STRATEGIES FOR A SUCCESSFUL H-1B VISA …...visa, however, the H-1B visa has received a great deal of scrutiny in recent years, and there are a number of legislative initiatives in

2019 IMMIGRATION INSIGHTS SYMPOSIUM

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 3-1

STRATEGIES FOR A SUCCESSFUL

H-1B VISA PROGRAM

Brian D. Bumgardner – Ogletree Deakins (Raleigh)

Jennifer R. Shapiro – JPMorgan Chase & Co.



In recent years, particularly under the current administration, the Department of Homeland

Security (DHS) has been aggressive in its enforcement efforts against companies that are

perceived to be abusing the immigration process. As related to H-1B visa sponsorship, there has

been a significant increase in worksite visits by the Fraud Detection and National Security unit,

I-9 audits are on the rise, and the rate of denials for H-1B visa petitions has increased to

unprecedented levels. It is, therefore, very important for employers to become familiar with the

eligibility requirements that must be met by successful applicants, and ongoing compliance

obligations that attach once a foreign worker has become an employee. This white paper will

provide overview and discussion of these issues, covering topics that focus on the H-1B visa

category, recent complications and challenges with H-1B visa sponsorship, common compliance

issues, and new U.S. Citizenship and Immigration Services (USCIS) policies on immigration.

Overview of the H-1B Visa

One of the most commonly used visas by U.S. employers is the H-1B. The H-1B visa is available

to foreign national professionals coming temporarily to perform services in a specialty

occupation for a U.S. employer. A specialty occupation is one that normally requires a

bachelor’s degree in a field of specialized knowledge that directly relates to the occupation. A

qualifying foreign national professional must possess at least a baccalaureate degree (or the

equivalent) in a field qualifying him or her as a professional in the specialty occupation. The

H-1B visa serves as a nice solution for employers that require professional workers. Like the B-1

visa, however, the H-1B visa has received a great deal of scrutiny in recent years, and there are a

number of legislative initiatives in Congress which, if passed, will further restrict employers’

ability to use the H-1B visa.

Subject to Annual Quota

There is an annual limit on the number of H-1B visas set by Congress per fiscal year (October 1

to September 30). Currently, USCIS may approve no more than 65,000 H-1B visa petitions

(along with 20,000 H-1B visas for graduates with advanced degrees—master’s degree or

higher—from a U.S. institution). Of the 65,000 available visas, 6,800 are reserved for citizens of

Chile and Singapore pursuant to the terms of the U.S.-Chile and U.S.-Singapore Free Trade

Agreements. Like in past years, this year’s annual cap for H-1B visas was reached in the first

week of April.

USCIS will accept new H-1B petitions subject to the annual quota for the upcoming fiscal year

(FY) starting on April 1. Employers should identify current and future employees who may

require new H-1B visas to work in the United States as soon as possible. Individuals currently

holding F-1 student or J-1 trainee visas, individuals seeking to change to H-1B status from

another visa status (such as L-1, TN, O-1, or E-3), and individuals outside of the United States

commonly require a cap-subject H-1B petition to be filed on their behalf.

In recent years, USCIS received significantly more H-1B cap petitions than there are visas

available. When this happens, USCIS conducts a random, computer-generated lottery to select

the petitions that will ultimately be adjudicated. This year, USCIS announced that it would

reverse its normal process and would conduct the regular H-1B cap lottery first, followed by the

advanced degree lottery. USCIS stated that reversing the order of the lotteries would increase the



total number of petitions selected for beneficiaries with a master’s or higher degree from a U.S.

institution by approximately 16 percent, or 5,340 workers.

Once USCIS selects a sufficient number of petitions to fill the H-1B visa quota, it returns all

unselected petitions (with the government filing fees) to the employers that filed them. USCIS

will not accept any additional H-1B cap petitions until filing for the next fiscal year begins.

In January 2019, DHS published a final rule in the Federal Register that amended the regulations

governing petitions filed under the H-1B visa lottery. The final rule became effective April 1,

2019, though DHS suspended the electronic registration requirement for the FY 2020 H-1B cap

season. At the time this white paper was written, it is still undetermined if the new electronic

registration system will be implemented and officially used for the upcoming FY 2021 H-1B cap

season. Details about the final regulation are outlined below.

Cap-Exempt Petitions

Some H-1B petitions are exempt from the annual fiscal year limitation. The following H-1B

petitions are cap-exempt: (1) H-1B petitions that are filed to extend or amend H-1B employment

for foreign workers who are already in H-1B status, and (2) petitions filed on behalf of new

workers to be employed in H-1B status by institutions of higher education or related nonprofit

entities, nonprofit research organizations, or government research organizations. So if a

candidate is being interviewed for a position and he or she currently holds H-1B visa status (or

previously held visa status and did not use up his or her entire six-year stay), the candidate is not

subject to the cap, as long as the H-1B petition was filed by a cap-subject employer.

New Posting Requirements for H-1B Visa Petitions

In March 2019, the Wage and Hour Division of the U.S. Department of Labor (DOL) published

a bulletin that focused on H-1B notice and posting procedures. The bulletin addressed the

scenario where employers elect to provide electronic notice of their intent to hire H-1B

nonimmigrant workers to other U.S. workers (as opposed to posting physical notice of the H-1B

sponsorship at two locations at the actual worksite). The bulletin placed particular emphasis on

compliance issues when third-party worksites are involved.

Specifically, the bulletin provided that employers choosing to post H-1B notifications

electronically must comply with the following two requirements:

1. Electronic postings must be readily accessible by all affected workers. The affected

workers must have permission to access the information and know where to find it. A

posting on a company’s intranet may not comply with the notice requirement if all

affected workers do not have access to the intranet or know where the notice is posted.

2. DOL warns that notice may be deemed insufficient if the affected workers cannot

determine which electronic notice applies to their worksite. The electronic posting must

specify the terms and conditions of the employment, including the worksite location.



Employers that cannot comply with the electronic posting requirements may default to posting

hard copy notices. Employers that elect to post hard copy notices must post the notices in at least

two conspicuous locations at the worksite. The notices must be big enough and clear enough that

affected workers can easily see and read them. Employers that intend to place H-1B workers at a

third-party worksite must post the notices at the intended place of employment, regardless of

whether they own or operate the worksite.

H-1B Visa Challenges—Increased Rates of RFE and Denial

USCIS released new data confirming that both requests for evidence (RFEs) and denials are on

the rise for H-1B visa petitions. The rates for RFEs and denials, which had been gradually

increasing for several years, jumped sharply in FY 2018, which was when President Trump

released his “Buy American and Hire American” executive order.

The following is a summary of the key findings included in the data:

Fiscal Year H-1B Initial

Denial Rate H-1B RFE Rate

H-1B Total

Approved Rate

2015 4.3 percent 22.3 percent 95.7 percent



2018 15.5 percent 38 percent 84.5 percent

2019 (Q1-Q3) 16.1 percent 39.6 percent 83.9 percent

The initial denial rate in the first three quarters of FY 2019 is nearly quadruple the initial

denial rate in FY 2015.



The RFE rate has nearly doubled since FYs 2015, 2016, and 2017.

The approval rate, even after providing additional information via an RFE, has dropped

more than 20 percent since FY 2015.

As the RFE and denial rates for H-1B visa petitions continue to increase, it seems that the trend

is here to stay, at least for the immediate future. It is important to recognize that a majority of

cases are ultimately approved, so the odds of approval are still in an employer’s favor. However,

employers should anticipate more pushback and processing delays from USCIS. Employers can

help minimize the risk of triggering an RFE or denial by providing comprehensive descriptions

of the positions they seek to fill, together with documentation detailing the qualifications of the

employees they seek to sponsor.

Top Reasons for H-1B RFEs – USCIS Data

USCIS has released data for the top 10 reasons it issued RFEs for H-1B petitions in FY 2018.

The list lends some context to the recent USCIS reports showing that H-1B RFEs and denial

rates are continuing to climb under the Trump administration. This information is particularly

insightful as we head into H-1B filing season for FY 2021, as it shows which factors USCIS

considers key to establishing eligibility for an H-1B visa.

The following is a list of the top 10 reasons USCIS issued an RFE in response to an H-1B

petition in FY 2018. The reasons are listed from most common to least common. It is worth

noting that RFEs may be issued for multiple reasons.

1. Specialty Occupation

The most common reason for an employer to receive an RFE in response to an H-1B petition

was for failure to “establish that the position qualifies as a specialty occupation.”

In order to qualify for an H-1B visa, the petition must demonstrate to USCIS that the position

sought is a specialty occupation. The employer must provide evidence that the job is one that

requires not only the understanding and application of a highly specialized body of knowledge,

but also that it normally requires at least a bachelor’s degree, or its equivalent, in a particular

specialty. In recent years, USCIS has narrowed its interpretation of what qualifies as a specialty

occupation, often challenging positions with job duties that do not appear complex enough to

require a bachelor’s degree or the equivalent. USCIS recommends that employers provide a list

of duties, roles, responsibilities, and educational and experience requirements necessary to

perform the job. The job description should provide a link between the work to be performed and

the educational requirements for the position.

2. Employer-Employee Relationship

These are RFEs focusing on the “valid employer-employee relationship with the [H-1B]

beneficiary.”



An employer must be able to demonstrate that it will maintain the right to control the H-1B

beneficiary’s work for the duration of the requested period of employment. This is particularly

important when the H-1B beneficiary will be placed at a third-party worksite. An employer may

submit copies of the employment contract and/or offer letter detailing the terms and conditions of

the employment as proof that it will maintain a valid employer-employee relationship with the

H-1B beneficiary.

3. Availability of Work (Off-Site)

USCIS also issued RFEs asking for additional information to establish that the H-1B beneficiary,

when working at a third-party worksite, would be engaged in specific, non-speculative work

assignments in a specialty occupation for the requested period of employment.

USCIS requires employers to prove that the H-1B beneficiary will be engaged in actual and

ongoing work in a specialty occupation for the requested period of employment. The work

cannot be anticipated or based on prospective contracts. To prove a steady workflow exists, an

employer may provide copies of signed contracts, detailed work assignments, and work orders

signed by end-user clients, among other things.

4. Beneficiary Qualifications

USCIS issued RFEs asking for additional information to “establish that the [H-1B] beneficiary

was qualified to perform services in a specialty occupation.”

An employer must prove that the H-1B beneficiary has the required credentials to work in the

specialty occupation. Generally, an employer must show that the H-1B beneficiary holds at least

a bachelor’s degree in the specialty field or, in the alternative, the H-1B beneficiary has

sufficient training, experience, or licensure to engage in the specialty occupation. If the H-1B

beneficiary does not have a bachelor’s degree in the specialty field, an employer may consider

getting a combined education and experience evaluation for a related field of study to

corroborate the beneficiary’s qualifications to fill the position. USCIS also suggests that

employers include a statement explaining how the unrelated degree relates to the job offered to

the H-1B beneficiary.

5. Maintenance of Status

USCIS issued RFEs asking for additional information to establish that the H-1B beneficiary had

“properly maintained [his or her] current status.”

This usually indicates that USCIS may have identified an issue or deficiency in the H-1B

beneficiary’s previous status. To resolve this issue, the beneficiary may provide copies of

previous Forms I-94, Form I-797 approval notices, paystubs, employment verification letters,

and travel itineraries, among other things.



6. Availability of Work (In-House)

USCIS issued RFEs asking petitioning employers to establish that they had specific, non-

speculative work assignments in a specialty occupation for H-1B beneficiaries to be placed in-

house for the entire period of requested employment.

The analysis for this reason is the same as that for off-site work, but it applies to H-1B

beneficiaries who will work in-house.

7. LCA Corresponds to the Petition

USCIS also issued RFEs to petitioning employers to “establish that they obtained a properly

certified Labor Condition Application (LCA)” from the DOL that corresponds to the position in

question.

The LCA must properly correspond with the position offered to the H-1B beneficiary,

specifically in regard to the job title and wage level selected by the employer. USCIS suggests

that employers provide a detailed description of the skills, education, and experience required to

perform the job.

8. AC21 and the Six-Year Limit

USCIS issued RFEs asking for additional information related to establishing “that the beneficiary

was eligible for AC21 benefits or was otherwise eligible for an H-1B extension,” as it appeared

that the H-1B beneficiary had reached the six-year limit.

AC21 refers to the American Competitiveness in the Twenty-first Century Act of 2000, which

allows H-1B extensions beyond six years (the maximum period of stay in H-1B status). In order

to receive an extension, the H-1B beneficiary must show either: (1) that he or she is the

beneficiary of a pending labor certification that was filed more than a year ago and is thus

eligible for a one-year extension; or (2) that the labor certification and Form I-140 have been

approved but no visas are currently available, meaning he or she is eligible for a three-year

extension. An employer may submit copies of the approved labor certification or Form I-140 to

prove that the H-1B beneficiary qualifies for an extension. It may also submit entry and exit

stamps and trip itineraries to recapture a beneficiary’s time spent outside the United States.

9. Itinerary

USCIS issued RFEs asking for a detailed “itinerary with a petition that requires services to be

performed in more than one location. The itinerary must include the dates and locations of the

services to be provided.”

An employer is required to submit an itinerary with its H-1B petitions documenting the dates and

locations of the services to be provided, including all third-party worksites. While not required, a

more detailed itinerary may also serve as evidence that the employer has non-speculative

employment.



10. Fees

USCIS issued RFEs to petitioning employers that failed to pay all of the required H-1B filing

fees.

This sounds simple enough, but the fee structure for H-1Bs is actually relatively complex. H-1B

fees include the American Competitiveness and Workforce Improvement Act of 1998 fee, which

varies in both amount and applicability, depending on the size of the company, how many H-1B

employees the company has, and the nature of the H-1B filing.

Upcoming Changes to the H-1B Cap Filing Process

Next year, for FY 2021, USCIS is likely to implement its new electronic H-1B cap registration

process. If this happens, the current H-1B cap season procedures that we have all come to know

will end. Employers and attorneys will no longer be required to prepare entire petitions for every

case submitted in the lottery. Instead, employers may enter the H-1B lottery by initially

submitting basic information for each employee through the USCIS electronic registration

system. If a given registration is randomly selected, employers would then file the full H-1B

petition on behalf of that particular employee.

To participate in the electronic registration process, employers will be asked to provide a few

entity- and job-related data points. Specifically, the following information will be required:

1. The employer’s name, employer identification number (EIN), and mailing address;

2. The name, job title, and contact information (telephone number and email address) of the

employer’s authorized representative;

3. The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender,

and passport number;

4. Whether the beneficiary has obtained a master’s or higher degree from a U.S. institution

of higher education;

5. The employer’s attorney or accredited representative, if applicable (a Form G-28 should

be also submitted electronically if this is applicable); and

6. Any additional basic information requested by the registration system or USCIS.

USCIS will use this information solely to select enough H-1B petitions to adjudicate under the

annual numerical limitations (the “cap”) and will not review the merit of any of the supplied

information. The final rule prohibits duplicate registrations so that employers may not flood the

system to maximize their opportunity to have an H-1B petition selected. Also built into the

registration process is a safeguard requiring petitioners to attest that they intend to employ the

beneficiary. This is intended to deter employers from submitting registrations but not pursuing

petitions if selected.



There seem to be varied concerns about the new process. In public comments to the proposed

rule, which were summarized and published with the final rule, some opponents argued that

electronic registration would make it easier for employers to hire foreign workers and would not

prevent outsourcing. USCIS pointed out that registration does not favor foreign workers and that

the rule generally favors and prioritizes the higher qualified workers, giving preference to U.S.

master’s degree cases. Supporters of the rule expressed that the new program would make it

more cost-effective for employers to pursue H-1B employees because it will reduce the amount

of work on the front end, and (ideally) it would free up USCIS to create more efficiency within

the agency.

Because USCIS has not provided specific details about the implementation of the electronic

registration process, there is a great deal of uncertainty around the new system—especially in

regard to how much time employers will have to prepare and file the petitions once they have

been selected.

This raises the question: how should employers begin to prepare for the H-1B fiscal year 2021

filing season? USCIS will provide notice in the Federal Register when the electronic registration

system is ready for implementation, which as of the time of writing of this white paper, has not

yet been provided. The agency will also announce the start date for the registration period 30

days prior to opening registration. The registration period will last at least 14 days. If USCIS

needs to extend registration to ensure it has received enough petitions to meet the cap, it will

make an announcement. DHS initially said that employers would have 60 days to file petitions

after notification of selection, but because a number of commenters indicated that the time frame

would not allow entities with a large number of cases selected sufficient time to prepare and file

petitions, the time frame for filing was extended to 90 days.

The 90-day filing window has led many to wonder whether USCIS will be able to adjudicate

cases in time for October 1, the anticipated start date for many H-1B candidates. If registration

does not open until March, as is expected, the filing window could extend into June or July—two

to three months later than the April 1 filing date used in previous H-1B filing seasons. This

concern is further exacerbated by the already-extensive backlogs in USCIS adjudications.

Employers will have to decide how much advanced preparation they want to complete and how

quickly they want to be able to submit their H-1B petitions. In effect, do employers want to

prepare cases in advance so they can be filed immediately upon notification of selection? Or,

would they prefer to wait until the H-1B candidate has been selected before preparing the

petition and then filing within the 90-day window? Or, perhaps some hybrid of the two

approaches?

While it is still undetermined if the new H-1B cap electronic registration system will be used for

the upcoming FY 2021 cap season, if the process is used and it works as intended, employers are

expected to have significantly less documentation to prepare overall to participate in the H-1B

cap moving forward.



Additional Compliance Obligations and Concerns Once the Foreign National Is an

Employee

FDNS Worksite Visits

The Administrative Site Visit and Verification Program (ASVVP) is a key component of the

DHS’s existing anti-fraud efforts. As of 2014, the Office of Fraud Detection and National

Security (FDNS) has conducted administrative site visits regarding approximately 15,000 H-1B

petitions each year. The purpose of these site visits is to inspect and verify the accuracy of

attestations made on petitions for immigration benefits and ensure employers and employees

comply with the regulatory requirements of the immigration benefits received.

Scope of Site Visit

Any company that has filed an H-1B petition may be subjected to an unannounced site

inspection at the work location listed on immigration forms. The FDNS officer will typically

arrive at either the company’s principal place of business or the specified work location with no

prior notice. The duration of a typical visit ranges from 15 to 60 minutes, during which time the

FDNS officer will ask to speak with a company representative and the foreign worker. The

officer will typically have a copy of the immigration petition and will ask questions to confirm

veracity of the information presented in the petition. The officer may also take the opportunity to

ask the foreign worker’s colleagues at the company if they are familiar with the existence of the

particular foreign worker. The employer should be ready to answer questions relating to the

following:

Type of business, locations, number of employees, and recent layoffs;

Company policies with respect to immigration matters, including repayment agreements,

H-1B hiring policies, and green card sponsorship policies;

Details about the specific H-1B or L-1 petition being investigated, including job title, job

duties, work location, salary, work schedule, and dates of employment;

Qualifications of the foreign worker, including education, work experience, and prior

immigration history;

Information about the number of petitions that the employer has previously filed; and

Contact information for the employer’s immigration counsel.

The FDNS officer may also ask to review copies of the H-1B nonimmigrant’s most recent pay

statement and Form W-2, as well as copies of the company’s tax returns, quarterly wage reports,

and/or other company documentation to evidence that it is a bona fide business. After the visit,

the officer may follow up via email with the company and foreign worker for further clarification

regarding any remaining questions or issues incident to the visit.



FDNS officers are typically instructed to report that they verified that the inspected company is

in compliance. Many of the inspectors are contract workers retained by USCIS and thus may

lack expertise about how companies maintain records or may demonstrate employment terms.

Employers are not obligated to submit to disruptive or unreasonable requests for access to

company employees or company property, but they should always cooperate with USCIS

requests and treat the visiting officers with courtesy. An employer can rightfully request that it

have a reasonable period of time to produce documents and company supervisory personnel to

provide the necessary information; officers are typically amenable to such requests and will

usually leave a business card or letter with contact information and a due date for follow-up from

the employer and/or its immigration counsel.

Preparing for Unannounced Site Visits

It is important for businesses to be prepared for these site visits. In 2015, the Administrative

Appeals Office (AAO), which adjudicates appeals from USCIS denials, affirmed the revocation

of an approved H-1B petition in which a foreign national employee could not be found at the

stated job location on the H-1B petition (Matter of Simeio Solutions, LLC). Companies should

have an action plan in place to prepare for such site visits, including internal trainings for

immigration stakeholders, maintaining updated company contact lists, and immediately notifying

immigration counsel regarding any change to the employment circumstances of foreign national

workers.

To prepare for and respond to a site visit, employers should consider taking the following steps:

1. Designate in advance certain company representatives—for instance, in the law

department and/or human resources—to serve as leaders and subject matter experts in the

area of immigration compliance. These experts can educate HR representatives,

receptionists, and security guards at the company’s various work locations regarding the

possibility of unannounced site visits and instruct them in proper protocol for hosting the

visiting FDNS officers. A designated company representative should accompany the

FDNS officer at all times during a site visit, including during times when the officer

wishes to tour the premises and/or interview employees at the company.

2. In the event of a site visit, the company representative (typically a receptionist) should

request the name, title, agency, and contact information for the site investigator (i.e., a

business card). The company representative should not speak with government agents or

contractors without a witness present.

3. Employers should identify in advance which records will be shared with the government

to confirm terms and conditions of employment, as well as where these pertinent records

will be stored, and by whom they will be maintained and distributed. The designated

company representative should maintain complete copies of the relevant immigration

petitions and supporting documents in a confidential file, and the representative should

review this information prior to speaking with the FDNS officer. If the foreign worker

does not already have a copy of the petition, the company should provide a copy to the

worker as well, so that the foreign worker understands the nature of the job opportunity,



terms and conditions of employment, and the education and prior work history as

presented in the government record.

4. If the FDNS officer requests information that cannot be provided without further

research, the employer should indicate as such to the officer and not try to “guess” the

answer. The employer may offer to follow up with the officer at a later time to provide

accurate information after such information is obtained.

5. Employers should conduct internal reviews of their immigration compliance programs

and ensure their records are up-to-date. In particular, employers should ensure that their

foreign workers’ job titles, duties, work locations, and salaries are consistent with the

government record. In some instances, USCIS may require official amendment for

“material” changes to employment conditions, while in other instances, a simple

memorandum may be added to the company immigration file in compliance with

government requirements. Immigration counsel should be consulted regarding how these

principles are applied in each individual fact situation.

Other Current Business Immigration Challenges

1. Extreme Vetting at U.S. Consulates

In a diplomatic cable dated March 17, 2017, the U.S. Department of State issued orders to

American consulates and embassies abroad instructing them to increase their vigilance in

reviewing visa applications and to develop a “list of criteria identifying sets of post applicant

populations warranting increased scrutiny” in order to safeguard national security. These

additional protocols and procedures should focus on: (a) preventing the entry into the United

States of foreign nationals who may aid, support, or commit violent, criminal, or terrorist acts;

and (b) ensuring the proper collection of all information necessary to rigorously evaluate all

grounds of inadmissibility or deportability, or grounds for the denial of other immigration

benefits.”

Consular officers are instructed to increase their vigilance in screening of visa applicants for both

“potential security and non-security related ineligibilities.” Officers are encouraged to deny visa

applicants who may present security concerns or who may not abide by visa requirements. The

additional screening criteria will be developed by interagency working groups to identify the

“population sets” warranting additional scrutiny. These measures are part of “ongoing efforts to

refine and improve visa applicant vetting” and may become increasingly stringent if permitted by

the ongoing litigation over the president’s executive orders. In particular, applicants who “may

have ties to ISIS or other terrorist organizations or [have] ever been present in an ISIS-controlled

territory” are to be flagged for additional screening, and there is a “[m]andatory social media

check for applicants present in a territory at the time it was controlled by ISIS.” After the social

media review, the case is to be sent for a Security Advisory Opinion (SAO) by Department of

State headquarters in Washington, D.C. Iraqi nationals, although excluded from the latest version

of the presidential EO, are also singled out for additional screening.



All of this will result in delays in visa issuance, increases in extended “administrative

processing,” and increases in visa denials. Note that consulates have been instructed to limit each

consular officer to performing 120 visa interviews a day, which may further increase visa

application backlogs in general.

Employers should plan for additional time when applying for visas and visa renewals for foreign

national employees at consular posts abroad. Even individuals benefiting from the Visa Waiver

Program (VWP), which permits entry to the United States without a visa for nationals of certain

countries, may be put into secondary inspection or denied boarding onto U.S. flights or entry into

the United States if they have visited countries where terrorists may have been deemed active.

Recently there have been reports of travelers on the VWP being denied entry due to previous

travel to countries of concern. In 2016, VWP availability had already been tightened for

individuals who had traveled to certain designated countries. Employers may want to limit

international travel, if possible, of foreign national employees who already have temporary work

visas and may be subject to the EO or the new consular screening guidance described above.

Visa denials may also increase for targeted individuals and more generally, as the new

administration continues to emphasize increased vetting of visa applications. The litigation over

the EO is expected to continue—possibly to the Supreme Court of the United States—and if the

EO is upheld, even more visa scrutiny may be forthcoming.

2. New Policy—No Deference Given to Previously Approved Nonimmigrant Visa Petitions

Beginning in 2004, USCIS adhered to a policy of deferring to prior determinations when

adjudicating petitions for extensions of nonimmigrant status. In its October 23, 2017

memorandum, USCIS announced that it was reversing course and would be reviewing each

petition and its supporting evidence as if it were a new position. In the memorandum, USCIS

reiterated that it is the petitioner’s responsibility to prove the eligibility of both the sponsored

position and employee. USCIS said that this policy is more consistent with the agency’s current

priorities, specifically those protecting the interests of U.S. workers.

When filing extension petitions for employees, employers will want to make clear that their

sponsored positions and sponsored employees meet all relevant requirements for their visa

category—even in cases in which there has been little change since the initial petition filing.

3. New Policy—Denial of Petitions Without First Issuing a Request for Evidence

As of September 11, 2018, adjudicators for USCIS now have the authority to deny any

application or petition that is incomplete or lacks sufficient evidence without first issuing an RFE

or notice of intent to deny (NOID). The new guidelines are a reversal of the long-standing former

policy, which required that an RFE be issued unless there is “no possibility” that the deficiency

can be remedied. Depending on the vigor with which it is enforced, this policy shift may

eliminate the opportunity for petitioners and applicants to correct simple errors, like missing

documents, or to beef-up documentation in support of an applicant’s eligibility, before the case is

denied.



USCIS provided the following examples of cases that may be denied after September 11, 2018:

A waiver application that is submitted without enough supporting evidence; or

A filing submitted without the required forms, such as an application for adjustment of

status that is filed without the requisite affidavit of support.

Key Takeaway

According to USCIS, the new guidelines are not intended to penalize individuals for “innocent

mistakes or misunderstandings” of the requirements but rather to discourage people from

submitting “frivolous or substantially incomplete filings,” which it calls “placeholder”

applications. The policy language suggests that adjudicators have some discretion to determine

when to deny an application or issue an RFE, but it is not yet clear how often they will exercise

that discretion or whether they will err on the side of denials.

Given the increased risks of an outright denial and the elevated adjudication standards currently

employed by USCIS, every petition or application sent to USCIS should be checked and double

checked to ensure accuracy, eligibility, and that sufficient documentation has been provided to

support the immigration benefit requested. Employers may want to verify that all of their

sponsored positions and sponsored employees meet the requirements for their visa categories.

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Strategies for a Successful H-1B Visa ProgramBrian D. Bumgardner (Raleigh)

Jennifer R. Shapiro, Executive Director and Assistant General Counsel, JPMorgan Chase & Co.

Immigration Insights

Symposium

September 26-27, 2019

Immigration Insights Symposium September 26-27, 2019

About the H-1B Visa

• Requires bachelor’s degree in professions

• Annual quota on “new” H-1B recipients (e.g., recent university graduates looking to transition to non-student visa)

• Existing H-1B visa holders looking to change employers are not subject to quota

• No labor market test required, but employer must pay “prevailing wage” determined by DOL data and must post notice of job and salary offered at work location (Labor Condition Application or “LCA”)

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H-1B Numerical Exemption (“Cap” or “Quota”)

• Regular cap: 65,000 visas annually

• Advanced degree cap: additional 20,000 H-1B visas available for individuals with advanced degree (master’s or higher) awarded by U.S. academic institution at time of filing


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H-1B Cap (Quota) Filing Timeline

• The government’s “fiscal year” starts October 1

• Starts accepting H-1B quota-subject petitions on April 1 – no earlier

• Next year: file on April 1, 2020 for October 1, 2020 start date (Fiscal Year 2021)

• Company can file H-1B for candidate who has not yet onboarded, or for candidate currently residing outside the United States

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H-1B Supply and Demand: Recent Trend

YearUSCIS Lottery History Selection Rate

2014 Lottery: USCIS received 172,500 petitions 49% Won







“propose new rules and issue new guidance”

“ensure the integrity of the immigration system”

“stimulate economic growth”

April 18, 2017 Executive Order: Buy American, Hire American

Buy American, Hire American

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Buy American, Hire American

• Established Trump Administration priorities:– Protect U.S. workers

– Deter fraud and abuse of immigration system

– Focus on H-1B program to ensure visas go to most highly-skilled and highest paid

• Laid groundwork for subsequent policy changes

• Increased scrutiny to “rigorously enforce and administer immigration laws”


Buy American, Hire American: The Invisible Wall

• Changes at administrative level

• Eliminates need for Congress

• Agency policy memoranda – no formal process

• Harsher adjudication climate

• Policy goals given effect through changes in processing of petitions

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Requests for Evidence

• USCIS Adjudicator’s Field Manual: “USCIS issues written notices in the form of a request for evidence (RFE) to request missing initial or additional evidence from applicants or petitioners who filed for immigration benefits.”

• RFE does not mean the application or petition was filed with incomplete information or documents.

• RFEs do delay adjudication of the matters – increased processing times, increased anxiety.

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According to updated data provided by USCIS, rates of RFEs and denials did increase after “Buy American, Hire American.”

H-1B RFEs and Denials

Fiscal Year H-1B Initial Denial Rate H-1B RFE RateH-1B Total Approved

Rate




2018 15.5 percent 38 percent 84.5 percent

2019 (Q1-Q3) 16.1 percent 39.6 percent 83.9 percent


Changes After Buy American, Hire American

• Computer programmers

• Level 1 wages

• Elimination of deference to prior approved petitions

• Third-party worksites (staff augmentation/contractors)

• New standards for “specialty occupation”

• New standards for “employer-employee” relationship

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Top Reasons for H-1B RFEs

• “Specialty occupation”

• Employer-employee relationship

• Availability of work (both in-house and off-site)

• Beneficiary qualifications (is degree related?)

• Maintenance of status

• Itinerary of work

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H-1B Occupational Codes

• H-1B LCA requires us to pick an occupational code from a list provided by the DOL: O*NET (onetcenter.org) and OOH (bls.gov/ooh/) are the main sources

• Codes might list typical education levels and common fields of study leading to entry in the profession

• There may or may not be a “perfect” code that fits the H-1B occupation


H-1B Occupational Codes

• USCIS: Even though DOL says “most” individuals have degree, degree is not truly “required”

• Example: O*NET code for Computer Programmers: 15-1131

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H-1B Lawsuits and District Court Opinions

• Next Generation Technology, Inc. v. Johnson (September 2017): Even affording appropriate deference to the Government’s interpretation of the statutory and regulatory requirements, this Court is at a loss to see a “rational connection” between the evidence indicating that “most computer programmers have a bachelor’s degree” and USCIS’s determination that “computer programmers are not normally required to have a bachelor’s degree.”


H-1B Lawsuits and District Court Opinions

• RELX, Inc. v. Baran (August 2019): There is no requirement in the statute that only one type of degree be accepted for a position to be specialized. . . . In other words, if the position requires the beneficiary to apply practical and theoretical specialized knowledge and a higher education degree it meets the requirements. Nowhere in the statute does it require the degree to come solely from one particular academic discipline. As other courts have explained “[d]iplomas rarely come bearing occupation-specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge.”

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Strategies to (Try to) Avoid RFEs

• Include detailed description of job duties, including % breakdown if possible

• Check to see if degree is directly related to job offered– BS Computer Science for Software Engineer? Should be fine.

– BS Mechanical Engineering for Software Engineer? Raise a caution flag.

• Check what DOL says about the occupational code– “Most respondents have bachelor’s degree”

– “Job Zone 4”

– “Usually have a bachelor’s degree”


For sound cases, generally no recourse but for employers to assume the risk.

For higher risk roles, additional guidance to the business is recommended prior to offer issuance – to give an opportunity to consider further.

H-1B Considerations in Current Environment

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H-1B Onboarding Timelines

• Candidates can onboard when H-1B transfer petition is filed with USCIS (no need to wait for approval).

• However, many candidates prefer to wait for approval, even when case is solid.

• Worst case scenario for candidates: H-1B transfer is denied; already put in notice with prior employer; candidate has to leave the U.S.

• Ensure everyone is on the same page about onboarding time frame.


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H-1B Cap FY 2021: Electronic Registration?

• Not required to prepare full H-1B petition for submission for receipt on April 1, 2020

• Submit basic information about employer, candidate, and job online

• USCIS will randomly select enough petitions to adjudicate under the cap and will not review merits based on electronic information

• Once selected, expected there will be 90-day filing window to submit full petition with documents

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H-1B Posting Notice Requirements

• March 2019 DOL bulletin about posting Labor Condition Applications (LCAs) for H-1Bs: What is “sufficient notice”?

• Post physically or electronically

• Workers must know where to find the notices

• Staffing vendors with employees working at client locations must work with client to ensure that client’s employees know where to find the vendor’s postings

• Client name is listed on staffing company’s H-1B paperwork (available in public database)


H-1B Site Visits From USCIS FDNS Inspectors

• USCIS’s Fraud Detection and National Security Directorate (FDNS) administers its Administrative Site Visit and Verification Program (ASVVP)

• Unannounced visit to work location

• Inspector will ask to speak with company representative and possibly employee about information on H-1B petition: type of business, number of employees, employee’s compensation, duties performed in position, employee’s education/experience

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Tips to Prepare for Site Visit

• Designate a point person at the company and leave his or her contact information and specific instructions with reception desk.

• If company representative is not sure of answers, don’t guess. Take business card from inspector and confirm after checking files.

• Ensure that employees have copies of H-1B petitions.

• Ensure that material changes in position (e.g., change in job location, significant change in duties/role, change in corporate entity) are reported to immigration counsel, as amended paperwork may need to be filed.


Other Hot Topics in the World of H-1B

• “Extreme vetting”– Form DS-5535 asks where applicant has traveled over last 15

years and for social media handles

– Supplemental visa form requested at U.S. Consulate

• Administrative processing– Also called “221(g)”; can delay visa issuance 4 to 6 weeks or

more while applicant is outside the United States

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Other Hot Topics in the World of H-1B

• H.R. 1044, Fairness for High-Skilled Immigrants Act of 2019 (passed by House 365-65) / S. 386 companion bill in Senate

• Eliminates employment-based green card per-country limitations (but does not increase 140,000 annual number)

• Senate bill adds H-1B impact: 30-day job posting prior to filing LCA; expanded review of LCAs and audits; eliminates “B-1 in lieu of H-1B” short-term visas

Strategies for a Successful H-1B Visa ProgramBrian D. Bumgardner (Raleigh)

Jennifer R. Shapiro, Executive Director and Assistant General Counsel, JPMorgan Chase & Co.

Immigration Insights

Symposium

September 26-27, 2019

Brian D. BumgardnerShareholder || Raleigh

Mr. Bumgardner’s practice includes a full range of business immigration

ma�ers in a varie� of industries, with an emphasis on semiconductor

design and manufacturing, industrial and power equipment

manufacturing, information technology, biotechnology, life sciences, and

health care. He assists employers in obtaining temporary and permanent

work visas on behalf of new and current employees. Mr. Bumgardner

possesses extensive knowledge and experience in preparing visa

petitions for extraordinary abili� workers (O-�), special� occupations

(H-�B, H-�B� and E-�), and the transfer of managers, executives and

specialized knowledge foreign personnel to startup and established U.S.

o�ces (L-�). He is experienced in securing work-authorized

classifications for professionals entering the U.S. pursuant to NAFTA

(TN), as well as a varie� of other temporary employment visa

classifications. Mr. Bumgardner also assists with obtaining U.S.

Department of Labor approval of applications for alien employment

certification (PERM) and petitioning for extraordinary abili�,

outstanding researcher, and multinational manager and executive

immigrant petitions (EB�). Mr. Bumgardner possesses extensive

experience advising on the immigration impacts related to corporate

restructurings and mergers and acquisitions, as well as Reductions in

Force. He also assists companies with I-� compliance issues including

internal audits, government investigations, and compliance programs.

https://ogletree.com/locations/raleigh

tel:+19197893143

mailto:[email protected]

https://ogletree.com/wp/wp-admin/admin-post.php?action=get_vcard&pid=3713&name=brian-d-bumgardner

https://ogletree.com/

Jennifer Shapiro Executive Director and Assistant General Counsel, JPMorgan Chase & Co. Jennifer directs and manages the U.S. immigration function for JPMorgan Chase & Co., a role she has held since 2010. She currently serves on SHRM’s Immigration Panel, having served on the Executive Committee of the Board of the Council for Global Immigration. Prior to joining the bank, Jennifer worked in private practice. Throughout her career, she has concentrated exclusively in the field of immigration law. She holds a JD from DePaul University and a BA in English from the University of Chicago.

Documents

STRATEGIES FOR A SUCCESSFUL H-1B VISA …...visa, however, the H-1B visa has received a great deal of scrutiny in recent years, and there are a number of legislative initiatives in