From all indications, it is now apparent that the Trump administration policies have taken extraordinary precedence over business interests and long-established Service policy when it comes to the H-1B Visa. All year long, the administration has waged a silent and sometimes insidious battle to shut down the legitimate use of this visa category.
It all started with the now notorious executive order in April this year, entitled “Buy American and Hire American”. Unfortunately, this half-baked policy is being treated as carte blanche by the USCIS to overhaul anything and everything. The Service even went to the extent of rescinding and invalidating its own past actions! This sadly mirrors the brashness of this President, who believes his predecessors and past administrations were either incompetent, simply ineffective, or plain wrong on everything. He “alone”, he believes, can bring order and prosperity!
In keeping with this new “throw the baby out with the bathwater” attitude, the Service began issuing thousands of Requests for Evidence (RFEs) that have crippled many a Law Firm, and cast doubt on the future of the H-1B program. In fact, Reuters reports that there has been a 45% increase in the number of RFEs. That percentage appears to be increasing because of changes being made to the H-1B program every day.
Some of the RFEs we have seen to date raise the following issue(s):
- a Level 1 salary as selected on the LCA is not appropriate for the position as compared with the complexity of the job duties listed on the supporting letter from the employer; and/or
- The Level 1 salary indicates an “entry level” position and therefore does rise to the level of a specialty occupation requiring the services of an H-1B professional
- A combination of #1 and #2
- Positions like “Systems Analyst”, “Computer Programmer”, etc. are not considered “specialty occupation” because “some” employers may not require a bachelor’s degree for these positions
These RFEs have slowed down approvals and consequently, halted the free movement of H-1B professionals to the U.S.
The program has been thrown into further confusion by action taken separately by the Office of Inspector General (OIG). On October 20th, the OIG came out with a report and a memorandum issued to the USCIS specifically stating,
The report contains four recommendations aimed at identifying actions the U.S. Citizenship and Immigration Services can take to improve the Administrative Site Visit and Verification Program and targeted site visits to better safeguard the integrity of the H-1B Program. Your office concurred with all recommendations. Based on information provided in your response to the draft report, we consider all four recommendations open and resolved. Once your office has fully implemented the recommendations, please submit a formal closeout letter to us within 30 days so that we may close the recommendations. The memorandum should be accompanied by evidence of completion of agreed upon corrective actions.
The USCIS has 30 days to comply and that date would be November 20, 2017.
As a result, we have seen stepped up site-visits and targeted vetting of H-1B employers. In some cases, Officers have followed up the initial site visit with additional questions emailed to the employer, the employee and in some cases to the End-Client.
U.S. Consulates have also stepped up the review process. Recently, a corporate client received a call from an overseas post at 11 PM on a Friday evening! The caller identified himself as an Officer with the Consulate and proceeded to verify what steps the employer had taken to recruit U.S. workers prior to hiring the H-1B professional. Clearly, intimidation appears to be a tool that is being added to the adjudication arsenal!
Finally, the senior Senator from IOWA, Senator Chuck Grassley (R), who has repeatedly called for an end to the H-1B program, appears to be indirectly shaping USCIS policy. His staff are being appointed to senior positions at the USCIS. For instance, in April of this year, Kathy Nuebel Kovarik was appointed Chief, Office of Policy and Strategy at the USCIS. The appointment notice on the USCIS website reads:
Nuebel Kovarik previously served as an advisor to DHS Secretary John F. Kelly. She worked for the U.S. Senate for more than 17 years, most recently as professional staff on the Senate Committee on the Judiciary under Chairman Chuck Grassley of Iowa. During that time, she worked on all immigration legislation, including proposals focused on E-Verify, H-1B visas and EB-5 reform. She also was the staff director of the Senate Caucus on Foster Youth to help advance policies affecting foster youth and families.
Considering these actions by the administration, it is obvious that the H-1B program faces an existential threat from all quarters. If businesses don’t seek the ear of this administration and speak up, it may be too late. Let us remember what the great bard said:
“…wise men ne’er sit and wail their loss,
But cheerly seek how to redress their harms.”
-Henry VI, Act 5, Scene 4