H-1B Visa Trends: Is This the New Normal?

As a U.S. immigration lawyer, I find that I need to give myself a pep talk on a regular basis these days. My pep talk tends to go like this: “Responding to complicated Requests for Evidence (RFEs) by the federal government is my job. I specialize in assisting employers – universities, multinational corporations, public schools, small nonprofits, and many others – hire and retain top talent from around the world. I’ve spent the last 16 years building up my expertise and sometimes, I find myself on the front lines of a battle between the federal government and these employers. I like my work, I’m good at it, and I will win.” Great pep talk, right? Nonetheless, I can’t overstate my frustration when I receive five RFEs and one Notice of Intent to Deny– all unwarranted and, until recently, all unexpected, and all in a single day. This is the new normal.

Recently, U.S. Citizenship and Immigration Services (USCIS) released data indicating that H-1B approvals are down significantly from last year. This is, counterintuitively, not due to an increase in denials due to an official change in regulatory criteria or the laws governing these filings. Rather, I believe it’s due to a passive-aggressive strategy by USCIS to bury lawyers and their clients in requests for more and more documentation, and clarification on points that were already extremely clear in the initial filing.  In many cases, the documentation requested from USCIS was already submitted or is factually irrelevant to the case, and certain requests are being issued in all cases, regardless of the nature of the employer and the position. In short, it feels as if USCIS is waging a war of attrition, waiting for U.S. employers to throw up their hands and give up. But giving up would mean harm to our economy. Giving up would mean companies moving their operations and jobs overseas rather than staying in the U.S. and being subjected to this bureaucratic entanglement.

One new trend involves USCIS questioning the use of a “Level 1” wage (out of a 4-tier system). For example, in one of my cases, USCIS asked why a newly-graduated engineer would receive a Level 1 wage and whether, if the Level 1 wage is appropriate, the position truly requires at a minimum a Bachelor’s Degree. Others have also received such requests for newly-graduated physicians, questioning the Bachelor’s-level requirement for new physicians. USCIS is also asking for extensive documentation from the employer to prove that there is sufficient work for the prospective employee, even where the company does not provide consulting services to outside clientele. I recently received this type of request for a nonprofit employer that connects disabled workers with jobs in their communities. Another example of a recent Request I’ve received includes a data scientist who would be responsible for conducting complicated mathematical and statistical analyses on behalf of a major multinational corporation’s clientele. All types of employers are now receiving these types of punitive notices.

While an individual RFE is always deflating, receiving requests on nearly every application that is filed reflects what I believe is a larger, more insidious strategy by an agency that is attempting to change the laws that lay out specific criteria for employer-sponsored visas and green cards. This is particularly disturbing because the agency – rather than Congress – is enacting changes that will have widespread economic repercussions. I am currently digging myself out of RFEs for a handful of informational technology professionals, a Chinese musician, a missionary, a specialist working with disabled workers, an expert in securing online financial transactions, a data scientist, and several talented engineers with U.S. engineering degrees. These professionals have much to offer their U.S. employers and our local communities but right now their applications are stymied. These new practices by USCIS are going to serve as a deterrent to U.S. employers who seek to hire the best and the brightest international talent.

So I will pull together the reams of unnecessary evidence and keep my head held high, knowing that I am on the right side of this battle. I will remind myself and my clients that Congress hasn’t passed any new legislation changing the H-1B program and that USCIS is treading on very thin ice. These destructive bureaucratic stalling tactics could deter future petitions, and perhaps that is the intended effect. In the meantime, this attorney is going to give herself another pep talk and soldier forward knowing that my work is important and meaningful and beneficial to U.S. employers, the immigrant community, and to the U.S. economy as a whole.

by Sandra Feist