Anastasia Tonello quoted on the effects of the Buy American and Hire American executive order

Bloomberg Law: Daily Labor Report

20 December 2017

High-Skill Visas Getting More Government Scrutiny
Immigration attorneys have said for months that it's becoming increasingly difficult to get an H-1B specialty occupation visa. They're right.
Evidence requests on H-1B applications shot up from 16.7 percent of all adjudicated applications in August to 46.6 percent in November, according to data provided to Bloomberg Law Dec. 19 by U.S. Citizenship and Immigration Services. The 46.6 percent figure is also up from November 2016, when the rate was 27.2 percent.
Requests for evidence, or RFEs, seek additional information from the employer to help the USCIS adjudicator determine whether the position qualifies for the visa.
During that same time period, H-1B approval rates fell from 92.4 percent in August to 82.4 percent in November. That approval percentage is the lowest it's been in the past few years. The other lowest approval rate was 88.9 percent in January 2016.

Implementation of Executive Order
"It's the implementation of BAHA," American Immigration Lawyers Association President Elect Anastasia Tonello told Bloomberg Law Dec. 20, referencing President Donald Trump's Buy American and Hire American executive order. The order directs U.S. immigration agencies to ensure that H-1B visas only go to the most qualified and highly paid foreign nationals.
There is now a "climate" of "protecting the American workforce," said Tonello, who practices with Laura Devine Attorneys in New York.
"Time is money," and this is "a longer process and so much more effort," attorney Sandra Feist of Grell Feist in Minneapolis told Bloomberg Law Dec. 20. And that's causing some employers to drop out.
"I have one corporate client that I worked with on an H-1B that was approved" that said it's not going to bother sponsoring workers for H-1Bs any more, Feist said.
The eventual result is that immigrants "are going to go elsewhere, and I'm not sure who's going to pick up the slack," she said.

USCIS: No Policy Shift
USCIS Director L. Francis Cissna has maintained that there hasn't been a policy shift at the agency and that RFE and approval rates have largely stayed the same. In a statement provided to Bloomberg Law Dec. 19, he acknowledged the recent increase in RFEs, saying they reflect "our commitment to protecting the integrity of the immigration system."
Numerous immigration attorneys have said they're receiving RFEs not only at higher rates but that they're receiving them on petitions for jobs that used to sail through the agency.
The percentage of completed H-1B cases that had previously received an RFE is increasing, a USCIS spokesman told Bloomberg Law Dec. 20. But the agency can't really address whether that's because adjudicators are seeing more of a problem in H-1B petitions, or the quality of those petitions is going down, he said.
The ratio of RFEs to received H-1B petitions also spiked in July, jumping up to 82.9 percent from 41.6 percent in June. But that doesn't really tell the full picture, because it just compares total RFEs to total receipts, the USCIS spokesman said. Those numbers don't tell you how many petitions actually received RFEs, he said.
It's true that the approval percentage is going down, but the first two months of fiscal year 2018-October and November-aren't necessarily an indicator of how the rest of the year will go, the spokesman said.

Not Just ‘Rubber Stamping'
"Someone's actually doing some work here rather than just rubber stamping," New Jersey attorney John Miano told Bloomberg Law Dec. 20. A 2008 USCIS audit of H-1B cases revealed a 13.4 percent fraud rate, so you should expect "at least that level of rejection," said Miano, a fellow with the Center for Immigration Studies. CIS supports lower immigration levels.
Even as recently as October of this year, the Homeland Security Department Office of Inspector General found that the USCIS could do a better job at fraud detection in the H-1B program, Miano said.
The increased RFE and denial rates show that "they seem to be just following what they were told they should be doing," he said.

Not All Fraudulent
But not every denial is necessarily a fraud case.
"The only denial I've had so far" this year out of all H-1B petitions subject to the annual cap "was factually off base," Feist said.
The H-1B petition was for an employee of a consulting company who wouldn't be doing consulting work at third-party sites, Feist said. Rather, the employee would be working at the company's headquarters on managing client relations and garnering new business, she said.
Yet the H-1B petition was denied because it didn't provide information on the client site where the employee would be working-even though the employee wasn't going to be working at a client site, Feist said. The USCIS also said the nature of the job suggested the employee would be working at a client site even though the petition said the work site would be at the company's headquarters, she said.

Adding Uncertainty
The increased RFEs and denial rates are adding uncertainty to a process that's already uncertain, Tonello said.
Because more H-1B petitions are submitted than there are slots available each year, the USCIS holds a lottery to determine which petitions are selected for processing. Now employers have to grapple with a higher chance of receving an RFE as well as a higher chance of receiving a denial, even if they're selected in the lottery, she said.
But H-1Bs really are the only visa option for a lot of small businesses in the U.S., Tonello said. The administration should focus on fraud and bad actors rather than putting in place measures that make it harder for businesses that play by the rules to get the visas, she said.

By Laura D. Francis

Reproduced with permission from Daily Labor Report, 200 DLR 15 (October 18, 2017). Copyright 2017 by The Bureau of National Affairs, Inc. (800-372-1033)