Recent Trends In Adjudication of H-1B Petitions Reveal Increased Scrutiny by USCIS

Recent Trends In Adjudication of H-1B Petitions Reveal Increased Scrutiny by USCIS

Many studious readers of Scott Legal’s blog are familiar with the recent changes to the U.S. Immigration system arranged by the Trump Administration. One promise President Trump frequently made on the campaign trail was restrictive new measures on the H-1B program. The H-1B visa is a nonimmigrant visa suitable for individuals who have a bachelor’s degree or the equivalent and a job offer from a sponsoring employer in a specialty occupation that is related to their field of study. At times, the program has come under undue scrutiny because it is claimed the visa negatively affects U.S. workers ability to compete in the job market. The controversy mainly surrounds the program’s use by large IT consultancy firms who improperly apply for menial data entry positions. While the Trump Administration has been largely unable to accomplish any of its legislative agenda, recent trends indicate that USCIS has adopted a new policy of increased scrutiny of certain H-1B petitions. For more information on the H-1B program, please click here.

According to recent reports, approvals of recent H-1B petitions have slowed due to USCIS’s increased use of Requests for Evidence (“RFE”). A RFE is a request for additional documents after a reviewing officer has determined that the petition/application is lacking required evidence or that the officer needs more documentation to determine an applicant’s eligibility for the benefit sought.  According to statistics provided by USCIS, the number of RFEs issued in H-1B cases are up by 44 % compared to last year. This increase has caused the twofold problem of delayed application processing and increased administrative burden of the employer applicants and beneficiaries. The increase in RFEs appear to be targeted at those who improperly use the H-1B program, however the broadside approach by USCIS has led to significant backlogs in visa processing and introduced a new level of burdensome administration to the application process. Many of the RFEs issued under USCIS’s new policy approach are generic requests that often request duplicative information, request information not relevant to the application, or request information clearly outside the scope of their review.

While the regulations governing the H-1B program have not changed, USCIS under the directive of the Trump Administration, had changed the way it interprets them. This is consistent with the current Administration’s “Buy American, Hire American” Executive Order, which Trump directed the Secretaries of State, Labor, and Homeland Security, as well as Attorney General, to propose new rules and issue new guidance to protect the interests of U.S. workers in the administration of our immigration system, singling out the H-1B visa system, ordering the same entities to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled and highest-paid beneficiaries.

Scott Legal is closely monitoring the emerging trends of visa processing and posts regular updates to immigration law and policy on its blog post. For more information on the Trump Administration’s immigration Actions, please click here and follow our blog.