The Trump Administration’s H-1B Denial Tactics

To date, the Trump administration has taken no positive action toward the H-1B visa program. USCIS continues to view highly skilled foreign-born workers as threats instead of assets to the U.S. workforce.

Operational changes made under the Trump administration’s “Buy American, Hire American” (BAHA) Executive Order direct immigration agencies to propose new rules and issue new guidelines. USCIS adjudicators are provided with instructional documents for denying benefits to foreign nationals and, by extension, to American companies. The BAHA has become a means for enacting immigration policies without legislative oversight or public comment.

The H-1B petition denial rate was 6% in 2015 and has now grown to 32%. The number of Requests for Evidence (RFEs) for H-1B visa petitions more than doubled – 60% of H-1B applications now receive RFEs. Among other reasons, USCIS denies petitions on the grounds that the job does not meet the criteria of a specialty occupation or that there is no qualifying employer-employee relationship. 

When policy memorandum PM 602-0163 went into effect, USCIS officers were afforded the ability to deny a visa or green card application, petition or request (extensions) without issuing an RFE. Adjudicators have been given almost full discretion to make complex judgments without clear standards or proper oversight to safeguard against unequal treatment. 

In another policy memorandum (PM 602-0151), USCIS -emphasizes that adjudicators should not defer to prior approvals, even when extensions involve the same parties and underlying facts as the initial petition.

The policy memorandum PM-602-0142 put into question the qualification of ‘computer programmer’ as a specialty occupation. Entry-level positions that require a university degree but no experience are typically classified under level 1 wage. Based on the memo, adjudicators are directed to investigate whether the wage classifications are appropriate and to issue an RFE to justify the wage level. 

USCIS also instructs adjudicators to issue RFEs if the Department of Labor’s Occupational Outlook Handbook (OOH) indicates that for individuals to hold such a position is sufficient to have an associate degree. In this case, the position may not qualify as a specialty occupation even when a bachelor’s degree is the specified requirement.

In addition to the high denial rate, H-1B visas can take up to 10 months to process. When changing jobs, the H-1B visa holder runs the risk of going out of status while waiting on a decision from USCIS. The fear of denial and losing status has caused many H-1B visa holders to become stagnant in their career.

Collectively, these changes are devastating American employers who use legal processes to file visa petitions on behalf of the foreign nationals to extend their employment. These new rules have increased denials, created more work for petitioners and are adding to crisis-level processing delays.