In the News: Employers Be Prepared: H-1B Visa Petitions Are Under Attack 

Constangy partner Willard Krasnow authored an article published by the Retail Solutions and Business Solutions Networks on September 17, 2018, discussing the current status of the H-1B visa program, which gives employers the option to hire foreign workers for skilled professional positions on a temporary basis. The article, which was included on MSP Insights, VAR Insights, Retail Operations Insights, Retail IT Insights and Software Business Growth, outlines specific actions the Trump administration took to limit and discourage the H-1B visa program and what alternatives employers have, including:

• Increased Denials and Requests for Evidence – The administration has raised the approval standards for H-1B by the U.S. Citizenship and Immigration Services (USCIS), the agency that judges the filed H-1B petitions and applications. Additionally, there has been a significant increase in petition denials and in Requests for Evidence (RRFE) by the USCIS, which requires employers to produce more evidence to be approved in an H-1B case.

• More Pressure on Evidence Reporting in Initial Application – Consistent with the agency’s increased standards for approval of H-1B petitions and applications, the USCIS now allows adjudicators “to deny an application, petition, or request without first issuing a RFE or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility.” The purpose it to give adjudicators more authority to deny a petition or application without requesting more evidence first.

• Narrowing Definition of Specialty Occupation – The H-1B category is often viewed as a professional position requiring a bachelor’s degree or higher in a relevant field. However, the USCIS’s narrower definition that has increasingly been applied for minimum entry into an occupation includes occupations that require theoretical and practical application of highly specialized knowledge as well as a bachelor’s degree (or higher) in a specific specialty that has a direct correlation to the occupation at hand.

• USCIS Questions Acceptance of Entry Level-Paid Positions – Last year, the USCIS took the stance that Level 1, or entry level, roles were 1.) not adequately complex to meet the definition of a specialty occupation; or 2.) inconsistent with the position described in the employer’s petition. “It is expected that petitions with Level 1 wage rates will continue to be USCIS targets. Level 1 wage rates should be used in the appropriate case with caution and be documented properly in the H-1B petition,” said Krasnow.

Tech employers know that the H-1B visa plays a crucial role in their business, and employers and their attorneys need to pay attention to the new challenges surrounding the visas under the Trump administration and should prepare well-documented petitions in response.

To view the full article, please click here.