Responding to H-1B Request for Evidence in the Trump Era

An H-1B visa is an employment visa for professional workers in specialty occupations that have at least a bachelor degree or equivalent.  Throughout the H-1B visa’s history, the United States Citizens and Immigration Services (USCIS) has been concerned that employers will abuse the H-1B visa by displacing American workers with foreign Responding to H-1B Request for Evidence in the Trump Era counterparts at lower wages.

In 2009 and 2013, the Obama Administration sought to reform the H-1B visa after a study conducted in 2008 revealed that 21% of H-1B visas were granted to applications that contained fraudulent or technical violations.  In the 2008 study, 42% of H-1B visas granted to computer professionals contained fraudulent or technical violations.

Even after the Obama Administration’s changes abuse and fraud remain a concern of the H-1B application process. In 2016, two lawsuits were filed against Disney, which alleged Disney and its staffing companies colluded to use the H-1B visa to replace American workers with foreign workers at lower wages through a series of layoffs.  The suits were dismissed in federal court after a judge found that the plaintiffs had failed to present enough evidence that would reasonably demonstrate that Disney had engaged in the alleged activity.

When Donald Trump took office he vowed to place American workers and American jobs first and end the exploitation of American labor and capital.  President Trump’s Buy American and Hire American executive order illustrates his administration’s will continue to pursue policies to carry out his campaign promises.

As part of President Trump’s Buy American and Hire American mantra his administration took another look at the H-1B visa in 2017 and altered what the USCIS may consider as evidence when reviewing an H-1B visa application.

This article explores the new evidentiary standard that will be applied, the industries most likely to be affected by the Trump administration’s new standard, and what information must be demonstrated to obtain an H-1B visa under this new standard.

H-1B Visa Requirements

An H-1B visa is reserved for “specialty occupations,” which is defined as “theoretical and practical application of a body of highly specialized knowledge” and “a bachelor’s or higher degree in the specific specialty.”  In lieu of a bachelor’s degree, an applicant may have “equivalent experience in the specific specialty.”  Typically, three years of specialized training or work experience may be substituted for one year of school.  Letters from a former employer, license, or special recognition may serve as proof of specialized training.

A job qualifies as a specialty occupation if an employer is able to demonstrate one of the four criteria:

(1) A bachelor’s degree or its equivalent is normally the minimum entry requirement for the position and the required degree relates to the position; or

(2) The degree requirement is common to the industry or the position is so complex or unique that it can be performed only by an individual with a degree; or

(3) The employer normally requires a degree or its equivalent for the position; or

(4) The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree.

It is the employer’s duty to demonstrate that a job meets one of the H-1B visa requirements.  If an employer fails to demonstrate a job meets the H-1B requirements, the USCIS may deny the visa application or require the employer to complete a Request for Evidence (RFE). A RFE is a request for evidence that a job meets the requirements of a specialty occupation.

Request for Evidence

The USCIS adjudication officers have the full authority to approve or deny an H-1B visa application.  In addition to the application, an adjudication officer consults the Department of Labor’s Occupational Outlook Handbook (OOH), which contains the nature of work, working condition, education and training, and salary for hundreds of jobs in the United States.

When reviewing an application, the adjudicating officer will not only look at the job title, but will consider the industry, nature of the employer’s business, and the salary or the hourly wage of the position.

Adjudicating officers use a RFE to obtain additional information about a specific job’s duties, the degree requirements of employees in similar positions at the company, and information regarding the industry as a whole.

USCIS March 31, 2017 Memorandum

The USCIS’s memorandum on March 31, 2017, declared that entry-level computer programmer positions would not automatically be considered a specialty occupation because the OOH states that a bachelor’s degree in computer programing is not required to be a computer programmer.

According to the OOH, some computer programmers have a bachelor’s degree in computer programming, but others have a bachelor’s degree in computer science, mathematics, statistics, and liberal arts. Additionally, some computer programmers only have a two-year degree. The USCIS reasoned that because the OOH describes alternative educational paths to becoming a computer programmer it would be improper to generally consider the position of a computer programmer to be a specialty occupation without further evidence that a specific position requires specialized knowledge.

Typically, employers filed an H-1B visa for computer programmer positions by claiming that a bachelor’s degree in computer programming is the minimum requirement to enter the field. In completing the application employers would reference the OOH.

However, the USCIS’s memorandum made it clear that the USCIS will only issue an H-1B visa if the job unequivocally is a specialty occupation and requires specialized knowledge. To prove a position meets this standard an employer cannot rely solely on the OOH. If an employer relies solely on the OOH or does not provide sufficient proof, the USCIS will issue an RFE.

Overcoming the RFE

When either responding to an RFE, or to avoid receiving an RFE with the initial application, considered the following as evidence to support an H-1B visa application: (1) that the position meets the H-1B standards; (2) that the position is described in accordance with the H-1B standards; (3) the position is comparable to the employer’s competitors; and (4) the requirements of previous employees at the same company.

First, make sure the position meets the requirements of the H-1B visa and the position does require specialized knowledge. No amount of embellishment will change the actual facts surrounding the job.

Second, make sure the job description adequately reflects the H-1B standard. For example, using words such as specialized, unique, complex, or senior help articulate that the job duties require specialized knowledge. In contrast, avoid words such as assist, aid, or support. These phrases reflect that the applicant does not need specialized knowledge because the applicant will be assisting a co-worker who possesses the desired knowledge.

Third, provide evidence that a degree is common in the industry by submitting a copy of a job posting for a similar position at a different company. The best comparable positions outline the same or similar job qualifications, will require the same education prerequisites and will be for a position at a similarly sized company in the same industry.

Additionally, one comparable job is unlikely to be convincing evidence. Under the new USCIS policy the best practice is to provide unequivocal evidence that the H-1B visa standards have been met. Therefore, an application that submits a hundred comparable job advertisements is more likely to be approved than a job application that submits ten comparable job advertisements.

Fourth, if there are no direct comparable positions look internally. Review the profiles of previous employees who have held the position for evidence that this position has always required a certain educational background. For example, maybe the computer programming profession does not mandate that a professional have a bachelor’s degree computer science but an employer has never hired a computer programmer without a four-year computer science degree.

Additionally, carefully look at the description of the particular job in question. If there are any responsibilities of a particular position that are different from the industry indicate why an advance degree is necessary in the RFE response. For example, if the particular job in question must solve complex problems without supervision but a similar position in the industry typically has the support of a supervisor when solving complex issues, then an advanced degree may be necessary.

The best response to an RFE will contain a combination of all of the above. The response will articulate the sophisticated knowledge required for the position, demonstrate that competitors require a specific advanced degree, and prove the company has a track record of requiring its previous employees held similar credentials. A response that provides evidence of the above will is likely to meet the evidentiary standard set by the USCIS under the Trump administration.

Entry Level Positions

The USCIS’s memorandum on March 31, 2017 did not change or limit an employer from sponsoring an H-1B visa for an entry-level position as long as the H-1B standards are met.

Meeting the H-1B standards may be more difficult because entry-level positions usually do not require advanced or complex knowledge that can only be completed if the employee has obtained a specific degree. In contrast, entry-level positions are often designed to teach new employees the complex internal operations of a company in the hope that the new employee advances in the company.

As a result of the utility of the entry-level position, an employer will need to demonstrate a specific degree is required within their industry or the position at their company requires a more advance degree because of the additional responsibilities entry-level employees hold at their company. In proving their job is unique, employers should reference their previous hiring practices and previous employees job experience and education prior to being hired.

Avoid Embellishing the Job

Trying to over embellish a job description that does not meet the H-1B visa standards with the H-1B visa buzz words, such as complex, unique, and specialized, will most likely be unsuccessful. Under the Trump administration the USCIS has begun to use an employee’s salary as evidence that the employee will be taking an entry-level job.

If using a H-1B visa for an entry-level position, make sure to discuss the hiring practices and the unique role of the company. There are ways to successfully hire an entry-level position with an H-1B visa; therefore, there is no reason to embellish the job position.

Conclusion

The USCIS will require unequivocal evidence that a job meets the H-1B visa requirements and if the evidence is not sufficient employers should expect an RFE. The demand for more evidence supports President Trump’s agenda to hire American employers over foreign nationals.

While the USCIS has not indicated that their intense scrutiny will extend beyond computer programmers, other analyst, financial, or informational technology positions may become subject to the computer programmer analysis. One certainty under the Trump administration is that nothing will stay constant.

 

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