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New Merit-Based Immigration Plan Could Affect H-1B Visas

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The Trump administration is planning to release a new executive order that could create a merit-based immigration system that fundamentally opposes the current system. A recent decision from the Supreme Court on the Deferred Action for Childhood Arrivals (DACA) program gave the Trump administration more ideas for their immigration policies that could affect workers currently holding H-1B visas or employers who would like to sponsor H-1B visas in the future. While the rules have not yet been implemented, anyone who needs immigration assistance should reach out to an experienced immigration lawyer.

The DACA decision made by the Supreme Court allowed the program to continue, but those who have immigration concerns believe that the decision could allow unlawful immigration policies. In short, some believe the DACA decision expands presidential authority, but there are others who believe the decision restricts it. These executive actions might increase as the nation builds up to the general election. In fact, President Trump has already taken action that signals his desires to make changes to current immigration policies.

How Will the Proposed Rules Affect H-1B Visas?

The H-1B visa is an employment-based visa that is designed to help employers bring employees to America to perform specialty jobs. These visas are often sponsored by private companies, but the government also uses these visas to bring in skilled workers. At the same time, the H-1B visa could be affected by President Trump’s proposed immigration policies. Changes include how spouses and children come to America with H-1B workers and their prospective employers.

H-1B visas could be restricted based on proposed rules from the Trump administration. Someone who is coming to America on an H-1B visa may still receive the sponsorship they need, but they might not have the opportunity to bring their spouse and children to America, or their spouse might not be able to work on an H-1B visa. This particular issue might split up families when certain workers feel that they have no choice but to come to America alone.

What Defines Merit?

Immigration experts believe that America’s needs go beyond skilled workers with doctorates. A former immigration aide noted that workers, such as nurses, home health aides, and skilled professionals without doctorates, help the economy move forward. Engineers only need a master’s degree or equivalency to work in most areas; the same is true for teachers, lawyers, and high-end financial workers.

Opponents of such a policy argue that people who have already been admitted to the United States through traditional channels have merit that was adjudicated when they initially went through the process. Given a potential change in policy, the government would make decisions about who enters the country and who has merit to do so. That stands in direct opposition to the current system that allows businesses to determine who has merit and who should enter the country based on their desire to provide sponsorship.

A moratorium was put into place until January 2021 that would halt U.S. Consulates issuing H-1B visas for specialty workers, as well as H-4 visas for dependents. This moratorium would impact workers in the technology industry substantially. President Trump recently stated that he believes H-1B visas should be used as an outsourcing tool for companies to create American jobs.

What is the Purpose of a Merit-Based Immigration Program?

Merit-based immigration has become a hot topic over the last several years. New executive orders may include a new program that will redefine what a specialty job is and who can accompany specialty workers, as well as what an employer-employee relationship entails. Additionally, a merit-based program would turn away those who have already been admitted to the country in specialty occupations. Restrictions have also targeted L-1 visa holders. These workers are typically transferred from an international office to an office the company manages in America. At this time, those rules have not yet been released.

How Else Will H-1B Visas be Affected?

The H-1B visa lottery may be reordered based on salary, but attorneys do not believe that rule could survive challenges in court. The Trump administration may also try to change the way H-1B visa extensions work. If workers try to extend their visa past the six-year mark, they may run into other issues. As these employees are waiting for their green card, they might be forced to go through the labor certification process a second time. If H-1B visa holders do not pass labor certification again, they will need to return to their home countries.

Moreover, the Trump administration has been considering a points-based system that would replace current visa categories and require those who accompany H-1B visa holders to also have merit of some kind. Since these rules have not yet been released, it is difficult to know what the Trump administration will decide or how those rules might be challenged in court. If one is concerned about the upcoming proposed rules, it is important to retain legal counsel.

Philadelphia Immigration Lawyers at Surin & Griffin, P.C. Assist Clients with Visa Concerns

Speak to one of our accomplished Philadelphia immigration lawyers at Surin & Griffin, P.C. when you need assistance with immigration matters, visas, or litigation. We help families and individuals properly apply for visas. Call us today at 215-925-4435 or contact us online for an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and nationwide.

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