Scoring a High-Skill Visa Just Got a Little Bit Harder

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By Laura D. Francis

There haven’t been any regulations or new policies issued in response to the president’s “Buy American and Hire American” executive order, but there are signs it’s being implemented through back-door channels.

The order requires the federal agencies in charge of immigration to ensure that H-1B visas are awarded to the “most-skilled or highest-paid petition beneficiaries.” The temporary visas, which are reserved for “specialty occupations,” currently are awarded according to a random lottery.

But some immigration attorneys are noticing a shift in how U.S. Citizenship and Immigration Services responds to H-1B petitions.

The USCIS is issuing “exponentially more” requests for evidence in response to H-1B and other high-skilled visa petitions, attorney Sandra Feist of Grell Feist in Minneapolis told Bloomberg BNA Aug. 16. RFEs ask visa seekers to give the agency more information on certain topics before a decision is made on the petition.

The USCIS denies that anything different is going on behind the scenes.

Historically there’s a jump in RFEs when the USCIS starts processing H-1B petitions after the annual lottery, an agency spokeswoman told Bloomberg BNA Aug. 16. The USCIS is taking in more petitions during that time, and so the number of RFEs is going to rise because of that, she said.

Uptick in RFEs Is Recent

Feist said she currently has 19 pending RFEs, and for the first time since 2001, when she started practicing immigration law, she had to create a spreadsheet to keep track of them all. Every single one of the petitions she filed for H-1B visas subject to the annual cap received an RFE, she said.

“I’m receiving the same requests for cases that are totally different,” suggesting an underlying agenda rather than case-specific gaps in information, Feist said.

“USCIS is really reading petitions much more closely than they used to,” attorney Elissa Taub of Siskind Susser in Memphis, Tenn., told Bloomberg BNA. And the uptick in RFEs is recent—within the past two or three months, she said Aug. 16.

“RFEs have always been a part of my practice,” and they tend to ebb and flow, Taub said. But “this feels different to me,” both in terms of the number and tone of the most recent requests, she said. The agency appears to be “overreaching” and asking for information about foreign workers who aren’t even the subject of the petition, she said.

“I think they’re changing the rules by adjudication,” Allen Orr of Orr Immigration in Washington told Bloomberg BNA Aug. 16. The agency seems like it’s trying to implement a new policy without issuing any regulations or notice, said Orr, who serves as treasurer of the American Immigration Lawyers Association.

Wage Level Scrutiny

And that policy appears to be centered around H-1B wage levels.

Under the Immigration and Nationality Act, employers can choose one of four wage levels to pay an H-1B worker, depending on skill level, and get the wage approved by the Labor Department. That includes entry-level, or level one, wages.

But the USCIS is “putting petitioners between a rock and a hard place,” Taub said. The agency requires employers to prove that the position that is complex enough to be considered a “specialty occupation,” but then questions why, if it’s so complex, the employer only is paying an entry-level wage, she said.

If the USCIS was going to start requiring employers to pay more, it should’ve announced the policy shift before petitions had to be in for the H-1B lottery in April, Orr said. “It doesn’t seem fair to allow employers to begin the lottery process, file for these level one wages with the Department of Labor, have them approved,” and then get an RFE from the USCIS after filing a petition, he said.

It’s a “gotcha game,” he said.

Denials on the Horizon?

All three attorneys said they hope the RFEs aren’t a signal that the petitions ultimately will be denied. “You generally get an approval” once you respond to an RFE, but “I don’t know” what the agency will do going forward, Orr said.

“I personally have not seen an increased rate of denial on these cases,” Taub said. But RFEs give employers and their attorneys 84-87 days to respond, she said. Because they’re still in the midst of responding to these new RFEs, it’s too soon to tell whether the USCIS will also be denying petitions at a higher rate, she said.

Feist said the next time she files a petition she’s going to have a conversation with the employer about whether the wage level can be bumped up. “That’s exactly what they want us to do,” she said.

“There is no rule that says wage level one cannot be a specialty occupation,” Feist said. But “the agency is trying to unilaterally implement the president’s ideas about these things,” she said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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