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Government Forced to Release H-1B Delaying and Denying Tactics

Since 2017, USCIS under the Trump Administration has essentially directed its adjudicators to find ways to deny H-1B petitions. The most recent statistics on Requests for Evidence (RFEs) and denials certainly support this, but evidence has been made available for analysis.

Through a FOIA request, instructional documents for USCIS adjudicators issued after President Donald Trump’s “Buy American, Hire American” Executive Order (BAHA) provide guidance on denying benefits to foreign nationals and the companies that want to hire them. BAHA has become the new “catch-all” for enacting immigration policies without legislative or public comment or support. This “non-transparent” process has been partially revealed.

Denials of H-1B petitions used to be rare occurrences. In 2015, the denial rate was 6% — now, it is 32%. RFEs were hardly an everyday occurrence – now, 60% of H-1B petitions receive RFEs. Two USCIS memos issued in 2017 and 2018 have boosted the RFE and denial rates and particularly affect computer programmers and IT professionals working at third-party locations.

In one released document, adjudicators are given close to 100 pages with step-by-step boilerplate for issuing RFEs — but the Administration’s discussion of the statutory support for these RFEs is redacted, perhaps because the new “rules” are not supported by the law. In another, USCIS makes clear that adjudicators should not defer to prior approvals and should remember the petitioners bear the burden of proof. The documents show that:

  • Adjudicators are directed to particularly analyze whether Level I and Level II wages are appropriate and issue RFEs asking for further information to justify the wage level.

  • USCIS instructs its adjudicators that even when a bachelor’s degree would appear to be the “normal” requirement for a position, if the Department of Labor’s Occupational Outlook Handbook (OOH) indicates that some individuals in the position might have only an Associate’s degree, the position may not be a specialty occupation. The petition should receive an RFE and the petitioner must supply more information to prove that a bachelor’s degree in a specific field is definitively required.

  • Most important, this instruction about the OOH is meant to apply to all kinds of positions — not just those that are computer-related. This explains why so many RFEs are challenging whether a job is indeed a specialty occupation.

Not only are these new “rules” leading to denials and more work for petitioners, they are creating more work for the USCIS and adding to crisis-level processing delays. USCIS used to think of itself as a “service oriented” organization, but now its mission focuses on enforcement and security.

Jackson Lewis P.C. © 2019

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About this Author

Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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Maggie Murphy Attorney, Immigration, Jackson Lewis Law Firm
Office Managing Principal

Maggie Murphy is the Office Managing Principal in the Austin, Texas, office of Jackson Lewis P.C. She concentrates her practice on advanced U.S. immigration and nationality law and global business immigration matters, assisting employers with immigration challenges facing international workforces.

Ms. Murphy has extensive experience in all areas of U.S. immigration law, but she primarily focuses her current practice on employment-based immigration for corporate clients and outstanding professors/researchers, as well as sophisticated immigration-related compliance work for employers of all sizes. Ms. Murphy has expertise in managing PERM campaigns for employers and in developing cost-effective strategies for companies and organizations interested in hiring professional foreign workers. She has organized massive I-9 and LCA compliance programs for Fortune 500 organizations. Ms. Murphy is Board Certified in Immigration & Nationality Law by the Texas Board of Legal Specialization. She is a frequent speaker on business-related, immigration compliance topics and has leadership roles in several state and national sections and committees.

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