The Trump administration has always given extra scrutiny to the H-1B program, but exactly what it’s scrutinizing appears to be changing.
In the last year and a half, the U.S. Citizenship and Immigration Services has shifted its scrutiny from the amount of wages for new visa holders to whether the positions qualify for a specialty visa in the first place.
The shift is causing immigration attorneys to wonder if USCIS is actively trying to disrupt, slow down, or discourage companies from seeking the skilled guestworker visas.
“I believe that they have been using procedural means to achieve their policy goals” of decreasing H-1B visas, Sandra Feist of Grell Feist in Minneapolis told Bloomberg Law.
Around mid-2017, the agency’s focus was on employers offering entry-level wages to their H-1B workers, questioning whether those entry-level jobs were in fact appropriate for the visa. Now, the focus has shifted to whether the position is a “specialty occupation” covered by the visa, attorneys say.
That’s especially been the case where more than one degree is accepted either in the occupation as a whole or by the employer sponsoring the foreign worker, Susan Cohen of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo in Boston told Bloomberg Law.
“It’s kind of like the flavor of the month,” she said.
Agency Denies Shift
The USCIS for its part denies that there’s been any policy shift with respect to its views of what’s considered a specialty occupation. The agency is planning a new regulation on that subject but hasn’t yet released it.
“Each year, immigration benefits are attainable for many law-abiding individuals legitimately seeking greater opportunity, prosperity, and security as newly entrusted members of society, and to this end USCIS takes great pride in helping these dreams become a reality,” agency spokesman Michael Bars said in a statement provided to Bloomberg Law. “USCIS is committed to rule-of-law and merit-based immigration reforms that benefit U.S. workers, the American people, and our society to the greatest extent possible.”
“We still think wages should factor in” to whether an H-1B should be approved, Eric Ruark, director of research for NumbersUSA, told Bloomberg Law. “We’ve always said that the best way to allocate the H-1Bs is by wage” because “that’s an indication of the value of the employee,” he said.
NumbersUSA, which advocates for lower immigration levels, would be “wary” of a shift away from scrutiny of wages, Ruark said. But “there’s only so much that the agency can do under the existing law,” he said.
The current USCIS target for scrutiny appears to be on degree requirements, Cohen said. Agency adjudicators often rely on the Labor Department’s Occupational Outlook Handbook as a basis for determining whether those requirements make the job one that’s appropriate for the visa.
But USCIS adjudicators are picking and choosing OOH language “to justify their position that the job doesn’t require a specialized bachelor’s degree,” Cohen said.
For example, the OOH may say that “most employers require this kind of a degree, but not all employers require a degree,” she said. The USCIS will use that language to suggest that the position isn’t a specialty occupation because a bachelor’s degree isn’t required in all instances, she said.
The agency is looking at what’s required in the “occupation as a whole,” Debra Schneider of Fredrikson & Byron in Minneapolis told Bloomberg Law. Even if an employer requires a single degree, the USCIS will cite the OOH to say that other employers require more than one degree, and question the petition on that basis, she said.
But “there hasn’t been any real scrutiny” of employers’ use of the visa since the current program was created in 1990, Ruark said. Employers are always going to complain if there are more rules to follow, but the H-1B visa was never intended to displace U.S. workers, he said.
It will take time to see whether the additional scrutiny has a meaningful impact on U.S. workers’ job prospects, Ruark said.
Employers Pushing Back
The USCIS’ inability to stop the influx of H-1B petitions with a focus on wage levels may have caused it to give up and look at degrees instead, Cohen said. With employers successfully pushing back on the degree issue as well, a new line of scrutiny could be next, she said.
Schneider recently received an H-1B approval on behalf of her client after suing over its denial on the grounds that the job wasn’t a specialty occupation.
“I think it’s pretty telling that the administration thinks that employers are choosing H-1Bs over qualified, interested, talented U.S. workers,” and yet the employers are spending all this additional time, effort, and expense, to hire and retain the guestworkers, Feist said. “Obviously they still need them.”
“It’s a concentrated effort” to reduce H-1B visa issuance, but “in the end I think most cases are still getting approved,” Cohen said. “It’s just much more painful.”
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