How The New USCIS Proposal Could Affect Your Immigration Process

For all those looking to work or live in the United States, it is mandatory to be aware of the new trends, rules, and consequences before submitting an immigration application. The rigid policies and guidelines introduced by the U.S. Citizenship and Immigration Services (USCIS) have made it even more difficult for foreign nationals to obtain legal status in the U.S.

As a full-service business immigration law firm, Pasricha & Patel  utilizes the latest technology to monitor developments in immigration law and regulations. As well, we always ensure we maintain a constant communication link with our clients.

What’s New: The Updated USCIS Policy

Trend 1: Greater scrutiny and attention being paid by the USCIS to employment-based petitions and applications.

After the signing of the ‘Buy American, Hire American’ (BAHA) executive order by the current president in April 2017, USCIS has increased scrutiny and review of all employment-based nonimmigrant worker visa petitions and applications.

For example, according to USCIS-published data, there is a significant increase in RFE issuances and denials of H-1B and L-1 petitions, and increase in RFE issuances for O-1 petitions:

A. H-1B petitions are filed by U.S. employers to fill positions that qualify as ‘specialty occupations’;

Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;

The degree requirement for the job is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree;

The employer normally requires a degree or its equivalent for the position;

The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

B. For the foreign-born H-1B applicant to qualify and fill a job opening in one of the ‘specialty occupations,’ he/she must be able to demonstrate certain criterion:

Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;

Hold a foreign degree that is the equivalent to a U.S. Bachelor’s or higher degree in the specialty occupation;

Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment;

Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

C. The H-1B visa has an annual numerical limit/cap of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.

Each April, USCIS starts to accept H-1B cap petitions filed by the U.S. petitioner/employer on behalf of the designated H-1B beneficiary;

In the last H-1B filing period (the Fiscal year 2018), USCIS received approximately 94,213 H-1B petitions filed in the ‘regular cap’;

It received approximately 95,885 H-1B petitions filed in the U.S. Master’s cap;

(Source: www.uscis.gov)

D. Based on the more recent available H-1B processing data published by the USCIS - which covers the fiscal year 2017 (FY 2017) and analyzed by the non-profit National Foundation for American Policy (NFAP) in July 2018, some key numbers stood out with regards to H-1B petitions:

(source: https://nfap.com/wp-content/uploads/2018/07/H-1B-Denial-and-RFE-Increase.NFAP-Policy-Brief.July-2018.pdf)

The proportion of H-1B petitions denied increased by 41% from the third to the fourth quarter of FY 2017.

This is a rise in denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter.

2. The number of RFEs issued in the 4th quarter FY 2017 (Requests for Evidence in which the USCIS issues requests to the H-1B petitioner/employer for more information and/or documentation about the petitioner, the beneficiary, or the nature of the job being offered to the beneficiary) almost totaled the sum of all RFEs issued in the first 3 quarters of FY 2017 (63,184 vs. 63,599).

3. RFEs for H-1Bs more than doubled between 3rd and 4th quarter of FY 2017; and RFEs in the 4th quarter of FY 2017 exceeded greatly than those RFEs that were issued in the 1st quarter FY 2017, which happens to be the last few months of the previous administration (17% vs. 69%).

4. USCIS is issuing RFEs to applicants from India more than two applicants from other countries:

i. In the 4th quarter of FY 2017, 72% of H-1B cases for India received RFE vs. 61% for H-1B petitions for all other countries.

ii. In general trend over the years, USCIS adjudicators already deny more applications and issue higher rate of RFEs for Indians in both the H-1B and L-1 applications.

5. A 42% increase in the proportion of H-1B petitions denied for Indian-born beneficiaries from the 3rd quarter to the 4th quarter of FY 2017; 40% increase in the proportion of H-1B petitions being denied for professionals from countries other than India from the 3rd quarter to the 4th quarter of FY 2017, which is an increase of denial rate of 14% in the 3rd quarter to 19.6% in the 4th quarter.

E. Even L-1B petitions (which involves the transfer of ‘specialized knowledge’ employees who work for the overseas parent/branch/subsidiaries/affiliates of the U.S. petitioner into the U.S. based company; specialized knowledge usually involves knowledge of the company’s product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company) faced increased denials - from 1st quarter to 4th quarter of FY 2017, the denial rate rose from 21.7% to 28.7%.

1. The USCIS denied about 48% (almost half) of Indian nationals whose employers wanted to transfer them to the US on L-1B petitions in the 4th quarter of FY 2017 (there was already a 36% denial rate in the first quarter of FY 2017 for Indian beneficiaries).

2. This trend continued into the 1st quarter of FY 2018, as 30.5% of all L-1B petitions, and the USCIS denied 29.2% of all L-1B petitions in the 2nd quarter of FY 2018.

F. Moreover, even the denial rates for L-1A multinational managers and executives who are transferees from the overseas company to the U.S.-based parent/branch/subsidiary/affiliate company have increased:

1. Between the 1st and 4th quarter of FY 2017, the denial rate of L-1A petitions rose from 12.8% to 21.4%.

2. For Indian nationals, the denial rate rose from 9.5% in the 1st quarter of FY 2017 to 13% in the 2nd quarter, and 17.4% in the 3rd quarter, and 16.4% in the 4th quarters.

G. Finally, O-1 petitions which are petitions for individuals who possess ‘extraordinary ability in the sciences, arts, education, business, or athletics’ for Indian nationals experienced the situation where almost 80% of O-1 applicants from India faced RFEs.

Because of the expenses and the time spent to prepare and file the H/L/O petitions are great, there is the understanding that petitioners will only be willing to submit petitions on behalf of candidates whom they believe are not only qualified but also face a good chance of being approved by the USCIS. So, there is already a process of ‘self-selection’ on the part of the U.S. petitioner/employer in deciding which foreign nationals to sponsor for H-1B/L-1/O-1 petitions.

Yet, with higher RFE issuances, and higher H and L denials, there can be no denying the inevitable conclusion that the current administration’s policy of ‘Buy American, Hire American’ is making it difficult for even the highly skilled foreign nationals to work in the U.S. This is contrary to the administration’s claim that it wants to shift towards a more ‘merit-based’ immigration system.

It is not unreasonable to conclude that this current administration is focused on limiting immigration altogether, especially when the USCIS has been introducing policies and guidelines that:

1. Make foreign students who are studying in the U.S. harder to stay and work in the U.S. after they complete their academic studies here (by placing restrictions on the postgraduate Optional Practical Training [OPT] work authorization program), even for those students who are enrolled in STEM (Science, Technology, Engineering, and Mathematics) academic programs;

2. USCIS will no longer defer to prior determinations, or approvals, or findings of fact when extending a current H-1B or L-1A or L-1B or O-1 status petition;

3. USCIS has revised the definition of H-1B specialty occupation by making it harder for various professional positions qualify as ‘specialty occupation’;

4. USCIS is also considering revoking the work authorization eligibility for the H-4 dependent spouse of qualified H-1B worker;

5. USCIS now also has the authority to deny petitions and applications without first giving the petitioner the opportunity to respond to an RFE.

6. USCIS also introduced a policy memo that can result in placing skilled professional workers into removal/deportation proceedings, if the USCIS denies their petitions.

Even the TN visa faces some level of uncertainty:

1. TN visas are used by Canadian and Mexican professionals to come work in the U.S. based on the designated TN professional occupation list (part of the North American Free Trade Agreement (NAFTA).

2. However, NAFTA has been rebranded by a newly-signed USMCA (US-Mexico-Canada) agreement in December 2018 by all three countries’ leaders.

3. This agreement still has to undergo legislative review and final vote by the U.S. Congress. So far, the NAFTA provisions relating to TN worker visa program appears to have remained untouched.

4. However, there is no telling what types of changes will be made to this particular employment-based worker program during the Congressional review and final vote. Also, even if there is retention of the ‘TN visa program,’ but with changes to it, we still would not know what the new format of the visa program would take. It is a situation that will have to be monitored closely and for the foreseeable future, including whether this special worker visa program between the U.S., Canada, and Mexico will even exist in the end.

All these different measures and policies, and new developments will make the U.S. petitioner and potential employment-related applicants, as well as future foreign students who wish to study in the U.S., will think twice before applying to work or study in the U.S. This is a shame because, in an ever increasingly competitive global workplace, the U.S. cannot afford to lose highly skilled workers to other countries who are also eagerly trying to attract the best and the brightest to their countries. America’s loss is another country’s gain.

What to do?

The most immediate steps to take are to monitor USCIS policy news to watch for updates. And in the case of H/L/O visa programs, also be prepared with best-evidence and documentation before submitting any petitions or applications to the USCIS in order to minimize the chances of being issued RFEs, and even if RFEs are issued, if the petitioner and the beneficiary are well-prepared by legal counsel to respond to the RFEs that come its way, then the petitioner and the beneficiary will have given themselves the best possible chance for eventual approval of their petitions.

Trend 2: Expect an increase in site visits, and raids and audits by the USCIS, and ICE, and DOL, and perhaps even the Department of State.

A. USCIS Fraud Detection and National Security (‘FDNS’) and the U.S. Immigration and Customs Enforcement (ICE) have increased site visits to all businesses, particularly where fraud is suspected for undocumented workers and employers who hire them.

Administrative Site Visit and Verification Program (ASVVP) started in 2009.

Site visits are conducted by the Fraud Detection and National Security Directorate (FDNS) of the USCIS.

(Source: USCIS programs, Oct. 30, 2014)

Newsweek reported in May 2018 that as of May 21, 2018, USCIS received more than 5,000 tips on H-1B visa fraud and abuse through FDNS’s email helpline.

(Source: Newsweek, May 30, 2018)

This is the result of the USCIS’s announcement in April 2017 about its various initiatives to find and ‘detect H-1B visa fraud and abuse.’

There is no exact information known about the type of complaints filed, nor how many of these complaints resulted in further action taken by FDNS on the subject person/entity.

USCIS refers fraud and abuse cases to U.S. Immigration and Customs Enforcement (ICE) for further investigation, including possible criminal inquiries.

In its April 2017 press release, the USCIS also announced that it was targeting its site visits towards:

Cases where USCIS cannot validate the employer’s necessary business information through commercially available data;

H-1B dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers);

During these site visits of H-1B dependent employers, site inspectors will also verify whether the H-1B workers pay is meeting the statutorily required pay;

Site inspector will also inquire whether the employer is making a good faith effort to recruit U.S. workers and not displacing U.S. workers (applicable for those who are NOT exempted from H-1B dependent employer’s attestations requirements)

Employers petitioning for H-1B workers who work off-site at another company or the organization’s locations.

(Source: USCIS News Release, April 3, 2017, and also subsequent News Release, July 23, 2018)

B. ICE has increased I-9 inspections and audits to verify employment authorizations and to determine substantive paperwork violations.

Unlike USCIS’s FDNS, ICE, which is a separate division of the Department of Homeland Security, conducts Form I-9 inspections to confirm that the employer keeps current records of all its hires and that the employees are authorized to work in the U.S.

I-9 inspections are initiated by the ICE issuing a Notice of Inspection (NOI) and usually initiated after specific tips or reports of abuse and/or violations.

The employer is given three (3) days advance notice to prepare for the inspection. The exception is if ICE shows up at business premises with a search warrant.

Any I-9 violations could mean civil fines or may even result in criminal prosecutions (if there were intentional or knowingly committing violations).

Examples:

ICE targeting 7-Eleven stores during nationwide immigration raids in early 2018;

Then in July 2018, ICE HSI (Homeland Security Investigations) served 2,738 NOIs and made 32 arrests.

(Source: NPR news report, January 11, 2018; and ICE news release, July 24, 2018)

Sometimes, the FDNS would also coordinate with the U.S. Department of State’s Fraud Prevention Unit (FPU) to avoid duplicate compliance reviews of the same process by two separate government agencies.

(Source: USCIS FDNS Supplemental Questions and Answers: Administrative Site Visit and Verification Program (ASVVP), June 7, 2011, AILA Info-net Doc. No. 11080569)

U.S. Department of State’s Fraud Prevention Program (FPP) and its various Fraud Prevention Units (FPUs) stationed at consular posts around the world are on the lookout for visa applicants’ identity fraud, claimed relations fraud, and misrepresentation of qualifications, in order to receive a visa that the applicant is not qualified for.

(Source: 9 FAM 601.10 Visa Fraud Prevention)

C. FDNS Site Visits are conducted for R-1 religious worker petitions, and H-1B petitions, and also L-1 petitions.

The basis for a site visit: Every employer who signs the form I-129 agrees to ‘any supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.’

This is NOT a fraud investigation; these are randomly chosen to verify the information contained in particular visa petitions and making sure the employer is complying with the terms of the filed I-129 petition.

Site visits are voluntary (meaning: the employer can refuse to accommodate the FDNS site visitor), but best to comply with a request.

Any refusal to proceed will result in the site inspector completing his or her Compliance Review Report based on only the information that he/she may have collected before the termination of the site visit by the employer, and the site inspector will need to say that in the report. That could have a negative impact on the underlying H-1B petition that is the subject of the site visit.

For example, if the site inspector cannot locate the H-1B beneficiary, or he/she cannot verify the information contained in the H-1B petition, the H-1B petitioner could receive an H-1B denial on the pending H-1B petition, or a notice of intent to revoke (NOIR) an approved H-1B petition.

If the site inspector finds negative information during the site visit, this can lead to an expanded investigation (or perhaps civil or criminal penalties, depending on the severity of the infractions).

Most site visits are unannounced, and there is rarely any re-scheduling of site visit (unless there is extraordinary circumstance).

Legal representatives are technically allowed to be present at the site visit, but in the practical sense, it is not possible for the attorney to be present at that specific time (on rare occasion, if the site inspector allows it, the legal counsel could be accessible via phone).

However, usually, the site inspector would proceed with the inspection (without notifying the attorney) because the petitioner signed the form I-129 allowing wide access to the FDNS and USCIS to start.

Site visits do not usually take long – maybe less than an hour (the site visitor has multiple sites to visit on a given day)

What to do?

A. Prepare for site visits and audits by conducting your own internal company audit. It is beneficial to conduct an internal review of your H-1B files and DOL public access files, as well as your I-9 files. It would not hurt first to do a sample audit and review; we encourage you to seek legal counsel for this to find out whether a more comprehensive audit is needed for your company.

B. If you or your legal counsel discover issues in record keeping (public access file, or I-9 issues), fix them right away. Failure to maintain proper public access files and/or I-9 files can result in civil fines, criminal penalties, and also debarment from filing nonimmigrant and immigrant petitions. Being proactive in trying to fix any issues will help reduce fines and penalties, and it can even help to show that the company was trying to remediate in good faith, should USCIS or ICE, or DOL show up for a site inspection and/or audit.

C. Also, make sure to set up proper policies and procedures for hiring practices, including making sure I-9 form completion and document retention practices, and any possible social security number mismatches (if you are an E-verify employer) are in place, so that if there are any issues that come up later, you/the employer and management will know what to do in order to fix the problem(s). And make sure these policies are communicated to the proper managers and executives within the company. That way, if the USCIS, or ICE, or DOL come for the visit, the proper manager and/or executive at the company will be in the best position to address any doubts or questions posed by the government official regarding those specific aspects. This also means the employer should consider training the designated manager(s) and executives about USCIS, and DOL, and I-9 process and completion procedures. It’s better to be trained for these events now, rather than face possible exposure to civil penalties, criminal penalties, and possible debarment consequences down the road that can negatively impact the whole operation of the company.

Always file amended I-129 petitions (H/L0 whenever there are):

Material changes to job duties, or changes to work locations outside of the initial worksite’s Metropolitan Statistical Area (MSA);

Remember should the petitioner or the beneficiary face questions that he/she does not know the answer to, or is not sure about the answer, it is okay to ask for more time to consider and then respond to the site inspector (that’s where the site inspector’s card/contact information comes in useful). There is no need to guess or make up answers. It is okay to say: ‘I don’t know for sure, but I can find out for you and get back to you.’

Conclusion

The current administration’s focus on immigration issues is well documented, and that is made clear by the government’s emphasis on enforcement actions taken against employers both large and small. That means more significant challenges for employers and its foreign national employees alike. However, if you take the necessary steps to prepare yourselves as best as you can before such a visit comes from the government, then you will put yourselves in the best possible situation to face such challenges.

The most effective way of overcoming immigration issues is by hiring an immigration law firm. At Pasricha & Patel, our lawyers have been providing corporate clients and individuals with expert immigration legal services for over twenty-three years. We help with work and family visas, citizenship, green cards, and other immigration services across New Jersey, Connecticut, New York, North Virginia, Texas, and California.

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