Trump Administration Increases Scrutiny of H-1B Petitions
Even before taking office, officials in the Trump Administration had announced their antipathy to immigrants in general and to employment-based immigration in particular. In the year since the Administration has held power, this negative attitude towards immigration and the conflating of immigration with national security has manifested in many different ways, from the Muslim Ban, to the elimination of DACA, to midnight arrests of the innocent undocumented, to increased burdens on visitors from visa waiver countries.
The Administration’s negative (and misinformed) attitude towards employment-based immigration was reflected in April’s Buy American and Hire American Executive Order which, among other measures, directed the Department of Homeland Security to “advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.”
This policy – which is contrary to the Immigration and Nationality Act – is being implemented by Citizenship and Immigration Services through its over-strict adjudication of newly-filed Petitions for H-1B status. This over-strict adjudication, combined with an ever-narrowing interpretation of terms and its rejection of deference to previous outcomes has meant sharp increases in denial rates for H-1B’s.
According to recently-released USCIS data, the number of H-1B denials has doubled in the last year. Immigration officials in the Trump Administration have not only denied more H-1B’s, but they have now sharply increased the percentage of cases receiving requests for additional evidence. This includes extensions and transfers of previously-approved H-1B’s as well as Petitions filed by U.S. companies which would not have previously faced such over-rigorous scrutiny. Even H-1B candidates with the highest-level professional and educational credentials are facing obstacles, with half of H-1B cases in the last year subject to deliberately burdensome requests for additional evidence.
This increased scrutiny is contributing to higher costs for U.S. employers in time, effort and resources needed for H-1B’s and is part of a transparent effort to discourage the use of skilled foreign labor by imposing burdens exceeding the requirements of the law.
It is important to note that, despite these additional hurdles, most H-1B’s continue to be approved. It is therefore incumbent upon U.S. employers to continue to use the H-1B program where appropriate and to push back against Administration efforts to dissuade the hiring of qualified and legally-employable foreign workers. For more information about the H-1B process under the Trump Administration click here.
At the Law Office of Matthew I. Hirsch, we have extensive experience in the filing of successful H-1B cases and a track record of approvals after requests for supplemental evidence. For additional information, or to discuss the H-1B process, contact us