2017 Was a Challenging Year for Employers and Employees Who Depend on H-1B Visas

For this reason, it is our utmost priority to ensure our clients remain compliant with the ever-changing U.S immigration laws.

As you know, H-1B cap season is coming soon.  The deadline for USCIS to begin receiving H-1B applications is April 2nd, 2018. Like previous years, we project USCIS will receive a large volume of H-1B petitions.

The H-1 Rejections rate is high and has been increasing. Please see the below Trend of H1B Petitions in the last three years:

Application and Approvals FY 2015 FY – 2016 FY- 2017
Receipts 368,852 399,349 336,107
Approvals 307,129 348,162 197,129
Rejected % 16.73 % 12% 41%

https://tinyurl.com/USCIS-Application-and-Approval

A Few Tips in Preparing your H-1B Petition This Year

Job Duties: USCIS will analyze your proffered position to see if it meets the regulatory definition of specialty occupation.  Last year, USCIS issued a guidance memo right before the H-1B cap deadline determining that an entry-level computer programmer position will generally no longer qualify as a specialty occupation under the Department of Labor’s Occupational Outlook Handbook (OOH).

Because it is the responsibility of the petitioner to establish that the job is a specialty occupation, it is therefore important for employers to work with their immigration practitioners review your proffered position.

In line with this, it is helpful to provide a very detailed job description.  This will help USCIS understand the nature of the proffered job position.

Wage Level:  USCIS began heavily scrutinizing petitions filed under the “Level 1” wage of the OES system this past year.  This is attributed to President Trump’s Executive Order which instructed the Department of Homeland Security and other government divisions to suggest reforms to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries”.

Indeed, USCIS review of your H-1B petition will likely include heightened focus on whether the prevailing wage you have chosen is appropriate to the proffered position. The Department of Labor has provided a 2009 Prevailing Wage Determination Policy Guidance to assist certain employers who use the OES system in determining prevailing wage.

Again, working with your immigration practitioners can help you navigate this requirement of the H-1B program to meet prevailing wage levels.

Beneficiary’s Qualification:  The H-1B position is one that requires a specific specialty or its equivalent, for entry into that occupational field.   Thus, not just any degree will qualify.  If the beneficiary’s education does not, on its face, appear related to the proffered position, the beneficiary may need to provide additional evidence of employment experience in the field to be equivalent to a degree in the field.

For these types of cases, it is always important to work with your immigration practitioner to determine whether you will need to obtain proof of experience or an expert opinion.  Analyzing this ahead of time will prevent delays in the filing process.

Collect Evidence of The Work Available and Right to Control:  Specialty occupation work must be available and an employer who hires an H-1B worker must have control over the H-1B’s employment at the job site.  This is especially the case if the beneficiary will be placed at an offsite location.   Any evidence submitted to show this should include the job duties, duration of the project, and other specifics.  If there are middle vendors involved, it is important to obtain evidence from them as well.  We can help review these types of documents.

CONCLUSION Requests for Evidence (RFEs) do occur for petitioners filing H-1B petitions in this current climate.  Planning ahead and working with your immigrating practitioner early to address any questions or potential issues is key to preparing a well-documented petition and for follow-up after the case is filed.

We’re Here to Help. Please feel free to contact any of the following Immigration practitioners who can assist with getting you started on the right track to properly navigating and filing an H-1B petition.  We’re happy to schedule an in-person meeting at any of our offices.

If you are in Atlanta, we have an office or can arrange a remote consultation, as per your convenience. Please contact us below:

Phani Bobba (Legal Consultant): (678) 578-5356 Phani.Bobba@chugh.com
Zoe Mirza (Immigration Specialist): (770) 881-9216 Zoe.Mirza@chugh.com
Jaymen Chavda (Attorney): (770) 881-9209 Jaymen.Chavda@chugh.com
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