It’s no secret that since the beginning of 2017 there has been a shift toward enhancing scrutiny of immigration policies and practices in the U.S. A series of memos and an executive order have directed immigration agencies to tighten the reins on immigration adjudication and enforcement. The immigration visa that has been under a lot of scrutiny during these discussions has been the H-1B visa.
In March, the Trump administration issued a memo directing immigration adjudication and enforcement agencies to be under more intense scrutiny and another indicating that computer programming no longer fell under the H-1B categorization of “specialty occupation.” And in April, the signed executive order “Buy American, Hire American” targeted the H-1B visa and its petitioners, calling for a second look at the practices in companies hiring foreign workers under this visa.
More attention on H-1B petitions
According to recently released numbers from USCIS, attention to H-1B visa petitioners has increased in more than just policy. The agency has increased its attention on H-1B petitioners and beneficiaries, by asking for more requests for evidence to accompany petitions. Requests for evidence are inquiries made by USCIS for additional evidence to help in the determination of whether to award an H-1B visa as support of a particular case.
What are the details of the USCIS requests for evidence data?
From January 1 to August 31, the USCIS issued 85,000 requests for evidence (RFEs) for H-1B petitions. That’s a year-over-year increase of 45 percent, while the number of H-1B petitions rose only 3 percent over the same period. Companies with immigration policies and H-1B petitions are now looking over their shoulders thanks to the increased attention to the H-1B and even a new public database with corporate immigration information published by USCIS.
Why are RFEs on the rise?
RFEs give USCIS a chance to review supporting materials for H-1B petitions that have been submitted. This appears to be part of the current administration’s initiative to re-focus hiring on American talent. Issuing requests for evidence means there are more obstacles being put in place for organizations looking to hire foreign nationals.
Are all H-1B organizations affected by the RFE increase?
Yes. Any organization that has petitioned for an H-1B visa could be issued an RFE. There is no evidence of any particular business or industry being targeted more heavily than others at this point, which means the playing field is relatively equal.
What should I expect?
Organizations should expect longer wait times on H-1B petitions, as well as associated costs that historically may not have been accounted for.
There are a number of different types of RFEs that can be issued, depending on the specific H-1B petition in question. Here are some of the most common RFEs that you should be on the lookout for: VIBE, entry level wages, specialty occupation and right to control.
VIBE RFEs are somewhat straightforward, in the sense that as USCIS compares the H-1B petition to its VIBE (Validation Instrument for Business Enterprises) database with publicly available information about your organization; however, there may be some discrepancies that may need to be resolved.
The entry level wages RFE attempts to pit the Labor Condition Application submitted for the workplace against the H-1B petition to make sure the petition does, in fact, qualify for Level 1 wages (based on a 4 wage scale with 1 being the lowest).
The specialty occupation RFE questions the beneficiary’s proposed role as one of special qualification, according to the parameters set for the H-1B visa and could require more information around the position or job description.
The right to control RFE attempts to establish the relationship between the offsite employee and the employer, making sure the employer does, in fact, have an established right to control the employee’s work actions, not the end client if one does exist.
Is an RFE an H-1B denial?
No. An RFE is not a denial of an H-1B petition. It’s an inquiry into the details of a particular case. If evidence is found to be insufficient upon further inquiry, however, it could lead to a denial of the petition. There is a possibility that the stricter guidelines and enforcement measures we’re seeing could impact the number of RFEs that lead to denials, but nothing can be concluded on this issue just yet.