Challenges To H-1B Visa Petitions And Potential Solutions For HR Professionals

How to ensure that an H-1B petition selected by lottery is approved?

The most popular non-immigrant professional work visa faces more challenges under the current administration.
 
Already subject to a lottery due to a cap on the number of visas authorized annually by Congress (85,000), the H-1B currently has more petitions than there are visas available (this year: 195,000, last year: 225,000). To help parse through the backlog, the United States Citizenship and Immigration services recently shifted a policy to encourage more thorough petitions to be submitted for review.

 

Assuming an H-1B visa petition were to be picked in the lottery, this creates a new challenge and takes away the ability to supply supplements after being selected.
 
A professional qualified for an H-1B visa holds a “specialty occupation,” considered to be a job that requires the minimum of either a United States Bachelor’s Degree, foreign equivalent, related work experience or combination thereof. Frequently, a professional evaluation is needed to analyze a foreigner’s education and/or employment experience to equate it with a Bachelor’s Degree.
 
A three-to-one formula often applies for work experience, meaning that three years of related work experience can be considered equal to one year of U.S. college. Thus, 12 years of incremental related work experience might equal a US Bachelor’s Degree.
 
By a policy memorandum dated July 13, 2018, the United States Citizenship and Immigration Services (USCIS) announced that effective September 11, 2018, it will no longer issue a Request for Evidence (RFE) for a petition it is reviewing but will instead either approve or deny based upon that review. This latest policy memo permits a denial based upon what the USCIS calls “lack of sufficient initial evidence.”
 
Formerly, USCIS would issue an RFE, effectively allowing, a “second bite of the apple.” USCIS maintains that this policy is necessary to discourage placeholder filings or more specifically defective or incomplete H-1B petitions filed in an attempt to make it into the lottery. If those placeholders were selected by the lottery and issued an RFE, the filing could be supplemented later.
 
Recently, such RFEs had become ubiquitous.
 
In fact, the USCIS issued RFEs for nearly 70 percent of all nonimmigrant petitions filed in the last quarter of 2017. RFEs increased by 300 percent just between the 3rd and 4th quarter of fiscal 2017. This suggests that rather than issue an RFE and have to review the copious materials that the diligent prospective employer files in response, USCIS has concluded it is more efficient to approve or deny the petition as filed.
 
Therefore, what is the best way, post 09/11, to ensure that an H-1B petition selected by lottery is also approved?
 
One way is to heed what RFEs used to focus on. RFEs of recent date often quibbled over what constituted a “specialty occupation.” Even though the beneficiary of the H-1B visa may possess a Bachelor’s or even a Master’s Degree, supplementary information from a federal governmental source — such as the Occupational Outlook Handbook or Bureau of Labor Statistics showing that this is the norm — is advisable.
 
Demonstrating that a Bachelor’s Degree is normal for the job title in question by providing a sampling of advertisements from well-known websites such as www.indeed.com  and www.monster.com could be helpful.
 
Further, supplying an organizational chart of the prospective petitioner’s staff is useful if it shows that employees in the same position as the beneficiary of the H-1B petition all possess a Bachelor’s Degree, by attaching those individuals’ resume, degree, and transcripts as proof.
 
Finally, it can be prudent to contact an educational evaluation service to provide a professional opinion, usually by a university professor, that the position is indeed a “specialty occupation” requiring a Bachelor’s Degree.
 
Another type of RFE questioned the wage level to be paid.
 
By way of background, an H-1B petition must be preceded by an approved labor certification application from the US Department of Labor, signifying that the proffered wage is equal to or greater than the local median wage. In the form online filed for this certification, the wage level must be identified.
 
There are four choices for the wage level, basically broken down by amount of experience and autonomy. Wage levels can only be determined after selecting an accurate job title within the Standard Occupational Classification found at Department of Labor’s Occupational Information Network at www.onetonline.org and comparing that job description to the prospective position the H-1B beneficiary will perform.
 
Not infrequently, the USCIS issued an RFE when the prospective employee was to be paid at “Wage Level 1,” arguing that a Bachelor’s Degree should not be required for a Wage Level 1 position. This reasoning, at least to date, has been satisfactorily refuted as follows: every employee, even a medical doctor or university professor, commences a career at an entry level position, and therefore is paid at the lowest wage level.
 
Since many H-1B petitions are filed by employers desirous of continuing to employ recent graduates who are on their Optional Practical Training Period at the conclusion of their F-1 student visa, this argument has worked — at least so far.
 
If an H-1B visa petition is selected in the H-1B lottery, supplying the information suggested above as part of the petition could decrease the possibility of a denial by USCIS. No approvals or denials implementing this new policy have been issued by USCIS to date.
 
However, it is advisable to pay attention to how the USCIS interprets this new policy and meanwhile, file thorough H-1B petitions with strong corroborating evidence identified above.