Group Representing Tech Companies Questions H-1B Adjudication Practices

A group representing some of the country’s top technology companies like Google, Facebook, Microsoft, IBM etc. sent a letter to the Trump administration on November 1, 2018 calling H-1B adjudication practices into question.

The group, Compete America addressed the letter to Secretary of Homeland Security Kirstjen Nielsen, USCIS director L. Francis Cissna and other high-ranking Department of Homeland Security (DHS) and USCIS officials stating that: “The agency’s current approach to H-1B adjudications cannot be anticipated by either the statutory or regulatory text, leaving employers with a disruptive lack of clarity about the agency’s practices, procedures and policies. This lack of certainty and consistency wreaks havoc among the nation’s employers which are hiring high-skilled Americans and foreign-born professionals.”

Compete America saidthat its members have reported “dramatic increases in the issuance of Requests for Evidence (RFEs) and denials regarding H-1B petitions for the last 18 months”.

More recently, they are experiencing a sharp increase in the issuance of Notices of Intent to Deny (NOIDs) and Notices of Intent to Revoke (NOIRs) concerning H-1B petitions.

Compete America have observed three changes in H-1B adjudication practices under the current administrationresulting in inconsistencies in adjudications:

  • H-1B petitions denied only because an entry-level wage is applicable for the applied position, even though the applied position clearly falls under the“specialty occupation” category.
  • H-1B petitions denied on the basis that the degree held by the sponsored foreign professional is not within a single field of acceptable study for an occupation.
  • USCIS has been denying H-1B petitions for occupations that may have some limited instances of jobs where a bachelor’s degree or higher is not required, even when those occupations normally do require that level of education for the majority of roles.
    USCIS is of the view that a bachelor’s degree is always required rather than a “usual requirement” for obtaining an H-1B visa.

Agency spokesman Michael Bars said in a statement, “The administration has been relentlessly pursuing merit-based policy and regulatory immigration reforms, including a thorough review of employment-based visa programs so they benefit the American people to the greatest extent possible in fulfilment of the President’s Buy American, Hire American Executive Order.”He added “USCIS will continue adjudicating all petitions, applications and requests fairly, efficiently, and effectively on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”

Amit Solanki, Immigration Executive

Keywords: USCIS, DHS, Trump administration, H-1B, Adjudication, Denials

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