Reflecting the administration’s pledge to scrutinize visa programs for foreign workers, an increasing number of H-1B visa applications are encountering administrative challenges from U.S. Citizenship and Immigration Services (USCIS).

Between the start of the year and August 31, USCIS adjudicators issued roughly 45 percent more requests for additional evidence (RFEs) on H-1B petitions than they did over the same timeframe last year. According to USCIS data, more than 85,000 RFEs were handed down over the eight-month period. In contrast, the total number of H-1B petitions USCIS received during this time increased only marginally, by about 3 percent.

The Numbers

The graphs below highlight the numerical trends. While the total number of U.S. employers filing H-1B petitions for skilled foreign workers has steadily increased over the past several years, the number of RFEs issued spiked considerably between the end of the last administration and the start of the current.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Data Source: USCIS

H-1B applications received about 59,000 RFEs over the first eight months of 2016, while over the same period this year, 85,270 RFEs were issued.

The Implications

H-1B visas are among the most popular nonimmigrant visas available to aliens, allowing employers in the United States to recruit and employ skilled foreign professionals in “specialty” occupations ranging from computer engineers and financial managers to physicians and attorneys.

The use of H-1Bs is particularly prevalent in the technology industry, with large corporations in the sector, including Amazon, Facebook, and Microsoft, accounting for a sizeable share of the total number of H-1B visas available every fiscal year: 65,000, plus an additional 20,000 for beneficiaries with at least a master’s degree from a U.S. university. This numerical limitation is referred to as the H-1B cap.  

While employers contend that the H-1B category allows them to fill highly specialized positions for which few U.S. employees are qualified, critics of the H-1B—notably the president—argue that the visa allows companies to bypass or replace American workers with cheaper alien workers.

Earlier this spring, President Trump issued an executive order, dubbed “Buy American, Hire American,” which in part directed federal agencies to “protect the interests of U.S. workers.” To this end, the president singled out the H-1B visa, instructing the government to prioritize “the most-skilled or highest-paid” prospective beneficiaries. In line with the administration’s goals, USCIS rescinded long-standing policy in March, deciding that the occupation of computer programmer would no longer automatically be considered a “specialty” occupation for H-1B purposes. In April, the agency announced a new initiative to combat H-1B visa fraud, and the next month, alluded to imminent reforms of the H-1B category. These events occurred in the wake of USCIS’s suspension of premium processing for all H-1B petitions In March, which was only lifted for most H-1Bs this week. 

In general, the issuance of an RFE indicates that USCIS is skeptical of the eligibility of either the petitioning employer or alien beneficiary—or both. To counter the challenge, petitioners must submit additional proof of their eligibility and need for an H-1B visa, typically within 30 or 60 days. The process effectively prolongs adjudication by several weeks, if not months, resulting in increased costs for both the government and petitioners, while causing uncertainty between employers and the prospective employees with whom they plan to fill vacant positions.

Our Firm is Here to Help

Over the past several weeks, our firm has observed first-hand the same trend identified by the numbers. But by keeping an eye on changes in adjudication outcomes, the seasoned immigration attorneys at Zhang & Associates, with decades of collective experience successfully representing H-1B petitioners, are best equipped to tackle RFEs and navigate our clients through all their options, both in and outside of the H-1B category. In fact, a primary reason for our success over the span of more than two decades is that we don’t merely keep track of developments—we stay ahead of the curve, identifying trends first, recalibrating our strategies in response, and understanding the impetus to any changes made in immigration law or regulation.

It is clear to us how important the H-1B visa is to a host of industries and foreign nationals. If you are interested in a case evaluation at no charge, whether you have recently received an RFE on your pending H-1B petition or are contemplating your future H-1B or other nonimmigrant or immigrant visa options, we invite you to start a conversation with us here.

For more information on the H-1B visa, refer to our articles here.

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Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017

At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.

Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).

He will use his experience and expertise to deliver the highest quality of service to our clients.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, EB-5, PERM, I-485 I-130, H-1B, O, L and J cases. In the past twenty-one years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, P.C.

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Tel:	1-800-230-7040, 713-771-8433
Email:	info@hooyou.com
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(09/21/2017)