• H-1B Processing Update: Employers and Foreign Nationals Face Tougher Scrutiny, Adjudication Delays
  • October 2, 2017
  • The Trump Administration’s Buy American, Hire American policies have translated into greater scrutiny of H-1B petitions, a higher rate of requests for evidence (RFEs) and longer processing times for employers in nearly all industries. Lengthy adjudications and the continued suspension of H-1B premium processing mean that some sponsored workers may not be able to begin H-1B cap employment as planned on October 1 and that H-1B extensions may be delayed. Increased scrutiny also means that employers may see a higher rate of H-1B denials than in past years.

    Closer Scrutiny of H-1B Wages

    The Buy American, Hire American executive order directs the Departments of Homeland Security, State, and Labor to focus on increasing H-1B wage minimums and altering other aspects of the H-1B program in an effort to promote the hiring of U.S. workers over foreign workers. Recent USCIS guidance instructs adjudicators to consider wages when determining whether an offered position qualifies as an H-1B specialty occupation.

    As a result, employers have seen a surge in RFEs in cases involving entry-level professional positions and wages that fall into Level I of the Department of Labor’s four-level occupational wage data. H-1B cap cases and petitions for extension of stay have been affected. RFEs are being issued even on cases where the offered salary listed on the H-1B petition far exceeds DOL Level I, but where the prevailing wage is nevertheless based upon DOL Level I by virtue of the calculation mandated by DOL’s instructions on determining prevailing wages.

    RFEs typically claim that the job duties appear too complex for a wage at DOL Level I, that the Level I wage suggests the position does not qualify as a H-1B specialty occupation or both. These RFEs have required employers to provide detailed information – including expert opinions, industry data and other evidence – to demonstrate that Level I is the appropriate wage for the position, and to explain in great detail how the job qualifies as a specialty occupation.

    It is not yet clear how the Administration’s policies will affect case outcomes, but an increase in H-1B denials is likely.

    Increased Scrutiny of F-1 Students Changing Status to H-1B

    A significant portion of H-1B cap petition beneficiaries are F-1 students seeking a change of status. This year, USCIS has issued more requests for evidence that beneficiaries have maintained their F-1 status, including original transcripts, documentation of compliance with F-1 reporting obligations and proof of compliance with practical training regulations. Though these RFEs are not new, they are being issued with greater frequency and specificity.

    Though a violation of F-1 rules does not typically result in a denial of an H-1B petition, it can lead to a finding that the beneficiary is out of status and a denial of the change of status portion of the petition. This would require the F-1 student to depart the United States immediately – without a grace period – even if the student is in a period of optional practical training (OPT) and the petition for future H-1B employment is approved. To assume H-1B status, the foreign national would be required to apply for an H-1B visa at a U.S. consulate and reenter to take up employment.

    Impact on USCIS Processing Timelines and Cap-Gap Beneficiaries

    The high volume of RFEs and the suspension of premium processing for H-1B cases mean that USCIS may not complete case processing by October 1, the FY 2018 H-1B cap employment start date.

    Processing delays will have the greatest impact on F-1 students who are awaiting a change of status and whose OPT expires before October 1. F-1 students in the “cap gap” receive an extension of their OPT work authorization through October 1. If their H-1B cap petition is not approved by October 1, their employment authorization will cease. Though they may remain in the United States pursuant to their pending change of status case, they cannot resume work until their H-1B cap petition is approved. USCIS has thus far declined to extend cap-gap work authorization beyond October 1.

    As a reminder, foreign nationals with timely-filed H-1B extensions receive an automatic 240-day extension of work authorization. In past years, USCIS has worked to prioritize extension cases approaching the 240-day limit.

    Impact on Visa Applications

    Trump Administration H-1B policies are also expected to delay visa applications at U.S. consulates. In recent updates to its policy manual, the State Department has directed consular officers to consider the protection of U.S. workers’ wages and employment rates in the adjudication of H-1B visa applications (as well as E, L, O and P visa applications). This could lead to an increase in administrative processing and requests for additional information about the visa applicant’s salary, qualifications and prospective employment, delaying visa issuance and employment start dates.

    What This Means for Employers and Foreign Nationals

    Business immigration advocates have urged USCIS to consider the negative consequences of H-1B adjudication delays and denials on U.S. organizations, but the agency has thus far declined to offer relief. Employers and sponsored foreign workers must therefore prepare for the possibility of disruptions in employment if H-1B cap and extension petitions are not adjudicated in time.

    In urgent situations, it remains possible for employers to request expedited processing. However, expedites are granted at USCIS’s discretion only and are issued very rarely – for emergencies, humanitarian situations, in cases of severe financial loss to the employer or foreign national and a few other very limited circumstances. Contact your Fragomen professional to discuss the possibility of requesting an expedite for critical cases.