RFE Issues with H-1B filings

Over the past several months USCIS has begun issuing significantly more RFEs or Requests For Evidence than in the past.  Below are some relatively new policy issues that USCIS has begun to implement in its review of H-1B filings.

Before getting to the new policy issues, note that if you’re planning to file H-1B applications this year, you should start the process immediately.  If you’re reading this article and it’s after April 7th, remember to start the process with your attorney in January of the following year (or sooner if you can).  You can read my previous blog post  (click here) to understand some of the reasons why these petitions are so time sensitive.

Now back to the new H-1B policy issues from USCIS.  The H-1B filings for this year, and likely for the duration of the Trump administration, will require more documentation and strategy than in past years.  Both you and your attorney will need to consider some, or all, of the following issues:

  1. Level 1 positions. All H-1B positions have a wage level associated with them.  The wage levels range from 1 to 4.  A Level 1 indicates the position requires less experience whereas a Level 4 would be assigned to the most experienced applicant who does not require any supervision.  USCIS has recently started to take the stance that Level 1 positions do not qualify as H-1B Specialty Occupations because a Level 1 positions are “entry-level” and not complex enough to be Specialty Occupations. You will need to work with your attorney to determine whether you still want to file as a Level 1, and if so, what types of evidence you can provide to justify the Level 1 application.
  2. Higher rates of RFEs. A recent article in the San Francisco Chronicle reported that USCIS issued Requests For Evidence at a much higher rate than in previous years and the denial rate has also increased.  You can read the article here: https://www.sfchronicle.com/business/article/More-H-1B-hopefuls-denied-under-Trump-data-show-12437578.php
  3. Random denials. As the San Francisco Chronicle article points out, there seems to be a randomness to the H-1B denials and RFE issuances.  H-1B petitions that were approved three years ago are suddenly being denied when renewed.  Other positions that would normally be approved without question are now receiving lengthy RFEs.  The article points to one example of an immigration attorney who received an RFE for a Rocket Scientist!
  4. Computer Programmers are no longer considered specialty occupations. Last year (March 2017) after all H-1B lottery filings were submitted, USCIS issued a policy memorandum that rescinded a policy memorandum from the year 2000 that said Computer Programmers are Specialty Occupations and can qualify for H-1B status.  The March 2017 memorandum takes the position that Computer Programmer positions do not require a degree in a specific field such as computer science or information systems and that many positions can be completed by someone who holds an Associate Degree instead of a Bachelor’s Degree, and therefore would no longer be considered Specialty Occupations for H-1B purposes.
  5. Previously approved H-1B applications will be reviewed as if they are new filings. In the past, USCIS policy was to give weight to previously approved H-1B applications.  If they previously approved an H-1B petition, they were more inclined to approve the renewal if it was filed for the same employer and the employee held the same position as the initial filing.  USCIS now takes the view that H-1B extension applications will not be given any special consideration and that they will review the extension applications as if they are new applications.
  6. Third-party worksites under heavy scrutiny. USCIS released a new policy memorandum on February 22, 2018 requiring substantially more information for H-1B filings where the employee is working at a third-party worksite.  The employer must now provide contracts and work orders to prove to USCIS that it actually has H-1B qualifying work for the employee and for the duration of time requested in the H1B petition.  USCIS may also accept technical documentation, milestone tables, letters signed by authorized officials at each ultimate end-client company where the beneficiary will work, and various other documents listed in the policy memorandum.  The more locations that are involved in the third-party placement, the more documentation that will be required to prove the employer controls the employment and has enough work for the time requested in the H-1B application.

As you can see from the above points, the H1B petition has come under attack by the current administration.  The applications have become increasingly difficult to prepare and to get approved.  The best policy is to start the process early with your immigration attorney, and to have solid documentation to prove your case to USCIS.  This is clearly a time when a good immigration lawyer with several years of experience with H1B filings will prove invaluable to you.  Your attorney will help you determine which, if any of the issues above, will affect your H-1B filing.  They should also help you with determining which types of evidence to include with your applications.  This is a stressful time for many in the immigrant community and for the employers who employ them.  Don’t give up on filing the H-1B petition, instead, work to understand what is required for the application and act accordingly.

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