Employers Still Feeling Effects of Added Visa Scrutiny

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By Laura D. Francis

The Trump administration is implementing the president’s Buy American and Hire American executive order, and employers are feeling it.

Between January and August 2017, U.S. Citizenship and Immigration Services issued 85,000 requests for evidence in response to petitions for H-1B skilled guestworker visas, American Immigration Lawyers Association President Anastasia Tonello said June 14. That’s a 45 percent increase over the same period in 2016, she said.

That was before October 2017, when the USCIS issued a new policy that could add more scrutiny to visa renewals, which previously saw a lower level of inquiry, according to Tonello. The new policy removes any deference to prior agency decisions where an employer seeks to extend someone’s H-1B visa, said Tonello, who practices with Laura Devine Attorneys in New York.

That means a petition to extend an H-1B visa receives the same level of scrutiny as a petition to sponsor someone’s H-1B visa the first time around.

More Requests for Evidence

Employers seeking visa extensions have started seeing requests for proof to show that the visa holder’s job meets the definition of “specialty occupation” under the law, she said at AILA’s annual conference in San Francisco.

The approval rate for H-1B visas also has dropped to 85 percent in the first quarter of fiscal year 2018, down from 90 percent for FY 2017, Tonello said.

That may seem like a high approval rate, she said, but employers that petition for the visas are “self-selecting": there’s too much money involved for them to file a petition that isn’t likely to be approved.

Green Card Scrutiny

It’s not just H-1B visas that are getting extra scrutiny from the administration, Tonello said. Employers sponsoring workers for EB-1 green cards for immigrants with extraordinary ability also are seeing an increase in both requests for evidence and denials, she said.

Tonello herself received a request for evidence on a petition filed on behalf of an employer seeking to sponsor a sound engineer who had won three Grammys for sound engineering. The RFE asked the employer to prove that winning a Grammy is relevant to whether a sound engineer has extraordinary ability in his or her field, she said.

Employers increasingly view litigation as the most viable option for challenging visa denials, AILA President-Elect Marketa Lindt said. Lindt practices with Sidley Austin in Chicago.

It’s often difficult to get employers to go to court rather than pursue administrative options, but they’re starting to realize that “litigation is the way this needs to happen,” she said.

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