U.S. looking for ways to reduce legal immigration
USCIS has already informally started to reinterpret the meaning of “specialty occupation” and apply its own definition when adjudicating H-1Bs.
- Misapply statutory and regulatory criteria used to prove specialty occupation eligibility.
- Exclusively and improperly rely on the Department of Labor’s Occupational Outlook Handbook (OOH) as the authoritative source for determining specialty occupation eligibility.
The proposed changes above become even more concerning when understood in the context of two policy updates released last year. Taken together they underscore the hyper-aggressive tack the DHS is taking with its adjudications through USCIS. One memo from last year clarifies that USCIS has the authority to deny filings without the need to send a Request for Further Evidence (RFE) or Notice of Intent to Deny (NOID). USCIS routinely (even more routinely lately with H-1B filings) sends an RFE if they feel additional information or documentation is needed. Now, under this new policy, USCIS may deny cases without providing the petitioner the opportunity to address any specific concerns about the filing.
Although USCIS asserts that they are not adjudicating H-1B cases differently, the spread of denials is palpable and belies that assertion. The fact that H-1B denial rates from FY 2015 to FY 2018 for “new” and “continuing” H-1Bs both quadrupled is a curious coincidence. It almost feels like there a certain rate of denials USCIS is targeting for H-1B petitions.
Another memo released last year confirms the conscription of USCIS into the enforcement world — a role usually reserved for Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP). This new policy memo authorizes USCIS to place an individual into removal proceedings if denying the non-immigrant petition will result in the foreign national having no status. For example, if an H-1B extension is filed for an individual, and the current H-1B status expires, and then the H-1B extension is denied without an RFE or NOID, USCIS may then place that individual into removal proceedings.
- Place a higher burden on U.S. employers when pursuing H-1B work authorization for a foreign national.
- Utilize that higher burden as a basis to deny H-1B petitions without requesting additional documentation.
- Place a foreign national into removal proceedings after the H-1B petition is denied
So why would USCIS deny applications without providing the employer the opportunity to respond to any questions about the filing? Why is USCIS pushing policies to discourage and frighten foreign nationals from working in the U.S.? The simple answer is the current administration’s agenda to reduce legal immigration.
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