H-1B Denials – The New Reality of Non-immigrant Life in these United States

The consultation was not going well! Between emotional outbursts berating the USCIS, the young man, originally from India, was trying to explain his situation and clearly not making it any easier on himself. I couldn’t blame him for feeling the way he did. After 12 years of being in this country in H-1B status (and an approved I-140 through his current employer), he had just been told that the USCIS had denied his extension because they did not feel he was working in a “specialty occupation”.

This, after no less than 4 extensions and a couple of amendments that clearly demonstrated the Service had recognized his work to be “complex enough” to qualify as a specialty occupation. This employee had been working at the same location for over half a dozen years, doing the exact same work. He was devastated and so was his family. His young son (H-4 dependent) was a rising senior and would now have to leave the country along with his parents.

Lately, I have been fielding at least one, or two H-1B denial consultations a week. This is not normal. For over twenty years, the Request for Evidence (RFE) process was used sparingly. Of course, there are always exceptions, but the average RFE rate was approximately 15-20%. This statistic has been turned on its head since the beginning of the year . The RFE rates have increased dramatically and the number of denials has begun to climb. For instance, here is a table from an article by the NFAP:

It is obvious the number of RFEs has trebled, but what is even more significant is the increase in RFEs issued when the beneficiary is from India.
With the Service shutting down premium processing, fear and anxiety rules the minds of candidates wanting to switch employers. No one wants to commit to a new employer when they have no way of knowing the outcome of the petition for months on end. The concept of “portability”, introduced to encourage mobility of H-1B workers, is no longer relevant. As one client put it, “I feel indentured to my current employer for the duration of the approval notice.”

The USCIS is slowly morphing into an enforcement agency with no thought as to how this process is likely to affect businesses that have come to rely on highly skilled workers. This is even more significant and complicated for beneficiaries of denied H-1B petitions. In June this year, the Service released a memo[1] that threatens to refer denials to Immigration and Customs Enforcement (ICE) and initiate Notices to Appear if they linger beyond the 10 days allowed for departure. As if this were not complicated enough, the Service issued yet another memo that allows USCIS officers, as of September 11th, the right to deny H-1B petitions without issuing an RFE or NOID.

To get back to my consultation, notwithstanding the devasted H-1B employee, I am particularly concerned about the effect denials have over H-1B spouses and children. Spouses with H-4 EADs must stop working because their status is tied to the H-1B nonimmigrant. Children are hardest hit because, for no fault of their own, they see their lives dislocated and their future disrupted. This is not the America that we know so well. No, this is a challenging, unforgiving place for nonimmigrants who can no longer afford to pursue the “American dream” without being tested every step of the way!

[1] On September 26th, the USCIS announced that the June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect. See: https://www.uscis.gov/legal-resources/notice-appear-policy-memorandum

2018-09-28T15:26:35+00:00Sep 26, 2018|