Click Here for Up to Date COVID-19 Information

For the health and safety of our team, FordMurray attorneys and legal analysts will be working remotely at this time. For contact information, click here.

6 Strategies to Avoid USCIS H-1B Denials

Data assessment from the United States Citizenship and Immigration Services (USCIS) Data Hub shows denial rates for new H-1B petition and H-1B extensions at unprecedented levels in the two fiscal years since President Trump took office.

The USCIS launched the H-1B Employer Data Hub in early April. The Hub is part of an ongoing initiative to provide transparency in the H-1B petition process, in this case, allowing the public to view information about companies using the H-1B visa, how many visas a company petitions for, and the denial rates for these petitions.

According to an article published this week in Forbes, the denial rate of initial H-1B petitions nearly doubled in FY 2018 – from 13% to 24%. It surged to 32% through the first quarter of 2019. The rate of denials for continuing H-1B extensions – those who have already been issued an H-1B visa and are applying for a 3-year extension, a change of employer, or filing an amended petition – is equally profound, more than doubling in 2018, from 5% to 12%, and leaping to 18% for the first quarter of 2019.

The increase in denials are not the result of changes in law – rather, changes in the way the existing law is being enforced. While the negative impact on the legal immigration of highly skilled foreign workers to the United States cannot be overstated, employers and their valued team members should not feel hopeless. It is a time to be vigilant and prepared when filing H-1B petitions and extensions, and we have some strategies for making sure you present your best case to USCIS.

Know the Positions Being Targeted

A 2018 Reuters investigation revealed that entry level positions were most often the target of Request for Evidence filings from USCIS. Even positions that require vast training and technical skills, such as doctors and engineers – have seen increased scrutiny if they are considered “entry level.” USCIS has also targeted IT consulting companies and positions that do not provide site-based employment. If you are hiring for a position that could be considered “entry level” or not site-based, take extra precautions in providing evidence for your petition.

Provide Detailed Information about the Position Being Offered

Clarify the job description to show highly skilled nature of the position. Supporting documentation should show why the position is not entry level in nature. Don’t assume the reviewing officer knows why a position is not entry level – you will want to spell out the nature of the position, and why the candidate has the specific qualifications and merit for the position.

Do Your Research

Research the occupation against the Occupational Outlook Handbook and O*Net, and compare with similar positions within related organizations to ensure that the position normally requires a degree in a specific field and such degree and field can be proven. If possible, offer a Level 2 wages or higher for the position – this is another way of showing the position is not “entry-level” and is not undercutting the U.S. labor market. Consider obtaining an “expert opinion” from a Professor in the industry detailing the occupation and/or industry, as well as the minimum requirements for such a position within the industry. If you are on the “edge” of whether this position may be questioned as “professional,” the statement of an expert in the field can be extremely helpful to the overall petition strength.

Be Thorough

Make sure all the relevant documentation is present. For example, submit higher education degree WITH accompanying transcripts. Ensure your LCA is certified and ALL pages are submitted. DO NOT submit required forms and filing fees separately. The LCA, Forms and Checks should be submitted concurrently.

Be Consistent

Ensure that you are using similar SOC codes, requirements, and descriptions for similar positions across your organization. Ensure that your recruitment for these positions has similar requirements – e.g., a Bachelor degree in computer science and two years of related experience. Look at other employers similarly situated (size, location, industry), and compare your requirements against their requirements for similar occupations – are you consistent with the industry? When you compare your position against the Department of Labor’s Occupational Outlook Handbook for positions that are similar – are you in line with their requirements and descriptors?

Get Help

If you have identified a candidate for the H-1B position, that is only the first step. The H-1B filing process can be confusing and is high-stakes. If you need help at any point in the process, don’t hesitate to contact our team of experienced business immigration attorneys – we offer complimentary consultations and can help you plan the best path forward. For more information on H-1B visas, download our comprehensive guide – we offer a guide for employers and for employees.