Editor’s Note: It’s an annual tradition for TLNT to count down the most popular posts of the previous 12 months. We’re reposting each of the top 30 articles through January 2nd. This is No. 8 of the 800 articles posted in 2018. You can find the complete list here.
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If your company is petitioning for H-1B visas and it seems like the approval process is taking longer than in years past, it’s not in your head. Anecdotal reports from immigration attorneys are backed up by the numbers: Through November of last year, USCIS issued 40% more Requests for Additional Evidence (RFEs) than it did in the previous year (despite only a 3% increase in visa applications).
In other words, USCIS is making it harder to get an H-1B visa approved by ramping up the bureaucracy.
Here’s a breakdown of what we’ve observed, what it likely means for your business, and how to maximize the odds of getting approval for foreign national workers you hope to bring onboard. Big picture, the increase in RFEs means that USCIS is looking at H-1B visa applications more closely than it has in the past. RFEs, generally, come in four types:
- VIBE: If the information in your H-1B application doesn’t match the information in the publicly available Validation Instrument for Business Enterprises database, USCIS may issue an RFE to resolve the discrepancy.
- Entry-level wages: This type of RFE seeks to verify that the position you’re hiring for actually merits entry-level wages based on what you included in your Labor Conditions Application (LCA).
- Specialty occupation: H-1B guidelines specify that the visa is only available to those performing “specialty occupations.” This type of RFE may ask for more details about the kind of work the visa holder will be doing, to ensure that it is truly a “specialty” occupation.
- Right to control: If the visa holder will be working for a client of your business or at a client location, this RFE seeks to clarify the employer-employee relationship and verify that you will indeed have control over the employee’s work.
One interpretation of the increase in RFEs is that this is part of the Trump Administration’s “Buy American, Hire American” policy: By making the process of bringing in foreign national workers more onerous, employers may be motivated to hire American citizens.
Anecdotally, we’re seeing increases particularly in entry-level wage RFEs (i.e., those marked “level one” on a one-to-four scale). The thrust of these RFEs seems to be this: “If an employee is indeed in a specialty occupation, how can they also merit just entry-level wages?”
Great question, right? Luckily, we now also have some case law to help us answer it.
Courts: “Entry level” and “Specialty” aren’t mutually exclusive
Employers worried that greater scrutiny will translate to fewer visa approvals should rest assured. Two recent rulings by the Administrative Appeals Office (AAO) show that those playing by the rules have less to fear.
The first ruling was on a case where USCIS denied an H-1B application on the grounds that a “specialty” occupation could not also merit “entry level” wages. The implication was that the employer was seeking less-expensive foreign labor instead of paying more to an American.
But the AAO overturned that decision, noting that a job can be both entry level and a specialty occupation. Employers who are unsure how to determine an appropriate wage for an H-1B position can take a look at the Bureau of Labor Statistics’ prevailing wage data.
The second case upheld USCIS’s denial of a visa on the grounds that the wage level the employer identified didn’t match the job description provided in the LCA. This suggests that, more now than ever, it is essential for employers to get the minutae of H-1B applications right.
H-1B applications will take more time and effort
While we’ve seen several proposed changes to H-1B guidelines since Trump took office, no changes have yet been passed into law. The main difference employers should prepare for is that increased scrutiny of applications means H-1B visa applications will now likely take more effort, time, and money to complete.
Following receipt of an RFE, your team has to verify information, compile paperwork, format it properly, and submit it. The process of getting a case approved after an RFE can take two to three months. That’s the bad news. The good news is that having all your ducks in a row from the beginning is the best way to maximize your odds of having an H-1B visa application approved.
