Contingent workforce users are continuing to rely on H-1B visas — used to bring in highly skilled workers, such as IT professionals, to the US — even amid Covid-19. But things are getting more complicated.

Some US politicians have called for a moratorium on H-1Bs and other work visas that allow workers to come to the US while the unemployment rate remains high. The H-1B visas have also seen a higher denial rate over the years, according to a report released last week.

Here is the latest on H-1B visas:

Buyers Still Interested

Dawn McCartney, VP, Contingent Workforce Strategies Council at SIA, says contingent workforce users are still engaging H-1B workers on projects, but Covid-19 has added a layer of complexity along with our current government focus on immigration.

Letting H-1B holders work from home during lockdown requires an extra step and they must still receive pay if benched:

  • While it must be spelled out where the H-1B visa holders will work, many are now working from their homes in the US amid the pandemic, McCartney says. As there is some flexibility to working from home, one recommendation was if an H-1B candidate would be working from home more than 10 days consecutively that they should post their Labor Condition Application at their home, according to McCartney. This should allow their home location to be considered an authorized H-1B worksite. However, additional complexity occurs if their home location is not within a reasonable distance from the original work location listed.
  • Employers need to keep H-1B wage requirements in mind when formulating their furlough plans, according to Kelly Fortier, a partner and immigration sub-practice lead at law firm Michael Best & Friedrich LLP. Under H-1B “benching” rules, if an employer requires its H-1B worker to work fewer hours or lays off the worker even temporarily, the employer must still continue to pay the worker the wage that is listed in the H-1B paperwork.

Travel has been another concern, with some H-1B visa holders having difficulty re-entering the country and required quarantines.

There’s also the question of what the “new normal” will look like once the stay-at-home orders are lifted.

Senators Seek Moratorium

Last week, a group of US Senators sent a letter to the president calling for a 60-day moratorium on all guest-worker visas along with a one-year moratorium on some new non-immigrant guest-worker visas — such as H-1B visas — or until “national unemployment figures return to normal levels.”

Senators signing the letter included Tom Cotton, R-Arkansas; Ted Cruz, R-Texas; Charles Grassley, R-Iowa; and Josh Hawley, R-Missouri.

Such visa programs are a threat to the US labor market’s recovery, according to the letter. It also claimed the moratorium on H-1Bs would help existing H-1B holders in the US.

“Temporarily suspending the issuance of new H-1B visas would also protect the hundreds of thousands of H-1B workers and their families already working in the United States — workers who could otherwise be subject to deportation if they are laid off for more than 60 days,” according to the letter.

It added that there could be exceptions for granting H-1Bs to healthcare workers coming to fight the Covid-19 pandemic.

But others argue such a moratorium could do more harm than good.

“The ability to access H-1B’s actually helps US workers,” Mark Roberts, CEO of the TechServe Alliance, told SIA.

H-1B visa holders often serve on teams along with US citizens and permanent residents, providing critical expertise necessary to maintaining the work of the team in the US.

“While H-1B candidates usually make up a small part of a project team, they are a critical part to the work of US-based teams and keeping jobs in the US,” Roberts says.

Without access to that talent, companies may, regrettably, need to push work offshore. While the proposed moratorium reflects the senators’ long-standing, anti-immigration policy orientation, they are using the crisis as justification, he says. It would be ill-advised and there may not be legal authority to make such changes without an act of Congress, which established the H-1B program.

Roberts also notes the TechServe Alliance’s members, which include IT and engineering staffing firms, seek US talent but an adequate supply is not always there because the skills sought are also specialized and technical. The organization supports training of US workers, but it would not be possible to take someone from another industry — the restaurant industry, for example — and train them overnight in an IT skill such as .net.

In addition, an article in Quartz noted studies have shown restrictive immigration policies reduce economic growth and recovery.

Denial Rates

The National Association for American Policy, a nonpartisan research firm, noted in a report last week that denial rates for H-1B visa petitions for initial unemployment have soared in recent years. The denial rate was 30% in the 2020 federal fiscal year — up from 6% in federal fiscal year 2015.

However, the organization’s report also indicated demand was strong for such visas prior the pandemic hitting in full force. In March, the government received approximately 275,000 registrations for individuals to be eligible for the annual lottery for the 85,000 H-1B visas available under the existing caps.

H-1B Visa Discussion

Further discussion on H-1Bs is planned for Thursday during a conference call among members of SIA’s CWS Council.