September 12

5 Major Issues With H-1B Petitions That Can Trigger An RFE under Trump Administration

No one can say for certain what exactly is going to happen to the H-1B visa under the Trump administration. The fact of the matter is that there has been a 400% increase in RFEs (Requests for Evidence) and a yo-yoing of immigration policy changes that make the future uncertain.

Immigration reform is key to bringing jobs back to the U.S. and we remain optimistic that current immigration bills will pass and bring equality to clear the green card backlog.

5 main issues with H-1B visas that commonly trigger RFEs under Trump administration policy

1. Deference to previously approved visas

The first major hurdle for H-1B visa holders came in the form of Policy Memorandum 602-0151 issued on October 23, 2017. The new memorandum rescinded previous guidance, issued April 23, 2004, that gave deference to prior determinations of eligibility for H-1B visa holders filing for extensions that involved the same parties and underlying facts as the initial petition.

In other words, USCIS introduced a series of policies with more stringent standards to apply to previously approved petitions.

2. Level 1 wage

The second complication to H-1B petitions is wage levels. More H-1B RFEs now question wage level 1. On March 31, 2017, USCIS issued a policy memorandum that put into question the qualification of ‘computer programmer’ as a specialty occupation.

Specifically, entry-level positions that require a university degree, but no experience are typically classified under level 1 wage. USCIS has argued that the job duties paying level 1 wages are not complex enough to qualify as specialized but too complex to be considered entry-level because they involve the exercise of judgment and thus require oversight from a wage level 3 supervisor. Quite the predicament.

3. Specialty occupation

This brings us to the problem of singular degrees and specialization. USCIS contends that a specialty occupation requires a theoretical and practical application of a body of specialized knowledge and together with at least a bachelor’s degree or its equivalent.

The issue with the singular degree requirement is that often the coursework of a related degree provides the specialized knowledge needed to perform job duties. For instance, to fill a computer programmer position an applicant does not necessarily require a computer science degree to carry out tasks. Instead, a person with a mathematics or information technology degree can adequately fulfill such job responsibilities.

Under the new policy, if an employer determines that an applicant with a mathematics degree is most qualified for a computer programmer position, a technical evaluation must then be submitted with solid documentation demonstrating how the applicant’s coursework is directly connected to the job description, adding time and money to an already complex process.

4. Right to control

Another obstacle to the H-1B visa is the “right to control” in which USCIS scrutinizes the employer-employee relationship by weighing multiple factors such as who directly supervises the H-1B worker and whether supervision is performed on or off-site. If the work is performed off-site, then the method and frequency of supervision are analyzed.

USCIS further evaluates the employer-employee relationship in a myriad of ways, most common are: who pays the H-1B worker, sets their hours, directs their daily tasks, is in charge of hiring and firing, provides benefits and claims the worker for tax purposes.

The use of proprietary information and whether the end work product is directly linked to the H-1B employer’s (petitioner’s) business is closely examined.

To combat such intrusive investigation by USCIS, project management software that indicates oversight and services provided by all constituents should be used. Furthermore, submitting an itinerary or any and all documentation demonstrating the employer-employee relationship with specific job duties that is signed by all parties can help increase the chances of success.

5. STEM OPT and third-party sites

Lastly, USCIS made discreet changes to the Optional Practical Training extension program for STEM Students (STEM OPT) that rendered graduates ineligible to work at third-party sites. The changes were applied retroactively, without public notice, causing significant issues for companies abiding by the previous policy.

After much backlash from affected parties, the changes were made void. However, such a ploy may signal future policy intentions of USCIS.

About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas

Jon is an Amazon number one best-selling author of H-1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon was also pivotal in the Cherokee Freedmen Supreme Court case.

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