On Mar 14 2018

Challenging Times for the H-1B Visa Holders and Their Employers

Immigration attorneys and their clients who utilize the H-1B visa program are entering into an extremely busy and stressful time of year: H-1B Cap Season. New changes to the processing of these cases, implemented at the beginning of 2017, have empowered adjudicators on taking a more restrictive interpretation on cases that, were viewed as routine, only a year ago.

In 2017, USCIS implemented the Executive Order “Buy American, Hire American,” resulting in these significant changes to the processing of H-1B cap cases filed in April 2017. Though there were no specific changes to regulations, the implementation of the Executive Order has particularly led to heightened scrutiny during the adjudication of H-1B petitions, and an increase in the number of requests for evidence (RFEs) for these petitions. The effects of these changes were seen in 2017’s H-1B cap season, in which premium processing was also suspended for several months, and the overall impact was months of delays and additional work for both employers and employees.

2017 was notable for the substantial increase in the number of RFEs, particularly RFEs challenging entry-level or “Level 1” wages and/or the qualification of certain positions as specialty occupations. Often, USCIS would argue that the job duties provided in the petition were too complex to be considered entry-level and were therefore not properly classified as a wage Level 1 position. Sometimes, however, USCIS took the opposite direction, and argued that since the position was at a Level 1 wage, it was not complex enough to qualify as a specialty occupation. Sometimes the challenges were contradictory; USCIS would argue that if an entry level position qualifies as a level 1 wage, then that job wouldn’t require a bachelor’s degree in order to qualify as a specialty occupation. Another unfortunate trend is that USCIS has begun to request additional information regarding the beneficiary’s qualifications. The scrutiny is often directed towards jobs where there are multiple degrees that would qualify a person for that position. In particular, occupations such as Financial Analysts, Market Research Analysts, and Computer Programmers are examined more closely than ever before. There are also emerging occupations that don’t have formalized programs widely offered by colleges yet, and if they are offered, there is not a wide pool of graduates with a degree in fields like data and analytics. In order to address this issue, immigration attorneys are tasked with showing that there are comparable backgrounds that are common in other fields that would qualify a person for this type of specialty knowledge.

In addition, the recent push from those in the anti-immigration movement against the post-graduate work permission known as Optional Practical Training (OPT), along with allegations of abuse of curriculum practical training (CPT) by some schools, has led to a recent focus on graduates and students who are working pursuant to practical training and are then applying for H-1B petitions. The USCIS will most likely continue its scrutiny for both OPT and CPT to prevent future fraud and to circumvent foreign students from directly accessing the U.S. labor market.

The second half of 2017 also saw the reversal of a 2004 Bush Administration guidance and presented another significant change to the processing of H-1B visa applications. In October 2017, USCIS issued a policy memo that eliminated the prior guidance to adjudicators to give deference to a previous approval of an H-1B visa. Practically, this means that a petition for an extension of an H-1B visa would meet just as much scrutiny as if petitioning for the first time.

Despite the absence of official rulemaking, these changes are being felt and are impacting employers and their H-1B employees. Even still, there are now rumors of more troubling immigration rules on the horizon, and some that are already in the rule making process. Employers and employees should keep a lookout for changes to H-1B standards, H-4 Employment Authorization, and F-1/M-1 Practical Training in particular. The H-4 Employment Authorization has been one that has garnered the most vocal opposition lately. The H-4 is an Obama-era regulation and is limited to spouses of H-1B nonimmigrants who have been in the U.S. for a long period of time or are far enough along in the process to obtaining his or her green card. The removal of this benefit would not only impact the families of H-1B visa holders, but also cause significant turnover for employers.

Looking ahead to the 2019 H-1B Cap, employers should continue to be wary of the heightened scrutiny in the adjudication of H-1B petitions going into the 2019 H-1B Cap. Employers should allocate time and resources to answer the increased number of RFEs for these petitions and should recognize that there is a high likelihood that these RFEs will cause delays in the adjudication of the petitions for their employees. Based on experience, responding to these RFEs requires a team effort including input from direct supervisors, employees, and third parties which include professors and industry specialists. In preparation for this, employers should consider having key information, such as company organizational charts, past job requisitions, and detailed job descriptions, up to date and on file in order to respond to RFEs quickly and efficiently. This preparation will benefit employers in today’s difficult H-1B adjudication environment.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the March 13, 2018 edition of the The Legal Intelligencer© 2018 ALM Media Properties, LLC. All rights reserved. 
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