This document summarizes a presentation about navigating new H1-B and L1 visa guidelines under the Trump administration. The presentation discusses how the administration's goals of increasing wages and employment for US workers through more restrictive visa policies may not address real issues, as H1-B workers already earn on average $90,000 per year and US tech unemployment is low. New rules are outlined, including considering any action inconsistent with the visa terms within 90 days of entry as fraud. For H1-B visas specifically, USCIS has begun challenging job offers at the lowest approved wage level, claiming these jobs do not qualify as specialty occupations. The presentation provides recommendations for overcoming these challenges by emphasizing job requirements over wages and

1. Day 1 : Global Immigration Workshop
Navigating through ‘America first!’:
What do the new H1-B and L1 guidelines mean?

2. How to Navigate the
New H-1B and L-1
guidelines
•Jake Lipman & James Wolf
•VisaWolf
•Lipman & Wolf LLP

3. Background: Trump’s New Policies
GOAL: create higher wages and employment rates for U.S. workers
POLICY: visas to be awarded to the most-skilled and highest-paid foreign
workers
PROBLEM: Policies try to fix problems that don’t really exist
• Policy: increase wages for US workers, but H-1B workers already paid on
average nearly $90,000/yr
• Policy: Increase employment of US workers, but US Tech worker
unemployment rate less than 3%
• Laws do not limit H or L visas to “most-skilled and highest-paid foreign
workers”

4. Changes for all visas: New 90 day rule
• New Rule: any act taken within 90 days of entry that is
inconsistent with the visa is considered FRAUD
• Issues
• B-1, F-1, J-1 visa or visa waiver but file AOS within 90 days of entry
• B-1 visa but unauthorized employment within 90 days of entry
• H-1B visa but no employment during the 90 days after entry
• Possible Issues
• Any visa but file COS within 90 days of entry
• H-1B with Employer A but file EOS with Employer B within 90 days after entry
• Retroactive rule?

5. Changes for L-1 visas: None yet
• Approval Rate: Unchanged post-Trump
• Processing Time: Possibly longer with background checks, etc
• Possible changes so that L-1 visas are awarded to the most-skilled and
highest-paid foreign workers
• More scrutiny on L-1B specialized knowledge
• Require higher education
• Require more experience
• Require higher wage
• Shorter period of stay
• Training of US workers to replace the L-1B

6. Changes for H-1B visas: USCIS challenges Level
1 Wage Offers
“Job offer is more complex than Level 1 wage, so
the LCA is not valid”
“Level 1 wage on LCA means the job is not
complex enough to be a “Specialty Occupation”

7. Context: USCIS challenges Level 1 Wage Offers
Review H-1B adjudication requirements
1. Specialty occupation: job requires a specialized bachelor
degree
2. Specialty worker: employee holds the specialized
bachelor degree
3. LCA: employer provides prevailing wages and working
conditions (and if H-1B dependent or violator, non-
displacement, recruitment, and hiring)

8. Context: USCIS challenges to H-1B petitions
Previous USCIS review standards
• Specialty occupation: job requires a specialized bachelor degree
1. Specialized degree is normally required - O*NET
2. Specialized degree is the Company Standard – hiring practices
3. Job Complexity requires the Specialized degree – expert
opinion
• Specialty worker: employee has the specialized degree
• Education evaluation
• LCA:
• Ensure O*NET codes on LCA and I-129 match

9. Overcoming USCIS challenges to Level 1 Wage Offers
Response 1: “Specialty occupation” determined by O*NET
occupation, not LCA Wage Level
• Provide completed DOL Wage Guidance, Worksheet
• Cite Job Zone 4 & 5 requirements from O*NET
• Cite DOL regulations: “wage levels are determined only after
selecting the most relevant O*NETSOC occupational code
classification.”

10. Overcoming USCIS challenges to Level 1 Wage Offers
Response 2: “Engineering” and “Business Specialties”
are legally identified “Specialty Occupations”
• Cite the INA: “Engineering” is a listed “Specialty
Occupation”
• Cite USCIS Regulations: “Engineering” and “Business
Specialties” are listed “Specialty Occupations”

11. Overcoming USCIS challenges to Level 1 Wage Offers
Response 3: “Specialty occupation” is determined by
industry standard, company standard or complexity,
not LCA Wage Level
• The AAO: USCIS reviews the LCA only to determine if the occupation
in the LCA matches the occupation in the H-1B petition
• The AAO: “Level I wage-designation does not preclude a proffered
position from classification as a specialty occupation”
• US Congress: The H-1B program “recognizes that certain entry-level
workers with highly specialized knowledge are needed in the United
States . . . .”

12. Preventing USCIS challenges to Level 1 Wage Offers
• Provide RFE type evidence upon filing
• Prepare LCA / H-1B for Level 2 in similar occupation
Ex: SW Devpr, Systems Level 1 wage = Comp Syst Engr/Arch Level 2
• Use a non-Dept of Labor wage survey
• Pay for premium processing (?) for cap case

13. Thank You