U.S. Citizenship and Immigration Services (USCIS) true to its mission statement “administering the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting American’s, securing the homeland, and honoring our values” has in its recent press release claimed to fulfill President Trumps campaign promises of stopping illegal immigration and reducing the H1B visa abuse by the employers. Pursuant to its new mission statement, USCIS has also begun critically and vigorously examining the visa applications being filed, to deter people from committing immigration fraud. But in its effort to find immigration fraud, the processing of the cases has slowed down and unfortunately now even bonafide cases are subject to rigorous examination, which has in turn, negatively impacted employers. Some of the recent changes implemented by USCIS are below:
- Enhanced vetting and screening of the visa applicants.
- Delays and Denials at the time of the Visa Stamping: As per the recent reports, people are being denied H1B visas at the time of the visa stamping. This topic has been discussed by us in one of our earlier articles published on October 15, 2019 (New Travel Advisory: http://www.ahluwalialaw.com/new-travel-advisory/).
- Increase in the number of RFE requests: As per the recently released data, 60% of cases received a Request for Evidence (RFE) in the first quarter of the current fiscal year; of those who received an RFE, 50% of cases were denied on arbitrary grounds without any legal justification.
- Changes in the H1B RFE Adjudication Standard: The revised RFE standard has allowed the USCIS officers to make arbitrary requests to employers asking them to provide every contractual document with a third party, project documentation, and some other stuff.
- Increasing the scope of the March 31, 2017 Memo: Based on this memo, the petitioner has an increased burden of proving the fact that the requested occupation is a specialty occupation. Further, the OOH explanation won’t be sufficient in itself in proving the specialty nature of the occupation; one will be required to provide additional evidence with the petition for establishing the specialty nature of the requested occupation.
- Increase in the H1B petition denial rates: As per the newly released H1B data analysis by the National Policy for American Policy, there has been a sharp increase in the number of denials, the overall denial rate has risen up to 33% in the first two quarters of 2019, which is a 27% increase from 2015. Further, at the time of H1B extension, the denial rate has reached 14% in comparison to 3% in 2015. As per recent reports Cognizant a US based IT company saw over 60% denial rate for the new H1B petitions, followed by Capgemini, Accenture, Wipro and Infosys.
- Approving H-1B petitions for shorter durations: USCIS has started approving the H1-B application for a shorter duration than requested. The approved duration is varying from 1 day to 3 years.
- October 23, 2017, Policy Memorandum: Based on this memorandum the USCIS officers can now adjudicate the extension applications for the existing H-1B visa holders, without deferring to the previous determinations. This policy memorandum rescinded the superseded the April 23, 2004, memorandum, which asked the officers to refer to the previous determinations at the time of adjudication of petitions for extension of Nonimmigrant status.
- Third Country Transit Asylum Policy: According to this rule, a person entering the United States through a third country first needs to seek asylum in that country, and only after denial of the request one can request Asylum in the United States.
We have written an extensive article on this topic on October 03, 2019 (Supreme Court Ruling On Asylum Seekers Tilts The Scale in Favor of the Government: http://www.ahluwalialaw.com/supreme-court-ruling-on-asylum-seekers-tilts-the-scale-in-favor-of-the-government/).
- Public Charge Rule: According to this rule, a person who is likely to become a burden on the United States, wont’ be granted a Green Card. We have written several articles on this topic –
-Public Charge Rule Update October 14, 2019 (http://www.ahluwalialaw.com/public-charge-rule-update-october-14-2019/).
-Public Charge Rule Update October 09, 2019 (http://www.ahluwalialaw.com/public-charge-rule-update/)
-USCIS Publishes Final Rule on Inadmissibility on Public Charge Ground (http://www.ahluwalialaw.com/uscis-publishes-final-rule-on-inadmissibility-on-public-charge-ground/)
-Deportable Offenses (http://www.ahluwalialaw.com/deportable-offenses/)
- EB-5 Reform: Under the said promulgated final rule, the investment amount was increased, and number of other changes were incorporated.
The above-discussed changes have resulted in a situation wherein the employment based petitions are the most affected and subsequently an employer is forced to hire from a small talent pool of workers in the desired occupation, even forcing companies to move their businesses to foreign locations having favorable immigration systems. These changes have significantly affected legal immigration, and such changes will likely have an impact on the very foundation on which the US economy stands.
This Article briefly discusses the recent changes made by the USCIS pertaining to employment and non-employment-based immigration. This Article, under no circumstances, acts as a piece of legal advice; therefore, for any further case-specific question, please contact your appointed Attorney or the Ahluwalia Law Offices, P.C., for case-specific legal advice.