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File H-1B Petition; Watch for Requests for Evidence

The FY 2020 H-1B cap cases have been filed and 85,000 will be selected for adjudication. “Winning the lottery” is no longer considered the biggest hurdle, however.

Back in FY 2005, about 95% of all selected cases were approved and only about 22.3% received Requests for Evidence (RFEs). Recent USCIS statistics show that by FY 2018, only 84.5% of the cases were approved and 38% received RFEs, of which 62.3% were approved. By FY 2019, the chances of approval were even lower — 75.4% of cases were approved and 60% received RFEs, of which 61.5% were approved. In other words, about 40% of cases that received RFEs were withdrawn or denied.

The increase in RFEs and denials is one of the consequences of the Administration’s focus on protecting U.S. workers and the implementation of President Donald Trump’s “Buy American, Hire American” Executive Order (BAHA). Policies stemming from BAHA have included, among other things:

  • A crackdown on employees working at third-party worksites;

  • The rescission of guidance regarding deference to prior determinations of eligibility;

  • revised definition of what constitutes “specialty occupation” for H-1B purposes;

  • New guidance on “bona fide employer-employee relationship” especially with regard to STEM OPT; and

  • New definition of unlawful presence for students.

The “top ten” most popular RFEs (in order) from FY 2018 raised the following questions:

  • Is the position a specialty occupation?

  • Is there a proper employer-employee relationship?

  • Is there sufficient work for the employee at an off-site location?

  • Is the beneficiary qualified to perform the duties of the position?

  • Has the beneficiary properly maintained status?

  • Is there sufficient work for the employee in-house?

  • Does the LCA correspond properly to the position’s duties?

  • Is the beneficiary eligible for the extension based upon AC21?

  • Has the employer met the itinerary requirement for third-party locations?

  • Were the required fees filed?

Since 2014, USCIS has had to conduct a lottery every year. In the first year, 124,000 petitions were received. The numbers subsequently peaked at 236,000, but the numbers have decreased since then. Last year, about 190,000 cap petitions were filed. The recent decrease can be attributed in part to the growing uncertainty that employers face if they choose to petition USCIS for an H-1B worker.

Soon we will know how many cap cases have been filed for FY 2020, see the new crop of RFEs, and learn USCIS’ latest challenges. The public will also have a chance to see which companies are filing H-1B cases, how many they are filing, and what their approval rates are. This, along with recent changes to the LCA process, is part of the Administration’s focus on transparency.

Jackson Lewis P.C. © 2022National Law Review, Volume IX, Number 91

About this Author

Jessica Feinstein, Jackson Lewis, Employer Compliance Lawyer, immigrant petitions attorney
Of Counsel

Jessica Feinstein is Of Counsel in the Omaha, Nebraska, office of Jackson Lewis P.C. She specializes in representing U.S. and multinational companies in employment based immigration preparing nonimmigrant and immigrant petitions.

Ms. Feinstein specializes in representing U.S. and multi-national companies in employment based immigration. She has extensive experience preparing nonimmigrant visa petitions, including H1B, TN, L1, E, and H2B, as well as  preparing employment-based permanent resident petitions. She also...

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