a range of degree fields, as long as there is a direct relationship between each degree field and the duties of the position.
A position does not qualify as a specialty occupation if it only requires attainment of a general degree, without further specialization.
The requirement that the position “normally” requires a bachelor’s degree does not mean “always.”

Immigration attorneys disagree on whether the proposed regulatory language will be more limiting or more amenable for employers and workers. There’s even disagreement over whether the codifying language is indeed based on current practice.

“I get the impression that USCIS was trying to clear things up,” said Kevin Miner, a partner in the Atlanta office of global immigration law firm Fragomen. But the language in the proposed rule still leaves a lot of uncertainty as to how USCIS adjudicators will evaluate H-1B petitions, and that lack of clarity is a real concern, he said.

“When there’s a change in regulations, there is always some concern about how those regulations will be applied and what they will mean on a day-to-day basis,” said Angelica Ochoa, a partner in the Denver office of Fisher Phillips. “But for the most part, the proposed rule codifies a lot of the guidance and policies that USCIS has already been using for years. And having that certainty is beneficial for employers.”

Experts agree that codification of practices provides solid assurance for practitioners, but in this case, there is no clear consensus yet on what USCIS ultimately intends with its changes to the definition of specialty occupation.

Some experts say that allowing multiple degrees to qualify for a position is an expansive direction for the agency, while others argue that requiring that each degree directly relate to the position is a more restrictive position.

Multiple Degrees with a Direct Link

The proposed rule would revise the definition of specialty occupation for H-1B purposes to allow for a position to require a range of academic degrees, provided the degrees are related to the role. Immigration attorneys agree that the way USCIS puts this language into practice will be very impactful—it’s just not clear how that will be done.

Andrew Wilson, a partner at Lippes Mathias in Buffalo, N.Y., explained that during the Trump administration, USCIS was leaning toward challenging an H-1B petition where more than one degree was listed as potentially qualifying for the position. “So if an engineering position required either a degree in mechanical or electrical engineering, they were starting to say that is not a specialty occupation because you are not requiring a degree in a specific specialty,” he said.

“This proposed rule allows that a specific specialty does not have to be a single field of study. It can be more than one field of study, as long as there is a direct relationship between the required degree field and the position. For example, the H-1B candidate can have a degree in mechanical or electrical engineering to qualify for a position as an engineer, as long as the degree fields can be directly related to the position.”

Wilson conceded that the burden of proof will be on the employer. “If you submit a candidate with multiple degrees, that is fine as long as it can be proven that all the degree fields relate to the position,” he said.

Ochoa sees the change as beneficial for employers. “As an employer, you’re looking for a minimum of a bachelor’s degree in a specialty field, which has sometimes been interpreted as a singular field,” she said. “But in the real world, that is not necessarily the case. A qualified employee could have a degree in a number of related fields, with the skills required to qualify for the position. This proposal will allow for greater flexibility with respect to being able to hire people with a wider range of degrees.”

But others question how literal the agency’s interpretation of the new regulatory language will be. “The language in the proposed regulation could be used by adjudicators at USCIS to deny H-1B petitions where the degree field doesn’t precisely match what the adjudicator believes would be required to perform the role,” Miner said.

He added that in practice, it’s obvious that an applicant must have a learned skill set related to the role, and many times the person’s educational degree lines up with the role, but in those cases where the degree is not a direct connection, the applicant’s coursework can qualify eligibility.

“Right now, we can argue how the coursework qualifies the person,” Miner said. “If you have a role which requires quantitative analysis, you might hire somebody with a degree in physics, who completed quantitative data coursework, or you could hire someone with a finance or mathematics degree with the same quantitative data coursework to satisfy the role’s requirements. And maybe that understanding will continue, but if the agency intends to match the specific degree with the job and not take the coursework into account, that is concerning.”

USCIS gives an example in the proposed rule, saying that a petition with the requirement of “any engineering degree” in any field of engineering for the position of software developer will generally not satisfy the eligibility requirement.

“That’s just not accurate with reality,” Miner said. “The reality is that a chemical engineering program, for example, could include a lot of software engineering as a part of coursework. And that goes for other engineering studies as well.”

Other experts add that the focus on degree relevance neglects the importance of related experience. “It is a common mistake to think there is an exact correspondence between field of degree and occupation in the technical labor force,” said Mark Regets, a labor economist and senior fellow at the National Foundation for American Policy (NFAP) in Arlington, Va. “In reality, employers often hire workers who have gained the necessary skills through other coursework and experience. It is unclear how closely USCIS intends to require an exact match between occupational and degree titles, but even assuming they use very broad categories, many current workers with temporary work visas might not meet the new criteria.”

Regets pointed to NFAP research showing that 51 percent of U.S.-born workers and 18 percent of temporary visa holders working in computer occupations have a degree in a subject other than computer science or electrical engineering, and 48 percent of U.S.-born chemists and 15 percent of temporary visa holders have a degree in a subject other than chemistry.

Miner said the final rule must clear up this question. “There is hope that the final rule will contain language that will allow all of a person’s educational evidence to be properly considered,” he said. “USCIS would be far better off focusing on the entire course of study—including specific coursework completed—rather than the degree field.”

No General Degrees

One change in the regulation that will be problematic for some employers is that a general degree, such as one in business administration or liberal arts, without further specialization, is not sufficient to qualify for an H-1B position.

“The proposed rule codifies the longstanding notion that some bachelor’s degrees are general whereas others are specific, but provides little guidance in determining which degrees are too general,” said Adam Moses, senior counsel in the New York City office of Harris Beach.

“A general degree will not work under this new proposal,” Wilson said. “That’s always been the case, but it would now be in the regulation. A position for a marketing manager that requires a [bachelor’s degree] in business administration, for example, would not qualify for an H-1B. The degree would have to have a specialization in marketing or finance, for example.”

Moses noted that if the provision on multiple degrees is as restrictive as some experts believe, then listing a general degree as one acceptable degree could preclude the position from being approved for an H-1B.

“For example, if an employer advertising for a marketing director role would accept a bachelor’s degree in marketing, communications or business administration, the position would not meet the new regulatory definition of a specialty occupation,” he said.

Miner said he has worked with many employers who hire people with MBAs for certain roles.

“When I file for someone with an MBA, I don’t just say this person has an MBA,” he said. “I say that she did X, Y and Z in her coursework in order to make the broader argument. And maybe that will still be OK. But if USCIS takes the proposed language and says we will only look at the degree field from now on, and not what the person actually learned, that will be a problem. And it would be a big change from what is practiced now.”

‘Normally’ Is Not ‘Always’

One clarification that experts mostly welcome is the adoption of the definition that “normally” does not mean “always.”

“The proposed rule would define the term ‘normally’ in the H-1B regulations to state that it means ‘conforming to a type, standard or regular pattern,’ and that it does not mean ‘always,’ ” Moses said. “This change would clarify that just because there may be some employers who do not require a degree in a specific specialty for entry into an occupation, the occupation may nevertheless be a specialty occupation if a degree in a specific specialty is normally required.”

The term “normally” had been interpreted in a more restrictive manner during the Trump administration, and the broader definition will now be codified.

Wilson explained that during the Trump years, USCIS argued that an occupation was not a specialty occupation if it did not “always” require a bachelor’s degree.

USCIS claimed the definition of “normally” was “always” and used this to exclude computer programmers based on the Department of Labor’s Occupational Outlook Handbook, which said computer programmers “normally” had a bachelor’s degree as a minimum requirement for entry.

The Trump-era 2017 policy memorandum that redefined “normally” was rescinded by USCIS in 2021.

Ochoa said the proposed rule is simply codifying what has been the understanding among practitioners for many years: that a job usually or typically required a certain degree, even if some employers do not require it.

December 4, 2023

USCIS Proposes New Selection Method to Curb H-1B Lottery Abuse

One of the most significant changes in the recent proposed rule regarding the H-1B visa program is the proposal to modify the lottery registration selection system to reduce fraud in the first step of the H-1B process.

Three years ago, U.S. Citizenship and Immigration Services (USCIS) debuted an online registration system where employers seeking to employ H-1B workers subject to the annual cap can file a simple registration for each requested worker. Selected registrations are then entered into a lottery to determine who can file H-1B petitions. Electronic registration replaced submitting a complete H-1B petition for entry into the lottery, which was much more burdensome for employers and USCIS.

Many observers have long suspected that employers have been trying various ways to game the H-1B lottery system, even before the introduction of the registration step, from submitting multiple applications for the same person to setting up a structure of contract or consulting-vendor arrangements to file for the same person. And experts predicted that the relative ease of the registration process would make fraud even more attractive.

Earlier this year, the number of ineligible registrations submitted by multiple employers conspiring together was so high that the problem was publicly addressed.

USCIS said “several dozen” technology companies colluded to submit registrations for the same 96,000 workers, totaling 408,891 entries, to try to boost their odds of selection in the H-1B lottery. That’s over half of the 758,994 total registrations filed.

“Regulations prohibit the filing of multiple registrations by a single employer on behalf of the same individual employee, but they do not prohibit the filing of multiple registrations by different prospective employers on behalf of the same individual,” explained Adam Moses, senior counsel at Harris Beach in New York City. “According to USCIS, since 2020, the number of individuals with multiple registrations has grown significantly, as has the overall number of registrations, thereby slanting the odds of selection in favor of those beneficiaries with multiple potential job offers.”

Andrew Wilson, a partner at Lippes Mathias in Buffalo, N.Y., said attorneys had speculated that the way the registration process was laid out would invite the practice of multiple but related employers filing for the same beneficiaries. Employers collude on sharing the person’s name during registration and plan some kind of contracting arrangement if successful, he said.

“I came across one worker who said he had 12 registrations put in for him, and [he] only knew about seven,” Wilson said.

“The registration system has spawned unheard-of levels of abuse—the situation has become intolerable,” said Alan Lee, an immigration attorney in New York City. “USCIS statistics from the previous year even showed one beneficiary with 83 registrations.”

The proposed rule would change how USCIS conducts the H-1B registration selection process to reduce the possibility of misuse and fraud by introducing a worker-centric selection model, rather than an employer-centric model.

“USCIS proposes to change the random selection process to select from a pool of unique beneficiaries, rather than from a pool of registrations,” Moses said. “In other words, no matter how many registrations a person has filed on their behalf, their name will have the same odds of selection as another individual who has only one registration filed on his or her behalf. If a beneficiary is selected who has multiple registrations filed on his or her behalf, the beneficiary will have to choose which one to use.”

Essentially, each person with a submitted registration would be entered into the selection process once, regardless of the number of registrations submitted for them, improving the chances that a legitimate registration would be selected, according to USCIS. The agency also proposes to clarify that related entities are prohibited from submitting multiple registrations for the same person.

“It is absolutely the right thing to do to even the playing field,” Wilson said. “An employer playing by the rules and submitting one registration competing against other employers putting in 12 registrations for the same person isn’t fair.”

Up Against the Clock

Business immigration practitioners generally welcome the registration change but worry that there won’t be enough time for USCIS to issue a final rule before the next H-1B filing season begins in early 2024. The comment period on the proposed rule ends Dec. 22, and deliberations for a final rule typically take months.

“I’m hoping this part of the proposed rule will be put in place sooner rather than later, so we don’t have the situation we had last year repeat itself,” said Angelica Ochoa, a partner in the Denver office of Fisher Phillips.

USCIS understands this sentiment and mentioned that multiple final rules could come from the proposed rule, with the anti-fraud registration provision being a priority.

“USCIS has expressed particular interest in changing the registration system in time for the fiscal year 2025 selection,” said Leslie Dellon, senior attorney at the American Immigration Council in Washington, D.C. “However, since this would require the agency to issue a final rule and have a functional system by the spring of 2024, it seems more likely that USCIS could finalize a rule but delay the start date for the new registration system until a later fiscal year.”

USCIS said that any change would depend on agency resources.

“There appears to be doubt expressed in the proposed rule that the system change will be done on time,” Lee said. He added that USCIS cannot predict with certainty even when the final rule would be published and may need to delay the effective date of the registration system change if it determines that it does not have sufficient time to ensure proper functionality of the selection process, including completing all requisite user testing.

Lee added that the effective date may be postponed for other reasons as well, such as to avoid confusion that could result if the final rule took effect too close to the start of the registration period for the upcoming cap season or to avoid disparate treatment of registrations if the final rule took effect in the middle of the filing season.

Once the proposed change is in place, however, the number of registrations is expected to decrease significantly, giving employers a much better chance of sponsoring an H-1B worker.

Many employers will likely approve of the change to selecting H-1B registrations by unique beneficiary, said Stuart Anderson, executive director of the National Foundation for American Policy in Arlington, Va. However, he noted that the controversy over multiple registrations obscures a stark reality for employers: Due to the low annual H-1B cap, USCIS would have rejected over 75 percent of H-1B registrations this year even if workers with multiple registrations were excluded from the lottery.

“H-1B visas are highly sought after,” Ochoa said. “Even without the fraud and collusion, the real demand is very high and the chances of getting an H-1B are becoming less each year. Any regulatory change to enhance integrity and prevent misuse of the program will be gladly received by employers.”

August 4, 2023

Viewpoint: Talent Retention Strategies for Highly Skilled Migrants

The corporate landscape today is very competitive. Many employers are attempting to find and acquire top talent from the global market, given the rapidly aging population and skills shortages within the existing workforce. Skilled migrants typically are sought after, as companies require their expertise to remain competitive.

HR professionals and organizational leaders frequently take a customer-centric approach when establishing talent retention strategies, which means viewing their employees as customers. This entails studying employee profiles and developing a supportive ecosystem to assist in meeting their needs. However, skilled migrants are not all the same. In addition to assigned expatriates, organizations are increasingly recruiting self-initiated highly skilled migrants, who moved to a host country on their own and found a job commensurate with their level of expertise. Attracting such talent is difficult, but keeping them seems to be even more so.

Our research team interviewed highly talented migrants who pursued career opportunities overseas on their own and were hired for key positions (e.g., managers, IT architects, lawyers) by diverse firms in their destination countries. Specifically, we focused on Luxembourg since this country has been at the center of hiring international talent. The retention challenge is most acute there, and the business’ expertise can be valuable to any organization globally that’s attempting to retain highly talented migrants.

To identify retention techniques that will assist firms all over the world in retaining these individuals, we examined the following obstacles and career plans that these employees face when working in a host country:

Career Challenges and Strategies

The first challenge migrant employees face is attempting to fit in, as many struggle with assimilation. They are often required to learn new business rules and communication methods that differ from those of their prior employer and country of employment. As a result, some find it challenging to form deep bonds and integrate at work.

Managing a career mismatch is the second hurdle. Despite objective career success (e.g., a respectable title and above-average pay), migrant employees frequently feel disenchanted once they recognize that their professional commitments and expectations have not been met. For example, they may discover that they cannot advance without considerable local experience, or that their professional occupation is less prestigious in a new country. Furthermore, their actual job may differ from what they expected.

To overcome these obstacles, highly talented migrants typically adopt one of three career strategies:

Profile 1: Career Rebels. They attempt to plan and negotiate their careers with their employers by actively participating in interactions with upper management to advance their careers. As a tactic, for example, they may threaten to leave their workplace by demonstrating a new job offer.

Profile 2: Workhorses. They want to establish themselves via hard work and effort, so they volunteer, are always available, work long hours, and continue their education and training. For example, they may work 15-hour days and undergo training on weekends.

Profile 3: Career Conformists. They accept reality in its entirety. While acknowledging career hurdles in a new workplace and host country, they also concentrate on the positive aspects of their new life and career. They may, for example, emphasize that their quality of life has improved in the host country.

Retaining Highly Talented Migrant Workers

It’s critical to recognize that self-initiated highly skilled migrants are not the same as assigned expatriates or local employees. A lack of integration and discontent due to unmet professional expectations are two important variables that can have a substantial impact on skilled migrants’ productivity, increasing the danger of “brain waste” within the organization, resulting in higher turnover. Therefore, it’s critical to help migrants build better connections and a sense of belonging within the organization, as well as present a fair preview of future career prospects.

Organizations are advised to take the following steps to attain their retention goals:

Assist highly skilled migrants by helping with necessary documentation, locating suitable housing and arranging transportation for their possessions. This will make the transfer easier for these employees.
Administer specific onboarding training on corporate values, culture, expectations and communication styles.
Provide cultural-differences training to both locals and newcomers to foster a supportive, trusting culture and accelerate integration.
Offer language classes to boost communication among co-workers and develop a deeper sense of belonging. Although this appears to be rather obvious, few organizations provide this option.
Promote cross-cultural collaboration through team-building events and cross-functional projects that bring together employees from various backgrounds.
Offer mentoring and coaching from managers who have had similar experiences. “Highly skilled migrants are valuable talents that companies not only want to attract but also retain in a sustainable way,” said Alessandro Acconcia, senior manager of Organizational Change Advisory at PwC in Luxembourg. “Based on my experience, what they seek is a clear career path at a strategic level, which will enable them to envision their future growth, as well as administrative support at a logistical level to ease their transition. Therefore, it is crucial to provide mentorship or coaching from experienced colleagues who have undergone a similar transition, and offer them access to dedicated resources to facilitate this change.”
Make it easier for skilled migrants to use their talents to the fullest. This improves not just their individual performance but also their team performance.
Put in place procedures to minimize unconscious bias in the promotion selection process. Incorporating artificial intelligence technologies, for example, can help companies focus on objective criteria while reducing subjective misjudgments.
Encourage diversity at the highest levels of management, ensuring that leaders come from diverse backgrounds. This representation of diversity will motivate employees and show them that there are opportunities for progress regardless of their background.

At Zortify, an international natural language processing company that assists businesses with decision-making through artificial intelligence, HR uses a combination of AI-based personality assessment tools to minimize biases, highlight data and traits that are often overlooked, and make this data more accessible. Zortify uses this strategy in their own operations as well as to help other firms maximize talent performance.

One notable example is Zortify’s collaboration with Mitsubishi Electric’s German division. Zortify facilitated team member reshuffling inside the division, allowing employees (including those from abroad) to be given assignments that match with their capabilities, and stimulate collaboration with the most-compatible team members. This implementation led to a 15 percent boost in efficiency within the division and helped enable multinational talent reach its full potential.

“It’s crucial for international professionals to become visible and be given the opportunity to be recognized as high-potentials for senior positions,” said Patrícia Souza, senior human experience manager at Zortify in Luxembourg. “AI plays a fundamental role in eliminating biases during the talent selection process and the employee’s life cycle. It also helps by focusing on people’s actual experience and skills rather than their nationalities, beliefs, gender or race.”

Understanding how highly talented migrants approach different career issues provides a more detailed picture of this group of talents and a fertile ground for HR to design targeted retention strategies. Career Rebels, for example, appear to be the most difficult category of workers to retain, as they frequently negotiate with management directly and are more likely to leave if their professional demands are not met. Workhorses and Career Conformists, on the other hand, may be more passive and adopt different techniques for career advancement without confrontation.

For Career Rebels, an open dialogue with senior management and HR is crucial, and they will love working in an open culture with easy communication to negotiate their needs. On-the-job training opportunities are extremely valuable for Workhorses, who should be recognized for their efforts and ensured a proper work/life balance. And since Career Conformists take a more inactive approach to career strategizing, businesses should demonstrate to them that career advancement is achievable. HR should highlight examples of highly skilled migrants achieving job success and encourage Career Conformists to collaborate with these role models.

Overall, organizations need to establish a supportive ecosystem that satisfies the needs of highly skilled migrants while also retaining their top people by personalizing and implementing meaningful retention strategies.

Ksenia Usanova is a Ph.D. candidate in talent management and human resources management at the University of Luxembourg. Jelena Zikic is a professor of organizational behavior, HR & career management at York University in Toronto. Vlad Vaimanis a professor and associate dean of the School of Management at California Lutheran University in Thousand Oaks, Calif.

August 4, 2023

USCIS Holds Second H-1B Lottery

U.S. Citizenship and Immigration Services (USCIS) announced Aug. 1 that the second random lottery for fiscal year (FY) 2024 H-1B visas has been completed. The agency selected an additional 77,609 registrations in its second lottery drawing, bringing the total number of selections to date to 188,400.

The agency has notified all prospective petitioners from this latest round of selection that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the registration. The petition filing period will last until Oct. 31.

We’ve rounded up articles and resources from SHRM Online to provide more context on the news.

Record-Breaking Year

USCIS completed its initial lottery of H-1B cap-subject registrations in March. The agency subsequently announced that it selected 110,791 of 758,994 eligible registrations. The filing period for registrations selected in the first lottery ran from April 1 to June 30.

The number of registrations set a record—by far—but also resurfaced long-held concerns about employer fraud.

USCIS said that it has conducted “extensive fraud investigations, denied and revoked petitions accordingly, and continues to make law enforcement referrals for criminal prosecution.”

(SHRM Online)

Alternatives to the H-1B Visa

Each year, it becomes increasingly difficult to obtain one of the 85,000 H-1B visas allotted under the congressionally mandated cap. Employers and foreign-national employees are now reviewing their contingency plans for those whose registrations were not selected.

(SHRM Online)

Canada Reaches Cap for H-1B Visa Holders in Under 48 Hours

Canadian companies will tap into a larger pool of talented tech candidates in the coming months, after H-1B visa holders in the U.S. briefly had the opportunity to apply for an open work permit in Canada.

The initiative by the Canadian government allowed 10,000 applicants to work in Canada for three years. The maximum number of applications was received in less than 48 hours.

(SHRM Online)

Employers View Immigration as a Solution to Labor Shortages

A majority of employers agree that modernizing the U.S. immigration system will boost economic growth, lessen labor shortages and ensure that the United States maintains a competitive edge in attracting and retaining global talent, according to recent research from SHRM.

(SHRM Online)

July 26, 2023

Canada Reaches Work Permit Cap for H-1B Visa Holders in Under 48 Hours

This initiative by the Canadian government, which opened the morning of July 16, allowed 10,000 applicants to work for any company anywhere in Canada for three years, said Rakhmad Sobirov, an attorney with Sobirovs Law Firm in Toronto.

“The overall tech ecosystem in Canada will become richer and more vibrant with the influx of new talent,” Sobirov said.

The Canadian government received the maximum 10,000 applications by midnight on July 17, less than 48 hours after the initiative’s launch. The H-1B specialty occupations visa program had to close within days because of the demand, noted Emily Lukaweski, a Toronto-based attorney with Novate Legal and Goodlawyer.

This program will eventually benefit Canadian employers in the tech space, as they can onboard H-1B workers without taking extra immigration steps, said Ksenia Tchern, an attorney with Abramovich & Tchern Immigration Lawyers in Toronto. H-1B workers who have lost their jobs in the U.S., and whose H-1B visas are expiring within the next six months, can now stay in North America, she added.

Even though the Canadian government is no longer accepting applications for the H-1B visa holder work permit, Canada offers other immigration programs for tech talent, including intracompany transfers, federal government programs such as Global Talent Stream, and a Labour Market Impact Assessment document for temporary foreign workers, Sobirov said.

Canada was ranked the most attractive destination for immigrant entrepreneurs in 2023 by the Organisation for Economic Cooperation and Development (OECD). The group based its rankings on several factors, including access to capital, corporate tax rates, workforce skills, the strength of the country’s universities and overall quality of life.

“Canada has historically been a destination of choice for international tech talent,” said Trevor Neiman, the Toronto-based director of digital economy and legal counsel at the Business Council of Canada. “But we’re not the only country looking to secure the best talent globally. Competition for international tech talent is fierce and will only increase in the years ahead. This work permit stream for U.S. H-1B visa holders is a step in the right direction for Canada.”

Canada Reaches Out to Digital Nomads

The Canadian government is also rolling out a digital nomad strategy for highly skilled global workers in the tech sector. In June, Immigration Minister Sean Fraser announced a program that will allow people who work for an international employer to stay and work in Canada for up to six months at a time on a visitor visa. If they receive a job offer while living and working in the country, they can remain even longer, Fraser said.

The possibility of working in Canada for an employer based outside of the country is not something new, immigration experts noted. Rather, the government is now officially promoting it to invite digital nomads to Canada.

“Canada is a top destination for digital nomads due to its encouragement of long-term stays and the availability of permanent immigration options,” Sobirov said. “During their stay, they have the chance to explore Canadian living and potentially receive job offers. This opens up possibilities for switching to work permit status or even obtaining permanent residency.”

For people coming to Canada as a visitor, but also looking for a job, Lukaweski recommended organizing informational interviews with potential employers and meeting contacts in person at networking sessions.

“It can be hard to find a job in the country if you are outside of Canada,” she added. “The digital nomad strategy is a great way to do this.”

In the months ahead, the Immigration, Refugees and Citizenship Canada department (IRCC) will collaborate with both public and private partners to determine whether to implement additional policies to attract digital nomads, according to the Canadian government.

A distinct digital nomad category that will allow newcomers to Canada to remain for an extended period beyond six months would be helpful, said Henry Chang, an attorney at Dentons in Toronto. If an option becomes available for a remote worker to live in Canada for about two years, that would go a long way toward making Canada a top destination for digital nomads, Chang said.

“Canada offers the essential elements digital nomads seek, such as reliable internet access, safety and security, transportation infrastructure, cultural vibrancy, a diverse and welcoming society, a peaceful country and beautiful nature to help with work/life balance,” Sobirov said.

HR’s Role in Recruiting Tech Talent to Canada

Even though companies in Canada may find it challenging to compete with salaries in the U.S., Sobirov suggested that HR practitioners focus on the overall package they can offer to tech talent, such as Canada’s publicly funded health care system and laws that protect employees.

To recruit top tech talent, HR professionals in Canada could also highlight long-term growth opportunities, such as including compensation packages to support permanent residency, Lukaweski said. In addition, HR should consult with immigration experts to make sure their company is compliant with IRCC rules and regulations.

“Having knowledge of immigration rules and navigating the global tech talent landscape has become increasingly important for HR professionals,” Sobirov noted. “With the rise of global mobility and remote work, HR’s role has expanded to include relocation, immigration support, assisting talent upon arrival and onboarding international talent in a way so that they have the feeling of inclusion and belonging.”

Catherine Skrzypinski is a freelance writer based in Vancouver, British Columbia.

July 13, 2023

New STEM Fields Added to OPT Foreign Student Work Program

Foreign students with F-1 visas seeking work in a STEM (science, technology, engineering, mathematics) occupation have more options after eight qualifying degree fields were added to the eligibility list.

The Department of Homeland Security (DHS) July 12 expanded the STEM Designated Degree Program List used to determine whether a degree obtained by an F-1 student qualifies as a STEM degree, required for the student to be eligible to apply for a 24-month extension of their optional practical training (OPT).

OPT allows eligible F-1 students to obtain real-world work experience directly related to their major area of study. The STEM OPT extension is available to F-1 students who have completed 12 months of OPT and received a degree in an approved STEM field of study as designated by the STEM OPT list.

We’ve rounded up articles and resources to provide more context on the news.

The New Additions

The STEM list expansion is part of the Biden administration’s initiative to attract and retain foreign STEM talent. The following fields were added to the STEM OPT list:

Composite Materials Technology/Technician
Demography and Population Studies
Developmental and Adolescent Psychology
Geospatial Intelligence
Institutional Research
Landscape Architecture
Linguistics and Computer Science
Mechatronics, Robotics, and Automation Engineering Technology/Technician

(Immigration and Customs Enforcement)

Seeking Public Input

In January 2022, DHS initiated a public nomination process for degree fields to be included on the STEM OPT list.

DHS accepted nominations in four core STEM areas, including engineering, biological and biomedical sciences, mathematics and statistics, and physical sciences and considered related fields that involve research, innovation, or development of new technologies using engineering, mathematics, computer science, or natural sciences.

(Federal Register)

STEM Talent Prioritized

In addition to updating the list of academic disciplines that count as STEM, tThe Biden administration announced a series of policy changes in 2022 designed to attract and retain immigrants with education in STEM fields. The changes include expanding employment opportunities to exchange students in STEM fields, clarifying criteria for “extraordinary ability” visas to include STEM workers and easing the availability of permanent residence for foreign nationals with a STEM background.

(SHRM Online)

What HR Should Know About the State of STEM

Even amid massive layoffs in the tech sector, STEM skills are in high demand. It’s a paradox that many employers are facing—finding themselves needing to cut back on staffing levels while addressing gaps in STEM workforce development.

(SHRM Online)

June 29, 2023

Employers Wary of New Florida Law Cracking Down on Illegal Immigration

?A new Florida law designed to crack down on illegal immigration has prompted workers to leave the state and left employers short-staffed.

Manuel Lievano is chief executive officer of MCC USA Global Workforce Solutions, a company that helps organizations recruit foreign workers who come to the United States on appropriate visas. He has visited several fine dining establishments in Miami and found “they are freaking out.”

About 10 percent to 20 percent of employees are not showing up for work. That includes employees who normally work in the front of the house, in roles such as servers and hostesses, and in the back of the house, in jobs such as cleaners and dishwashers, Lievano said.

In some cases, major restaurant projects are being delayed because of a lack of workers. “Right now, companies are panicking because they don’t know what to do,” Lievano said.

And in some instances, construction projects are falling behind schedule—including two houses Lievano’s company is building for employee living quarters in Orlando—because of a lack of construction workers.

Mark Neuberger, a lawyer with Foley & Lardner LLP in Miami, has held webinars to instruct clients about the new law, SB 1718, which takes effect July 1. “It’s a concern for all employers,” that need to determine whether the law will impact their business, he said.

Employers are particularly focused on three provisions:

The requirement for employers with more than 25 employees to use E-Verify system to check employment authorization for new employees. Employers that do not use E-Verify three or more times in two years can be fined $1,000 a day, and their business license might be suspended.
The invalidation of driver’s licenses issued by other states that provide licenses to people who don’t have legal authorization to live or work in the U.S. About 20 states currently or soon will issue driver’s licenses to those who lack proper documentation, Neuberger said.
The risk of being charged with human trafficking if an employer helps a worker come to the United States unlawfully. If an organization invites someone to a business conference, reimburses them for the travel expenses, and then learns they are undocumented, businesses are concerned they would then be “guilty of human trafficking,” Neuberger said.

“The law is not clear on a lot of points,” he noted. The human trafficking provision says a person has to be “inspected” by federal authorities. So human trafficking may be alleged if someone has crossed the border illegally. But if someone enters the country lawfully and their legal status has expired, the law “seems not to apply,” Neuberger said.

Many workers who don’t have authorization to live in the United States have left Florida since the law was signed by Gov. Ron DeSantis in May. DeSantis, who is now running for president, has taken aim at illegal immigration during his campaign, calling for a major crackdown on illegal immigration, including ending birthright citizenship for those born in the United States to parents who are undocumented, mass detention and deportation of those who don’t have documents, and sending the U.S. military to the Southern border.

Samuel Vilchez Santiago, Florida state director for the American Business Immigration Coalition, which is pushing for national immigration reforms, said Florida had an unemployment rate of just 2.6 percent in May, and there are only 61 job applicants for every 100 open jobs in the state. “We’re in clear need of workers.”

Florida has about 800,000 undocumented immigrants, Vilchez Santiago said, and about half work in key industries such as construction and agriculture. “We’re going to see an economic impact.”

While it’s difficult to know how many undocumented immigrants are in the United States, the Migration Policy Institute, a nonpartisan think tank, estimated that there were more than 11 million undocumented residents in the United States in 2019. Close to 7 million were employed.

Many of those who are working might be paid in cash, or they might use false documents to obtain jobs. Workers can be charged with a felony for using false identification to get a job.

Some undocumented workers have family members who are documented. If families leave Florida, it will be a major blow because “we simply don’t have any other workers,” Santiago said.

While some experts predict a significant setback to the Florida workforce, Steve Cona III, president and chief executive officer of the Gulf Coast chapter of the Associated Builders and Contractors, said commercial contractors already comply with E-Verify regulations, and so far there have not been “major disruptions” to current construction projects.

“It would be foolish to believe this law wouldn’t have an impact on many industries,” Cona said, but “I do believe the impact isn’t as dramatic as what you are seeing on social media.”

This month, the new law led to protests and businesses shutting down in solidarity with immigrants across the state.

“There’s a lot of fear among the migrant community,” Vilchez Santiago said.

Susan Ladika is a freelance writer based in Tampa, Fla.

June 29, 2023

Employers Wary of New Fla. Law Cracking Down on Illegal Immigration

?A new Florida law designed to crack down on illegal immigration has prompted workers to leave the state and left employers short-staffed.

In some cases, major restaurant projects are being delayed because of a lack of workers. “Right now, companies are panicking because they don’t know what to do,” Lievano said.

Employers are particularly focused on three provisions:

The requirement for employers with more than 25 employees to use E-Verify system to check employment authorization for new employees. Employers that do not use E-Verify three or more times in two years can be fined $1,000 a day, and their business license might be suspended.
The invalidation of driver’s licenses issued by other states that provide licenses to people who don’t have legal authorization to live or work in the U.S. About 20 states currently or soon will issue driver’s licenses to those who lack proper documentation, Neuberger said.
The risk of being charged with human trafficking if an employer helps a worker come to the United States unlawfully. If an organization invites someone to a business conference, reimburses them for the travel expenses, and then learns they are undocumented, businesses are concerned they would then be “guilty of human trafficking,” Neuberger said.

Florida has about 800,000 undocumented immigrants, Vilchez Santiago said, and about half work in key industries such as construction and agriculture. “We’re going to see an economic impact.”

Many of those who are working might be paid in cash, or they might use false documents to obtain jobs. Workers can be charged with a felony for using false identification to get a job.

Some undocumented workers have family members who are documented. If families leave Florida, it will be a major blow because “we simply don’t have any other workers,” Santiago said.

“It would be foolish to believe this law wouldn’t have an impact on many industries,” Cona said, but “I do believe the impact isn’t as dramatic as what you are seeing on social media.”

This month, the new law led to protests and businesses shutting down in solidarity with immigrants across the state.

“There’s a lot of fear among the migrant community,” Vilchez Santiago said.

Susan Ladika is a freelance writer based in Tampa, Fla.

June 22, 2023

DOL Postpones H-1B, PERM Prevailing Wage Plans

?The Biden administration has postponed indefinitely its plans to raise the wages of professional foreign workers in the H-1B and employment-based green card categories, while reconfirming intentions to propose reforms to the H-1B visa program by the end of the year. Plans to publish new regulations allowing virtual review of Form I-9 documents and increasing immigration-related filing fees have also been pushed back.

Federal agencies typically announce their regulatory agendas twice a year; the latest updates are for proposals officials believe will be brought forward by the end of 2023.

Prevailing Wage Plans Postponed

The Department of Labor (DOL) has moved its proposal to raise prevailing wage rates for the H-1B visa and PERM programs to its long-term agenda, historically the first step to a proposal being shelved permanently.

A final rule proposed by the Trump administration raising wages for workers with H-1B visas and employment-based green cards was slated to take effect November 2022; however, it was vacated by a federal judge the previous year. The rule was issued in January 2021 as one of the last regulatory actions of the Trump administration.

The Biden administration showed interest in moving forward with the proposal but has now removed it from the DOL’s current regulatory agenda.

“It’s hard to say whether it is being shelved or just being given much longer lead time, but the delay is reflective of how complicated it is to change the prevailing wage methodology,” said Lynden Melmed, a partner in the Washington, D.C., office of Berry Appleman and Leiden and former chief counsel of U.S. Citizenship and Immigration Services (USCIS).

“The prior administration tried to move very quickly on this and heard from the private sector that there would be unintended consequences,” Melmed said. “There is real concern from the business community that the government had not fully appreciated the dynamism of the changing wages we’re seeing, and I think that this administration is trying to understand all aspects of the regulation before moving forward. In that sense, the delay is welcome news for employers.”

H-1B Visa Program Reforms

USCIS continues to pursue a rule amending aspects of the H-1B visa program first proposed by the Trump administration. The proposal is now scheduled to be published in December.

According to USCIS, the rule will:

Redefine the H-1B employer-employee relationship.
Establish new guidelines for employer site visits.
Clarify rules for F-1 students awaiting a change of status to H-1B.
Clarify the requirement that an amended or new H-1B visa petition must be filed if there are material changes to employment, including a new worksite location.

Melmed said one challenge with this proposal is whether or how the agency will try to address the H-1B lottery issues that arose this year, such as employers filing multiple applications for the same person.

“That’s a regulation that was moving along at a certain speed, but now the problems with the registration system will result in some urgency to try to move that regulation forward faster,” he said.

H-2 Visa Programs

Both the DOL and USCIS have maintained plans to announce changes to the H-2A and H-2B temporary worker programs this summer. The DOL plans to revamp H-2B prevailing wage rules, the temporary labor certification process and enforcement of H-2B employer obligations. In addition, the agency announced plans to amend the H-2A temporary agricultural worker program to improve working conditions and protections for farmworkers. Publication of the new DOL and DHS proposed rules is currently scheduled for August and September, respectively.

Fee Increases Delayed

USCIS has delayed to March 2024 the publication of a final rule to raise filing fees for immigration applications and petitions.

The agency proposed a number of significant filing fee increases for multiple employment-based immigration petitions and applications on Jan. 4, in part to help fund soaring asylum claims at the U.S.-Mexico border. The agency typically relies on user fees instead of congressional funding and stated that the new fees would allow it to “recover its operating costs, re-establish and maintain timely case processing, and prevent the accumulation of future case backlogs.”

The COVID-19 pandemic led to a dramatic reduction in immigration processing and revenue, and immigration caseloads have since rebounded to pre-pandemic levels.

USCIS last adjusted its fees in December 2016, with a weighted average increase of 21 percent. The latest proposal would represent a weighted average increase of 40 percent.

“The extent of the feedback from employers on this proposed rule was historic, reflecting concern about the size of the fee increases and concern about the quality of service that the government has been delivering under existing fee levels,” Melmed said. “To ask for higher fees as service levels fall is something you heard was not going to be acceptable from the business community. But fee rules are easy to adapt as they go through the rulemaking process, so all eyes are on whether they heard that feedback and are willing to revise it in the final rule.”

Virtual I-9 Inspection

U.S. Immigration and Customs Enforcement (ICE) moved its publication of a final rule making changes to the Form I-9 employment eligibility verification process from May to August. The rule may permit alternatives to in-person inspection of identity and employment authorization documents in the I-9 process.

SHRM recognized the proposed rule as signaling the government’s willingness to formalize pandemic-era flexibilities. Employers must complete Forms I-9 for all workers to verify their employment eligibility. During the COVID-19 pandemic, ICE waived the requirement that employers inspect documents proving employment eligibility in person in workplaces that were operating remotely, and those employers have been allowed to use alternatives like videoconferencing, fax or email. That flexibility was most recently extended through the end of July.

“We are encouraged by the efforts of [ICE] and their openness to adjusting the employment verification process to reflect the 21st century workforce,” said Emily M. Dickens, chief of staff and head of public affairs for SHRM. “Companies are not just capable of leveraging new technology for remote inspection, but now many companies are experienced in the process of remote Form I-9 documentation inspection. Technology has advanced to a point where the believed benefits of in-person Form I-9 preparation are now equaled or exceeded by remote or virtual methods. Simply put, a well-executed, permanent remote Form I-9 preparation option would transform the entire onboarding process for HR professionals.”

J-1 Rule Coming

The State Department plans to publish a proposed rule that would update the J-1 intern and trainee program rules. The proposal is slated for January 2024.

L Visa Plans Removed

USCIS dropped its plan to propose amendments to the L-1 regulations. The agency had previously suggested that it would revise the definition of specialized knowledge, clarify the definition of “employment” and “employer-employee relationship,” and potentially impose wage requirements in the L-1 category.

June 12, 2023

Bill Clinton Talks HR at SHRM23

?Former Democratic President Bill Clinton signed the Family and Medical Leave Act (FMLA) into law 30 years ago. On June 12, he spoke to more than 21,000 attendees at the SHRM Annual Conference & Expo 2023 (SHRM23) in Las Vegas and virtually, addressing HR issues and political struggles that spill over into the workplace.

He spoke about immigration and diversity, equity and inclusion (DE&I), offering solutions as the country suffers from what he described as an intense, deep-seated polarization that is preventing public officials from getting things done and doing the work they were elected to do.

“Politics is a job and we’re hired to fix things,” Clinton said. “So, we need to vote those in who will do that. It’s a mortal threat to democracy if those being elected today need an issue that is unsolvable to stay in office.”

Clinton, who was interviewed for 45 minutes by SHRM Board Chair Betty Thompson, chief people officer for Booz Allen Hamilton, also tackled other emotionally charged topics, including gun control and renewable energy.

Citing a close friend, a pastor from Arkansas, Clinton said, “[Politics] can’t be about demonizing others. We need to uplift each other.”

Immigration Reform

Clinton, 76, who served two presidential terms in the 1990s, said the immigration “chaos” on the border is a result of violence, global upheaval and drug cartels. Political leaders then play on people’s fears and put up roadblocks to immigration reform.

“Most immigrants wanting to enter are doing so because they want to work. But as long as one side is benefiting from the chaos, they don’t have a reason to solve it by passing immigration reform policies,” Clinton said.

He said the U.S. needs more workers for its “terrific and vibrant” economy, but workforce participation is low, and the population isn’t large enough to fill the open jobs we have.

“If you walk about Las Vegas,” Clinton said, “you can tell this town would be nowhere without immigrant labor.”

Following the session, Mindy Caldwell, vice president of HR operations for Coca-Cola Consolidated in Charlotte, N.C., said she agreed with Clinton that the country simply does not have enough bodies to fill all the job openings.

“We have to open up the conversation and think differently about how to solve it,” she said.

The need to reform the country’s immigration policy is top of mind for Monica Mena, HR supervisor at SK Food Group in Phoenix. “Lately, we’ve definitely seen a drop in hiring for filling our open positions,” she said after attending the general session.

Training for Today’s Jobs

Clinton called for government spending to be allocated toward more training programs, and he added that a college degree shouldn’t be required for every job.

“I’m hoping some of the infrastructure bill funds will go to training,” he said. “It needs to be a part of everything we do [as employers] because the skills needed for work are constantly changing.

“There are some older Americans who want to work and are perfectly capable of getting the skills but might lack the money to take the training they need. This is making our economy less efficient.”

‘Pro-Family, Pro-Work’ Policies

Some in the audience were moved when Clinton shared stories on emotional topics such as the FMLA and DE&I.

“I had spoken to a man whose daughter was gravely ill,” Clinton said. “He took three months off to be with her during that care, and after she died, he told me those last three months were the best ones in his life.”

Clinton said employment policies need to be both pro-family and pro-work because “this is not an either-or situation. Raising our children is the most important job that adults have.”

Regarding DE&I, Clinton said those who oppose it often do so because they believe it will lead to a company hiring the wrong person for a job for the wrong reason.

“The data is there that shows a diverse body will make better decisions for their companies than homogenous ones,” he said. “DE&I done right really works.”

Paul Bergeron is a freelance writer based in Herndon, Va.