VISABy Joshua S. Mirer, Megan R. Naughton, and Jennifer L. Shanley of Robinson+Cole

Under President Trump’s “Buy American and Hire American Executive Order,” H-1B petitions are facing heightened scrutiny. U.S. employers may notice an increase in requests for further evidence and, possibly denials, from the U.S. Citizenship and Immigration Services (USCIS).[1] In addition, government site visits are expected to increase five-fold to confirm the veracity of  H-1B petitions. While the USCIS has heightened its scrutiny, foreign nationals can still qualify for the increasingly narrow H-1B category. To do so, the employer must understand the type of positions that qualify for an H-1B visa and describe the requirements for the position with specific, yet limited degree requirements, choose the most accurate prevailing wage category and wage level, and,  present evidence that the position and the foreign national qualify for an H-1B visa.[2]

USCIS Director L. Francis Cissna stated that “USCIS officers are at the front lines of the administration’s efforts to enhance the integrity of the immigration system.”  There is no question that, under the Trump Administration, the USCIS is taking this sentiment as far as it will reach.[3]

MIRER NAUGH shanle
Mirer Naughton Shanley

The H-1B visa category[4] is one of the most widely recognized and hotly debated visa categories that U.S. employers rely on when sponsoring foreign nationals for work authorization. The H-1B visa category requires a U.S. employer to file a petition with the USCIS, sponsoring a foreign national for a position that generally requires, at a minimum, a bachelor’s degree in a specific occupational specialty related to the position. The foreign national must also possess at least the equivalent of a bachelor’s degree in a field related to the position.[5] Under the Trump Administration, the USCIS has become more restrictive in approving H-1B petitions, citing a variety of reasons.

 Areas under attack include the types of positions that employers are sponsoring for foreign national workers and the fields of study for the sponsored position. A position cannot require a general degree – such as a business degree; it must be more specific. But, while the degree requirements must be specific, it should not include a variety of degrees. For instance, the USCIS has attacked positions that allow for a range of degrees, stating that the position does not qualify for a specialty occupation as it does not require a degree in a specific specialty. To ensure that the position is accurately stated, the position should require at least a bachelor’s degree in specific and a limited number of related fields that require a similar educational foundation.  For example, an employer may require that a statistical programmer possess a degree in statistics or computer information systems—both fields that, as part of a bachelor’s degree program, teach students how to effectively utilize their skills in information technology to solve industry problems. Because the employer can show that the degrees are related and require a similar educational foundation, this position should be approved by the USCIS—though, no doubt, can still be extensively questioned by the USCIS.

The USCIS has also required employers to demonstrate, through primary evidence, that the position does, in fact, require the attainment of a bachelor’s degree in a specific specialty. There are various ways an employer can demonstrate this fact, including but not limited to, providing a copy of the employer’s job description, providing evidence that it employs other individuals in the same position who possess the degree requirements in a specific specialty, and copies of job postings for similar positions within like-companies in the industry.

The USCIS also attacks the prevailing wage category and level employers choose for the sponsored position. Employers must understand and appreciate the varying prevailing wage categories available and choose the category that most accurately reflects the job duties of the position, aligning the seniority level of the position with the prevailing wage level. Employers should only indicate a level one prevailing wage if the position is an entry level position, requiring little to no experience in the field.

The USCIS, under the Trump Administration, has certainly increased the scrutiny for which it reviews H-1B petitions.  With planning and careful execution, however, U.S. employers can continue to be successful in obtaining an H-1B visa for its current and prospective employees.

 

Joshua S. Mirer serves as co-chair of Robinson+Cole’s Immigration Group and has nearly 20 years of experience counseling multinational Fortune 100 and Global 500 companies on all their corporate immigration-related legal needs.

 

Megan R. Naughton, co-chair of Robinson+Cole’s Immigration Group, has over 18 years of experience successfully handling U.S. business immigration matters. She represents a wide range of clients, from start-up to Fortune 500 companies, in a variety of industries, including financial services, insurance, technology, manufacturing, and higher education.

 

Jennifer L. Shanley focuses her practice on U.S. immigration law, with an emphasis on business immigration matters. She is a member of Robinson+Cole’s Immigration Group.

 

[1] The Department of State has also increased its scrutiny in issuing visas (travel documents) to foreign nationals – even those who have already been approved for a certain nonimmigrant status.

[2] The authors of this article do not purport to provide any legal advice.  Readers are cautioned not to attempt to resolve issues on the basis of information contained herein and are strongly advised to seek advice from an experienced immigration attorney regarding specific case situations.

[3] While the burden of proof in establishing eligibility for an H-1B petition is on the U.S. employer filing the petition, in the past the USCIS gave deference to the findings of a previously approved petition, as long as the key elements were unchanged.  Now, regardless of whether USCIS previously approved a petition in the past, it is instructed to review petitions as if it were the very first time. 

[4] The H-1B1 visa category for nationals of Chile and Singapore and the E-3 visa category for nationals of Australia have similar requirements to that of the H-1B visa category.

[5] A foreign national can possess a U.S. bachelor’s degree, or the equivalent of a bachelor’s degree through a foreign degree or through a combination of education and experience that has been evaluated to be the equivalent of a U.S. bachelor’s degree. For instance, if a foreign national possesses twelve years of experience in a particular specialty, the foreign national’s experience background may be the equivalent of a bachelor’s degree in that particular specialty.  The USCIS recognizes three years of work experience in a relevant specialized field to be equivalent to the attainment of one year of college.