Effective September 11, 2018 USCIS Empowered to Make Determinations Without
Issuing RFEs and NOIDs
USCIS has dramatically increased the rejection of H-1B petitions of all
types including H-1B Cap, H-1B Extensions and H1-B Transfers. Most of
these petitions are being denied using the Specialty Occupation argument.
USCIS is not accepting legal precedent, evidence, expert opinion or even
the Department of Labor’s Occupational Outlook Handbook and O*Net.
They are also arguing that U.S. District Court decisions are non-binding
and do not impact their determination. The USCIS is essentially arguing
that since there is no uniform minimum educational requirement in the
Information Technology industry (in particular), many of the positions
under which technology companies file for their employees, no longer qualify
as a Specialty Occupation – an essential requirement for an H-1B visa.
USILAW has reached out to multiple stakeholders, including contacts at
large U.S. technology companies (with no H-1B dependency and few third-party
placements), and found that across the board everyone is seeing the same
types of decisions. The concern is that no regulatory or legislative process
is tied to this change and it seems to be a decision made entirely by
the Trump administration. The USCIS also did not make any announcement
of any changes in their interpretation of laws.
The dramatic escalation of rejections can be traced back to the USCIS Policy
Memo (PM-602-0157) issued on February 22, 2018. Administratively, the
USCIS has also taken measures by removing on February 21, 2018, Mr. Ron
Rosenberg, who headed the USCIS Administrative Appeals Office. It now
seems that, taken in totality, the USCIS has taken a decision to deny
cases irrespective of merit and evidence.
We are coordinating a plan of action with different stakeholders and the
American Immigration Lawyers Association has been following these recent
developments and is contemplating its next steps.
We will be providing periodic updates on this issue.
Should you have any questions, or need any clarifications, please contact us.