Employers Brace for Battle with the USCISOctober 18, 2018
As is widely known, employment-based immigration cases have come under increased scrutiny in recent times. For example, in March of 2017 the USCIS issued a policy memorandum indicating that the position of “computer programmer” is no longer considered a “specialty occupation” for H-1B visa eligibility. This runs contrary to decades of prior rulings otherwise. As well, a sharp increase in the number and scope of Requests for Evidence (RFEs) are being issued for H-1B petitions, L-1 petitions, TN petitions, and other employment-based categories. These RFEs are occurring even on extensions, where the USCIS has previously approved the employer and the employee.
Here are some examples of USCIS reasons recently given to deny or challenge an H-1B, L-1, or TN petition or extension or a green card application:
- The occupation does not require a specific degree and therefore does not constitute an H-1B specialty occupation.
- The wage level is so low that the job cannot be an H-1B specialty occupation;
- The employee’s degree is not directly related to the H-1B or TN position;
- The knowledge or experience possessed by the employed is not L-1 specialized knowledge;
- The job duties do not qualify for the TN category under the listed occupation;
- The job that was sponsored for the PERM green card market test is not in the same or similar occupation as the present job held by the employee.
Presently it is difficult to obtain an employment-based approval from USCIS, at least without substantial pushback from the government. In addition, employment-based green card cases now require an interview at the local USCIS office for the employee and his or her family. Interviews in employment-based green card cases were discontinued decades ago and this return to the interview phase reflects an effort by the USCIS to eliminate applicants at the final stage after many years of waiting. As well, the reintroduction of an interview into the green card process certainly will slow the overall process even further. It is critical that the attorney, the company, and the employee understand the critical issues relating to visa eligibility, so that a meritorious case can be successfully processed.