The “Invisible Wall” in the Current H-1B Visa Process

By: Sara Cross

Since the current presidential administration came into power in 2017, numerous policies have been enacted and implemented which aim to limit and restrict foreign nationals’ entry and stay in the United States. Some of these policy changes were not disclosed to the public, as they were dictated through internal agency memorandums; such is the case in the adjudication of H-1B visa petitions. In September, a Freedom of Information Act (“FOIA”) lawsuit, filed by the American Immigration Counsel on half of the American Immigration Lawyers Association (“AILA”), compelled the United States Citizenship and Immigration Services (“USCIS”) to release records relating to its adjudication of H-1B petitions.

H-1B visas are nonimmigrant visas which allow a foreign national in a specialty occupation to live and work in the U.S. for a specific period, usually in multi-year increments. USCIS is the agency within the Department of Homeland Security (“DHS”) responsible for evaluating and either approving or denying H-1B petitions filed by employers on behalf of the skilled foreign workers they wish to employ in the U.S.

In the past two years, many companies and immigration practitioners have experienced a significant change in how USCIS has adjudicated H-1B petitions, making their success much harder to obtain. The increasing difficulty in H-1B visa process is reflected in the overall numbers: in fiscal year (“FY”) 2015 the denial rate for new H-1B visas was 6%; in merely the first quarter of FY 2019 the denial rate has increased to 32%. Similarly, requests for evidence (“RFE’s”) on pending H-1B petitions have doubled between FY 2016 and FY 2019, resulting in an unheard-of level of RFE’s being issued by USCIS in 60% of pending cases during the first quarter of FY 2019.

The documents released by USCIS pursuant to the recent FOIA lawsuit, including internal policy memorandums issued in March and July of 2017, demonstrate the agency altered existing policies without adhering to the legal and regulatory processes necessary for such changes. These policy memo’s provide new instruction and guidelines for USCIS officers when adjudicating H-1B petitions.

One of the most significant policies the USCIS has altered is in relation to adjudicating H-1B petitions and relates to the standard for what qualifies as a “specialty occupation.” Originally used in relation only to computer programmers, the March 3, 2017 memo states that this change now may be “applicable to many applications.” The change, which seeks to align occupational requirements only with the Department of Labor Occupational Outlook Handbook, is significant because the handbook states that there are individuals who work in a particular position, such as computer programmer, with only an associate’s degree. The USCIS memo takes the view that when a position doesn’t necessarily require a bachelor’s degree, it would not generally qualify as a specialty occupation. This standard actually contradicts the relevant statute, because the law allows for certain specialty qualifications based on working experience. This unauthorized change is very concerning because it has the potential to eliminate many positions from what qualifies as a “specialty occupation.”

The FOIA documents also reveal the many roadblocks USCIS has enacted within the H-1B adjudication process in order to make it much more expensive, time-consuming and difficult to obtain an approval. As previously stated, the RFE rates have skyrocketed in 2019; one of the memo’s encourages adjudicators to require more evidence of employers. The memo also creates a new standard in the documentation required for the H-1B visa, stating that in order to satisfy requirements employers must provide, “a complete itinerary of services or engagement and the names and addresses of any end-client where the service will be performed for the requested employment period of the time requested.” In a lawsuit against USCIS, it is alleged that this contracts a 1998 law.

Furthermore, not only is this requirement ridiculously burdensome to companies, experts state that it is out of touch with how business actually operates. Additional roadblocks provided in the memo includes instructing adjudicators to no longer defer to prior adjudications when evaluating extension applications for current H-1B visa holders and allowing adjudicators to approve H-1B for very short periods of time, which would force a business to spend significant money and time repeatedly filing for the same employee.

Many of the changes instructed by these memos are now being challenged in lawsuits. However, until USCIS is prevented by a court of law from employing these changes, they will continue to affect H-1B petitions going forward. The increased application and documentation burden make it even more important to make sure that the right immigration attorney is hired for the petition process before USCIS.