USCIS Is Rejecting Petitions Ignoring Precedent and Court Decisions
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.
