The American Immigration Lawyers Association released USCIS documents following the settlement of a FOIA lawsuit that confirm their suspicions that USCIS has been limiting H-1B visas without legal precedent.
The USCIS documents made public are “H-1B RFE Standards” from March 23, 2017, and “H-1B AC21 Denial Standards, from July 17, 2017. These changes followed the Trump administration’s policy of “Buy American, Hire American,” and intentionally restricts highly skilled foreign workers from US jobs. These documents show USCIS adjudicators were instructed to deny visas in a way that breaks with legal precedents, overreaching Department of Labor regulations, and doing so without any regulatory or legal changes to base these sweeping changes in.
The two major points of impact are the limited scope of the employer-employee relationship, and specialty occupation. These changes have already begun to hurt STEM industries in the United States. The same companies that had over 50% of their initial H-1B filings denied in FY2019 only had a 4% or lower denial rate in FY2015. This reflects the overall trend of denial and RFE rates skyrocketing without any changes to H-1B regulations. In FY2015, the H-1B denial rate was 6% compared to 32% in the first quarter of FY2019 with over 60% of petitions receiving RFEs and only 60% of those getting approved.
Before the FY2017 memos, H-1B employees could be placed on non-productive status when there is lack of work provided by their employer, so long as the employee continues to be paid their prevailing wage salary. This is based on a 1998 law stating that the employer-employee relationship persists even on non-productive status. Now, to avoid Denial or RFE, employers must provide a complete itinerary of the H-1B employee’s work schedule for the duration of the visa.
Before the FY2017 memos, jobs qualified as specialty occupations if the normal requirement for minimum educational standards for entry into the position is a US bachelor’s degree or higher or its equivalent. Now, for jobs like computer programmer and other common H-1B STEM jobs, if the US Department of Labor Occupational Outlook Handbook states that sometimes employers will hire employees to the position with less than the stated H-1B requirements, the position does not meet specialty occupation standards. In doing this, the interpretation has changed from the educational norm to the exception when adjudicating whether or not a position meets specialty occupation standards.
Both of these changes put a much heavier burden of proof on H-1B petitioners. These adjudication directions were changed without notification to the public, and without any changes to law or regulation. Many have wondered if the RFEs they receive are even legal and the answer is no.
Does that mean if you receive a Denial or RFE there is no hope for visa approval? Absolutely not. At CCI TheDegreePeople,com we work with difficult RFE and Denial cases every year. While the past two years have seen a sharp increase in the rate of RFEs and Denials, the complexity and difficulty of answering these RFEs is no different from complex situations we have seen in the past. For example, the Nightmare RFE has been around for years, calling virtually everything about a case into question and being virtually impossible to answer by its own instructions. We have an over 90% success rate in answering these RFEs. Over the past two years, we have an over 90% success rate in answering Specialty Occupation and Wage Level RFEs. It just takes going back to the basic H-1B requirements and working from there with a creative approach and an understanding USCIS approval trends.
Declassification of these documents helps us understand what it really is USCIS needs to know about your case to approve the visa. Don’t let sliding approval rates be discouraging, we can help. Visit ccifree.com/ for a free review of your case. We will get back to you in 48 hours or less.