April 2, 2018 marks the first day of a five-day window to file cap-subject H-1Bs with U.S. Citizenship and Immigration Service (USCIS) for the upcoming fiscal year (FY 2019), which begins on October 1, 2018.  With only a couple of weeks remaining before April 2, we are now fully immersed in the “March Madness” of cap season. As our favorite teams are fine-tuning the skills and teamwork they have developed over the season, watching tapes, and preparing physically and mentally for tip off on the basketball court this week, companies and immigration practitioners, too, are preparing for the H-1B challenge ahead. With the battle wounds and bruises from last year, we have some idea of what obstacles we will face on the road ahead. 

Background

With the changing of the guard in Washington, D.C. last year, no one was quite sure what to expect from the FY 2018 cap season. The new administration’s focus at the time seemed to be on fighting its travel ban in the courts, increasing immigration enforcement efforts, and tightening up border security. It did appear that one constant in the immigration area was change.

Then, on March 31, 2017, which is the day that employers were packing their cap-subject H-1B petitions into FedEx boxes to be shipped to USCIS for delivery on April 1, the first indication that the FY2018 cap season would be unlike any other surfaced. It arrived in the form of a memorandum rescinding prior policy guidance relating to H-1B eligibility for computer-related positions. The memorandum essentially said that computer programmers, generally as an occupation, would not qualify for H-1B classification. While the computer programming occupation has been the subject of scrutiny for years, the last minute guidance presented an unexpected challenge for many employers.

More important than the ultimate conclusion that the computer programmer occupation would generally not qualify for H-1B classification was the agency’s reasoning. As rationale for disqualifying the occupation generally from H-1B eligibility, the computer programmer memo states that USCIS affords deference to the Department of Labor’s Occupational Outlook Handbook (OOH), and that OOH indicates that while most computer programmer positions require a bachelor’s-level of education, some computer programmer positions require only an associate’s degree. Further, the OOH’s entry for computer programmers does not indicate a specific field of study that would be required for entry into the occupation. Accordingly, USCIS concludes, this occupation would not generally qualify as one that requires the attainment of a bachelor’s degree or higher in a specific specialty.

Just over two weeks later, on April 18, 2017, President Trump signed the “Buy American, Hire American” Executive Order, which directed the Department of Homeland Security (DHS), in coordination with other agencies, to advance policies to ensure H-1B visas are awarded to the most highly-skilled or highest-paid individuals (a requirement which nowhere appears in the H-1B law or regulations). As a result, USCIS put into action a plan to work on a combination of rulemaking, policy memoranda, and operational changes to implement the President’s Executive Order.

The implementation of the computer programmer memo (or more specifically, the rationale behind it) and the “Buy American, Hire American” Executive Order led to a dramatic increase in requests for evidence during the H-1B cap adjudication cycle. According to Reuters, the number of requests for evidence (or “RFEs”) issued from January 1, 2017 to August 21, 2017 rose 45 percent. As a natural consequence of the increase in RFEs, there was certainly also an uptick of denials. However, if there is a silver lining, we are not running blindly into the H-1B cap season for FY 2019 as we were last year, as we are now have some idea of what to expect during this adjudication cycle.

Lessons Learned and What to Expect for 2019 

Employers should brace themselves for another tough H-1B lottery season. Typical requests from last year, which should be similar to what we are to expect this year, are as follows.

  • Level 1 or Level 2 Wages –
    Accompanying every H-1B petition is a certified labor condition application (LCA). The LCA designates one of four minimum sponsorship wage levels for the job offered, which is based on a formula from DOL that takes into consideration the required education, experience, and skillset required for the job.

    Presumably based on the directives of the “Buy American, Hire American” Executive Order, RFEs were issued for petitions with accompanying LCAs designating the lower Level 1 or Level 2 wages at a much higher rate than those with an assigned Level 3 or Level 4 wage. USCIS made a few different types of assertions in these RFEs:

  •  The duties appeared to be more sophisticated than entry-level, and accordingly, a higher wage level should have been assigned.
  • Because of the Level 1 wage level, the position is not sophisticated enough to qualify as a specialty occupation.

RFEs were also issued that made both of these assertions.

While it is not possible to avoid this type of RFE entirely (expect that entry-level positions will again this year be viewed with laser focus), it is important to present a job description for the position that accurately describes the nature of the job in detail. Careful review of the job description for entry-level positions is necessary to be sure that the duties accurately reflect a level of sophistication but also make it clear that the position is not fully autonomous.

  • Occupations with no Specific Single Degree Field of Study Requirement –

This RFE trend focuses on the language of the regulations which require the attainment of a bachelor’s degree or higher in a specific specialty. Perhaps the computer programmer memo was a harbinger for this angle of scrutiny, as one the reasons USCIS stated in that memo to support the conclusion that a computer programmer would not qualify as a specialty occupation was that the OOH did not clearly define the specific specialties that would be acceptable for the position.

This RFE is not new, but it certainly has been issued with greater frequency over the past year. For occupations where there is no OOH entry, or whether the OOH entry is vague as to the specific educational requirement for entry into the profession, it is important to be able to demonstrate how the beneficiary’s degree field of study prepared him or her to perform the duties listed in the petition. It may also be useful for a company to analyze its past and current hiring practices for the position. Positions requiring liberal arts or general business degrees may be more susceptible to scrutiny.

  • Third-Party Work Site Placement –

While requiring employers to document work to be performed at a third-party work site extensively is nothing new, USCIS has recently issued a memo outlining a new policy that purports to allow adjudicators to analyze relationships between petitioners and subcontractors of end-clients even more closely than in the past. The policy will still require employers to submit contracts, specific itineraries, and detailed information from end-clients covering the entire period of requested employment. Whether the petitioner has the right to control a worker placed at a third-party work site will also continue to be closely reviewed. And, USCIS may still limit the period of time requested in the petition to cover only the period documented by contracts or other corroborating documentation. However, this “new” policy clearly signals to employers that these issues will be a primary focus of close scrutiny for this fiscal year’s H-1B cap lottery petition reviews.

It is important to make sure that the petition includes supporting documents to establish the availability of work covering the entire period requested. Supporting documents may include statements of work, a work order, or a letter signed by an authorized representative of the end-client. Technical documents, marketing analyses, and funding documents may also be useful.

A Note on Premium Processing

Last year, on March 3, 2017 USCIS announced a temporary suspension of its premium processing service for all H-1B petitions. This suspension applied to H-1B petitions subject to the lottery, as well as extension and other cap-exempt petitions. Premium processing service resumed several months later. On January 25, 2018, USCIS Service Center Operations (SCOPs) confirmed to the American Immigration Lawyers Association (AILA) that USCIS “does not anticipate that premium processing will be suspended for non-cap H-1B petitions, though there may be a short suspension of premium processing for H-1B cap-subject petitions.”

About the Author:
Heather Frayre is Of Counsel based out of our El Paso, Texas office. Her immigration practice primarily involves matters tied to the recruitment, hire, transfer, and retention of international workers. She counsels corporate and individual clients on a full range of immigration matters including non-immigrant visas, permanent residency, and citizenship as well as issues tied to worksite compliance. She can be reached at hfrayre@dickinson-wright.com or (915)541-9370 and you can visit her bio here.