Recently Released USCIS Documents Reveal Sources Behind H-1B Restrictions and Delays

United States Citizenship and Immigration Service (USCIS) documents released as a result of a Freedom of Information Act (FOIA) lawsuit filed against USCIS by the American Immigration Council (AIC) on the American Immigration Lawyer’s Association’s (AILA’s) behalf reveal the policies and sources behind recent H-1B petition restrictions and delays. AILA President Marketa Lindt states, “The documents released by USCIS reveal the way the agency has shifted its focus in… adjudications, creating more obstacles for U.S. businesses to hire and retain the talent they need.”

For example, the previously unreleased document Implementation of March 31, 2017 Memo, Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions” which provides USCIS adjudicators with instructions for implementing the publicly released March 31, 2017 USCIS Policy Memorandum Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions” eliminate many positions from qualifying as H-1B specialty occupations.

Forbes reports  that the Guidance Memo instructs adjudicators that entry level computer programmer positions generally do not qualify as a specialty occupations because the Department of Labor Occupational Outlook Handbook states that “. . . some employers hire workers with an associate’s degree” rather than a bachelor’s degree. The document goes on to state that “This same analysis should be conducted for occupations where the Occupational Outlook Handbook does not specify that the minimum requirement for a particular position is normally a bachelor’s or higher degree in a specific specialty.” Forbes notes that this policy is not grounded in law and contradicts the statute, which does not require an employee to have a degree but allows for qualification based on experience.

The same Policy and Guidance Memos further instruct adjudicators to evaluate whether the wages employers offer to H-1B worker match up with the employer’s description of the position. Bloomberg Law explains that USICS adjudicators were not provided sufficient training about this policy for months after it was issued. For example, the USCIS Nebraska Service Center said it was holding 2,000 H-1B petitions pending release of training slides. An Additional Guidance Regarding Wage Level Analysis document was not released until March 2018, nearly a year after the policy’s release and further preliminary guidance still was being issued on aspects of the policy as late as May 2018.  Bloomberg law cites said Diane Rish, AILA’s associate director of government relations, who explains the lack of internal guidance at the USCIS caused delays in the processing of thousands of H-1B specialty occupation visa petitions and resulted in reports of inconsistent agency communications and decisions.

Also released as a result of the lawsuit are March 23, 2017 USCIS document “H-1B RFE Standards”  and  July 17, 2017, “H-1B AC21 Denial Standards” evidencing increasingly strict immigration policies that have resulted in H-1B denial rates rising from 6% in FY 2015 to 32% in the first quarter of FY 2019 (as reported by the National Foundation for American Policy (NFAP) , and Requests for Evidence (RFEs) for H-1B petitions reaching 60% in the first quarter of FY 2019 (as reported by  USCIS). 

Visit AILA’s H-1B Wage Level and Specialty Occupation Documents Released in FOIA Lawsuit for a full list of documents released as a result of the lawsuit.