EAH Immigration Blog

It’s Not Just Your Case – USCIS Has Increased Bureaucracy for U.S. Companies Petitioning for Needed Foreign Personnel

Not only has USCIS increased the red tape and bureaucracy for U.S. companies sponsoring foreign workers, but USCIS Acting Director Ken Cuccinelli boasts about it! It’s the latest example of administration officials lauding efforts to make it more difficult for employers to obtain what economists often consider to be a company’s most valuable resource – talent. In an October press release, Mr. Cuccinelli and USCIS describe the increased bureaucracy facing businesses in positive terms and the fulfillment of a mission of “safeguarding our nation’s immigration system and making sure that only those who are eligible for a benefit receive it.” They add: “USCIS is vigorous in its efforts to detect and deter immigration fraud, using a variety of vetting and screening processes to confirm an applicant’s identity and eligibility. The agency also conducts site visits, interviews applicants, and requests evidence for benefits that offer individuals status in the United States.” Translation: USCIS has made it more difficult for employers to gain approval for high-skilled foreign nationals and others, both through denials and requests for burdensome additional documentation.

In addition to increased denial rates – 50% higher for several IT service companies and up to 24% overall in 2019 – expensive and time-consuming Requests for Evidence (RFEs) reached an unprecedented level of 60% in the first quarter of FY 2019. The percentage of completed H-1B cases with a RFE has doubled between FY 2016 and FY 2019.

Government documents received through a Freedom of Information Act Request reveal:

  • USCIS adjudicators were directed to restrict approvals of H-1B petitions without the legal or regulatory authority to justify those decisions.
  • USCIS encouraged adjudicators to demand more information from employers, leading to such requests being made in 40% to 60% of H-1B cases.
  • USCIS changed the standard for what qualifies as a “specialty occupation” for an H-1B visa holder – without any change in the law or regulation. While initially used to deny H-1B status to computer programmers, the USCIS document states the new USCIS policy is “Applicable to Many Occupations.”
  • USCIS adjudicators have taken the unusual step of approving H-1B status for periods of very short duration.
  • USCIS now often requires – without a new law or regulation – a company to list every contract on which an H-1B visa holder will work during a three-year period to prove a “valid employer-employee relationship.” This was not done previously, and companies consider it unduly burdensome and out of touch with how businesses operate in a modern economy.

Many companies have resorted to lawsuits in federal court against USCIS to gain approvals for employees they have identified as valuable. Indeed, a record number of denials have been overturned on appeal, suggesting that the administration has been wrongfully rejecting qualified applicants for these coveted visas for high-skilled immigrants.

By increasing the many hurdles that employers must negotiate so that their foreign personnel can work in the United States – veiled under the cloak of trumped-up claims of increased workload and fraud referrals – USICS is making it harder for American companies to recruit and retain global talent and at the same time creating more work for itself and further growing the immigration bureaucracy. Moreover, there is a great human toll. Many visa holders who have lived in the United States for years are suddenly vulnerable because they may not qualify for a visa that they have received many times in the past.

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