On April 18, 2017, President Trump signed the Executive Order (EO), “Buy American and Hire American” which directed executive agencies to “propose new rules and issue new guidance . . . to protect the interests of United States workers in the administration of our immigration system.” Reading the text of the EO, most commentators believed that changes to the employment-based immigration system would not be immediate or substantive; the regulatory process is not quick, and to the extent new rules are proposed, employers would be provided with notice and could assess and mitigate the impact to their business operations. The reality has been markedly different, with changes occurring “in the trenches,” without the transparency of formal administrative procedure or official policy guidance.
In preparing for Fiscal Year 2019 H-1B season and the upcoming year, hiring managers must understand that the outcome of certain cases may be in doubt, even when extending a previously approved H-1B. We have observed significant increases in requests for evidence (RFEs) and denials, especially in connection with the following types of cases:
- Less skilled computer occupations: USCIS is regularly questioning whether a wide range of computer-related positions require a bachelor’s degree as a minimum for entry into the position. These include computer programmer, programmer analyst, computer systems analyst, quality assurance analyst, etc. Employers should expect additional scrutiny, burdensome requests for evidence, and possible adverse decisions for computer positions that are not classified as true software developer occupations.
- Entry-level positions: In cases where the Labor Condition Application (LCA) reflects a level 1 wage, USCIS is routinely issuing RFEs on the basis that the position does not actually require a bachelor’s degree because entry-level positions require only routine tasks, limited judgment, and a basic understanding of the occupation. It has become more difficult to establish that such positions qualify for H-1B status when the underlying LCA reflects a level 1 wage.
In order to qualify as a so-called “specialty occupation”, appropriate for H-1B classification, employers must show that the subject position is an occupation for which a narrow range of closely related degrees, at least at the bachelor’s level, is the normal requirement for entry into the occupation, or that the job duties of the particular position are so sophisticated and complex that such degree requirement is essential.
Employers are encouraged to strengthen cases by providing detailed job descriptions that include specific skills needed to perform the duties of the position. Cases are also stronger when the company has a consistent and established practice of hiring workers with a specialized bachelor’s degree for the position and where peer companies also require a bachelor’s degree for similar positions.
Employers can also expect higher instances of site visits by USCIS’s Fraud Detection and National Security Unit (FDNS), especially if the petitioner is an H-1B dependent employer or if the H-1B employee will work off site at another company. We recommend communicating with reception and other staff members that immigration officers should be referred to HR. In most cases the officer will request to speak with the employee.
Finnan, Fleischut & Associates will continue to keep our clients advised of important developments in this area. If you have specific questions about how these developments affect a current or possible future situation, please contact us.