A perfect storm is brewing for foreign tech workers to be deported from the United States. Three recent U.S. Citizenship and Immigration Services (USCIS) policy memorandums enable an immigration framework that creates a "deport first, ask questions later" approach to highly-skilled immigration. This storm will severely hinder well-educated professionals from coming to the U.S. and making meaningful contributions to industry and society. The obvious damage will be to the tech industry, but it is only one vertical of many that will be affected by this storm.
In the fall of 2017, the current administration indicated its desire to make changes to the most common visa U.S. employers utilized to bring skilled foreign workers to the United States, the H-1B. Under Donald Trump’s Presidency, USCIS has sought to end the Obama-Era employment authorization for H-4 spouses, revise the definition of specialty occupation, review the H-1B cap system, and increase the evidence requirements to show employer-employee relationships and specialty occupation. USCIS, through the issuance of these three particular memorandums has created a machine that disrupts a system designed to facilitate highly-skilled immigration to the U.S.
The process has already been challenging for H-1B visa holders, particularly those who work at third-party worksites. On February 22, 2018, USCIS issued a policy memorandum entitled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.” This memorandum addressed USCIS’s concerns for H-1B issues that occur when the H-1B beneficiary is working at a third-party client-site directly or through a chain of vendors.
On one hand, USCIS recognizes that third-party arrangements are a common and frequently used business model. On the other hand, USCIS finds that these work arrangements, despite being commonplace, still need additional regulations to minimize issues. Some issues that were raised were “paying less than the required wage, benching employees, and having employees perform non-specialty occupation jobs.” The net effect of this memorandum seems to place additional documentary burdens on the employer any time an H-1B beneficiary will work at one or more third-party worksites. The evidence must demonstrate that that an employer has specific specialty occupation work for the beneficiary and that there will be a valid employer-employee relationship for the full duration of requested validity period.
Although the memorandum does not state that providing contracts or end-client letters is an absolute requirement, it clearly states that if there is no corroborating evidence establishing the work-arrangement, USCIS may deny the petition. In practical terms, a
properly drafted end-client letter has been the most straightforward evidence to establish a legitimate employer-employee relationship and availability of specialty occupation work. A viable end-client letter should have detailed job duties. These job duties should be detailed enough to establish that the nature of the work is highly specialized, requiring a minimum of a bachelor’s degree in a relevant subject matter. It should also state dates of engagement and the relationship between the parties. Unfortunately, end-client letters are difficult to obtain as clients are increasingly skeptical of issuing such a letter so as to avoid incurring additional contractual or immigration liability. Of the clients that do provide a letter, many are not comprehensive and fail to meet USCIS requirements.
On June 28, 2018, USCIS posted a policy memorandum entitled "Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens,” permits USCIS to issue a "Notice To Appear" (NTA), which commences removal proceedings. While this memorandum’s implementation has been delayed due to operational guidance requirements, it states, "USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States." In other words, if an H-1B application is being processed by USCIS and is subsequently issued a denial on an extension petition where there is no time remaining on the original petition, the alien may find themselves in removal proceedings.
On July 13, 2018, USCIS posted another policy memorandum entitled, "Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM).” This memorandum states that, if the initial evidence that is submitted at the time of filing does not establish eligibility for the benefit sought, the adjudicating officer has discretion to deny the case outright. This is in direct contrast to a previous policy memorandum, which stated an adjudicator should issue an RFE unless there was "no possibility" that the deficiency could be remedied by additional evidence.
Let’s examine a scenario where these three memos work together to deport a highly-skilled individual: Mr. John Doe is a foreign tech worker in the United States. He has been diligently working as a Software Developer for almost 10 years. He approaches his employer XYZ Corp, to file for his H-1B visa extension. John has been deployed on a project for a client in California, while his employer is located in New Jersey. John is eligible for 3-year extensions beyond the H-1B 6-year maximum term limit because he is the beneficiary of an approved I-140 immigrant petition. His case is submitted prior to his lawful stay expiring, so he is working on a 240-day work authorization period. The H-1B extension has been pending for a few months. John checks his status on the USCIS website and comes to know that his petition has been denied. John is now in the United States past his I-94 authorized period of stay. According to the June Policy Memorandum, USCIS has the authority to commence removal proceedings against John! John, the ever-mindful individual that he is, thinks he can leave the U.S. voluntarily. Think again, John! If fails to appear for removal proceedings, he will be barred from re-entry into the United States for 5 years.
USCIS is gaining wider latitude to determine that a case does not meet H-1B eligibility requirements and subsequently deny the case. The February memorandum requires a detailed itinerary as a regulatory requirement and the July memorandum makes a case that does not meet the regulatory requirements, deniable outright. Therefore, if John’s
employer failed to include a detailed itinerary, beyond just general statements, USCIS seems to have the ability to deny the case outright. Depending on how USCIS implements these memorandums, the June memorandum could subsequently make John removable. The February memorandum also states that an adjudicator can inspect John’s previous H-1B applications to ensure that the requirements of the H-1B have always been met. If John’s employers were not filing cases appropriately throughout his tenure in the US, this could have an adverse effect on John’s future cases.
Despite the new hurdles, H-1B petitions are not impossible. In fact, demand still far exceeds supply. Rumors of a 50% drop in H-1B demand during the cap season from previous years was a clear falsity. H-1B amendments and extensions are still high in number and success is still possible. There are certain strategies to employ that can
facilitate an approval, namely:
- Petitioners should ensure proper documentation is submitted with the initial filing;
- Detailed job duties evidencing the necessity of a specific degree;
- Include an opinion letter from a qualified expert to strengthen the case with the initial filing, especially in critical cases;
- Third-party placements must include a detailed itinerary beyond generalized statements;
- Third-party placements should document valid employer-employee work arrangements with properly drafted end-client letters and/or contracts; and
- Ensure that H-1B amendments are filed prior to the H-1B beneficiary commencing work on a new project if the terms of employment are materially changing.
President Trump's coveted love for highly-skilled immigration seems to be more imaginative than material. No exception has been created in these three policy memorandums that facilitate the nurturing of highly-skilled immigration. Diligence above all will help us weather this storm.