The H-1B is a merit-based visa that has been at the forefront of the immigration battle. Essentially, the H-1B is the white-collar visa, meaning it is for specialty occupations that require a specific university degree.
The restrictions placed on specialty occupation visas is somewhat ironic. The United States is a leader in a number of industries, including the tech industry, but because we are so on fire right now and doing so many great things, we have to import great talent from around the world.
For a company to petition for an H-1B visa on behalf of the employee, the job must qualify as a specialty occupation. A database called the Occupational Outlook Handbook (OOH) is used to figure out whether a position qualifies.
The OOH lists professional occupations and gives the educational background required.
Meeting the OOH educational requirements has become a big issue on the front lines today.
The H-1B was an easier visa to get in 2016, about 88% of selected petitions were approved. In 2017, however, only 59% of H-1B visa petitions were approved. We examined denied cases that came to us from other lawyers and companies and found five main tactics USCIS is using to deny H-1B visas.
We addressed each denial tactic and got a 95% H-1B approval rating in 2020-during the most challenging immigration climate seen for years. In the 2021 season we scored a perfect 100% H-1B approval rate!
In general, however, applicants around the country experience meager approval rates.
One of the reasons H-1B visa denials hit an all-time high was because, on March 31, 2017, USCIS issued a memo that put into question the qualification of ‘computer programmer’ as a specialty occupation. USCIS contends that a specialty occupation requires a theoretical and practical application of a body of specialized knowledge with at least a bachelor’s degree or its equivalent.
Not all computer programmers have degrees, and USCIS used this as the basis for denying H- 1B visas. There are only 65,000 non-cap exempt H-1B visas available each year while there are companies with thousands of open positions that remain unfilled.
Since companies are unable to fill positions, they have to choose between either unqualified applicants or offshoring the job, two options that are equally bad for our economy.
When companies fill a position with an H-1B worker, there are other jobs, like managers or supervisors, that are also filled with American-born employees. This means that when one job is offshored because of an inadequate talent pool, then all the accompanying jobs are also offshored. The irony is that the Americans lose their six-figure jobs, managing a team of H-1B workers.
Making these high-skilled visas tougher to obtain for American companies is accomplishing the opposite of what the Trump administration intends. It propels companies to look elsewhere for people to fill highly technical positions, taking Americans’ jobs along with them.