Arbitrary H-1B Nonimmigrant Visa Denials Have Employers Thinking Federal Litigation Rather Than Administrative Review
U.S. Citizenship and Immigration Services (USCIS) data between 2015 and 2019 show that denials of the H-1B Specialty Occupation Nonimmigrant Visa Petitions have quadrupled for both initial H-1B petitions and those seeking the continuation of employment with the same employer.
According to immigration policy analysts, including the National Foundation for American Policy (NFAP), this is a result of more restrictive Trump administration policies, specifically the 2017 “Buy American and Hire American” executive order. The “Buy American and Hire American” executive order provided for executive agency regulatory and adjudicatory reforms to the employment-based immigration system, including the H-1B nonimmigrant visa, to “create higher wages and employment rates for workers in the United States.”
In the pre-“Buy American and Hire American” H-1B processing times, there was clarity in adjudication. What has transpired since the 2017 executive order has created confusion and concern for employers, foreign employees, and immigration agents alike. What used to be an easily approvable H-1B petition has now become easily deniable. Thousands now in the United States under the H-1B visa face possible denials of requests for H-1B visa extensions for their same positions with the same employers, despite having applied many, many times in the past without issue.
Faced with inconsistent initial agency decisions and “rubber-stamp” agency appeals that can take years and leave employers and foreign employees in limbo, many immigration practitioners are turning to federal district courts for review— bypassing the typical agency review process.
About the H-1B Temporary Specialty Worker Program
The H-1B nonimmigrant visa program allows U.S. employers to sponsor foreign nationals who temporarily relocate to the United States to work in positions deemed “specialty occupations.” Broadly defined, these are positions that normally require a minimum of a bachelor’s degree or higher in a specialty field.4 Created in 1990, the H-1B program permits temporary employment for initial durations of up to three years, with extensions available that allow the foreign national to hold H-1B status for no more than six years.
Before the employer can file a petition with USCIS, it must take steps to ensure that hiring the foreign worker will not harm U.S. workers.
Employers must attest on a Labor Condition Application (LCA) certified by the U.S. Department of Labor (DOL) that:
- The employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers;
- The wage offered to the H-1B worker is the higher of the actual wage paid to similarly employed U.S. workers, or a DOL determined prevailing wage for the area of intended employment;
- Existing U.S. employees in the same occupation are not on strike or in a lockout;
- Existing U.S. employees were provided with notice of the employer’s intention to hire an H-1B worker; and
- The employer will provide a copy of the DOL certified LCA to the foreign-born employee prior to commencement of the specialty employment.
Since the creation of the H-1B program in 1990, Congress has limited the number of H-1B visas made available each fiscal year. From 1991 through 1998, Congress set the annual statutory cap at 65,000 H-1B nonimmigrant visas, with an increase in 1999 and 2000 to 115,000 H-1B nonimmigrant visas. The cap reached an ultimate high of 195,000 from 2001 to 2003. In 2004, the annual statutory cap was reduced to 65,000. To adjust to a need for H-1B nonimmigrant visa employees with advanced degrees, an additional 20,000 H-1B visas were added in 2007 for foreign professionals who graduated with a master’s degree or doctorate from a U.S. institution of higher learning. Today, the cap remains at 65,000 per year, plus the additional 20,000 for foreign professionals with a master’s degree or doctorate from a United States institution of higher learning.
In recent years, the Congressionally imposed cap has been reached within days of when employers are permitted to begin submitting H-1B petitions. In the 2010, 2011, and 2012 fiscal years, the annual cap was reached an average of 183 days from the opening of the petition filing period, which typically begins on April 1. In each year between 2014 and 2020, the annual cap was reached within five days of the opening of the petition filing period.
Qualifying for an H-1B
To qualify for the H-1B temporary nonimmigrant specialty worker program, there must exist an employer-employee relationship, or the intent to enter into one if the H-1B petition is approved. The employer must pay at least the actual wage or the DOL prevailing wage, whichever is higher, and must seek certification of the job from the DOL by filing a labor condition application.
Moreover, the job must qualify as a “specialty occupation.” The Code of Federal Regulations broadly defines a “specialty occupation” as an:
occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
This broad definition is followed by a rather narrow “standard” that lists four alternatives, one of which the position “must” meet:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
With a certified LCA from the DOL and a position that qualifies as a “specialty occupation,” the inquiry shifts to the prospective foreign employee to establish eligibility premised on one or more of the following:
- Holding a U.S. bachelor’s or higher degree, as required by the specialty occupation, from an accredited college or university or its foreign equivalent;
- Possessing the required license or other official permission to practice the occupation (such as those required by attorneys, physicians, architects, surveyors, or physical therapists) in the state of proposed employment; or
- Having education, specialized training, or progressively responsible experience, or a combination of the three, which are the equivalent to a U.S. bachelor’s degree or higher in the specialty occupation, with recognition of expertise through progressively responsible positions directly related to the specialty occupation.
H-1B nonimmigrant visa occupations have typically encompassed a wide array of positions in a multitude of industries.
In the most recent fiscal year, 2018–2019, 62,556 U.S. employers submitted a total of 664,616 LCAs to the DOL. Six of the top ten occupations were Computer and Software related occupations, accounting for 63%, or 629,285 of the total LCAs submitted to the DOL. The top 10 employers submitted LCAs to the DOL requesting an aggregate of 252,320 H-1B nonimmigrant visa workers. These employers, including Amazon, Apple, Cisco, and Deloitte, are America’s most trusted and cross the political divide with their products and services.
In the same period, U.S. colleges and universities sought over 5,800 foreign-born professors and assistant professors, with other employers requesting physicians, attorneys, accountants, architects, therapists, management consultants, teachers, researchers, pharmacists, nonprofit administrators, and advanced industrial technicians. Employers from every state requested H-1B nonimmigrant visa workers, with New Jersey, New York, and Pennsylvania among the top 10 states seeking H-1B nonimmigrant visa workers.
The demand for H-1B employees by U.S. employers is clearly obvious, and the need is significant. The impact of those employees on each employer and the overall American economy is critical. According to the American Immigration Council (AIC):
In today’s labor market, foreign workers fill a critical need— particularly in the Science, Technology, Engineering, and Math (STEM) fields. Many opponents of the H-1B visa seek to pit native-born workers against their foreign-born colleagues. In reality, workers do not necessarily compete against each other for a fixed number of jobs.
The United States has created a dynamic and powerful economy. Foreign-born workers of all types and skills, from every corner of the globe, have joined with native-born workers to build it. Skilled immigrants’ contributions to the U.S. economy help create new jobs and new opportunities for economic expansion. Indeed, H-1B workers positively impact our economy and the employment opportunities of native-born workers.
Moreover, the H-1B nonimmigrant visa program has a net positive impact on the wages of native U.S. employees. Again, according to AIC:
- From the creation of the H-1B program in 1990 up until to 2010, H-1B-driven increases in STEM workers were associated with a significant increase in wages for college-educated, U.S.-native-born workers in 219 U.S. cities. An increase of 1 percent in foreign STEM workers’ share of a U.S. city’s total employment correlated with an increase of wages from 7% to 8% paid to both U.S.-native-born non-STEM degree college graduates and U.S-native-born STEM degree college graduates, and a 3% to 4% percent increase in pay for non-college-educated U.S.-native-born workers.
- In the three years between 2009 and 2011, wage growth for U.S-born workers with at least a bachelor’s degree was nominal, but wage growth for workers in occupations with large numbers of H-1B petitions was substantially higher.
- On average, H-1B workers earn higher wages than employed U.S.-born workers with bachelor’s degrees— $76,356 compared to $67,301—including in areas like computer and information technology, engineering, healthcare, and post-secondary education. When comparing workers of the same age cohort and occupation, H-1B workers earn higher wages than their native-born counterparts. Specifically, in 17 of 20 age cohort and occupation groups, wages for H-1B workers are higher than non-H-1B workers.
- The median salary of H-1B workers rose from $69,455 in FY 2007 to $80,000 in FY 2016, with the median salary of all computer and mathematical workers in the United States increasing from $73,979 to $75,036.
Further, H-1B nonimmigrant visa workers complement U.S. workers and fill employment gaps in many STEM occupations. With the “United States fac[ing] challenges in meeting the growing needs of an expanding knowledge-based innovation economy, [a]rguments that highly skilled, temporary foreign workers are freezing out native-born workers are rebutted by the best available empirical evidence.” A review of unemployment rates in the United States from 2004 to 2018 in occupations for which H-1B nonimmigrant visas were granted found low unemployment levels for those occupations, which, consequently, indicates a workforce supply shortage in those occupations.
If operated without political influence and at optimum efficiency, the H-1B nonimmigrant visa program would result in a growth of job opportunities for all U.S. workers and the overall economy. In a statement submitted to the U.S. Senate Committee on the Judiciary for the March 2015 Hearing on Immigration Reforms Needed to Protect Skilled American Workers, the U.S. Chamber of Commerce noted that economists estimate that if the H-1B program was expanded, employment will increase by 227,000 jobs in the first year after such expansion and will continue to expand with a net increase of 1.3 million jobs over the first 30 years after H-1B program expansion. Using the same modeling, the Gross Domestic Product is estimated to expand by $22 billion if the H-1B program is expanded, with more than $158 billion expansion over 30 years. Employment and gross state product is estimated to increase for all states and in each of the first 30 years as a result of H-1B program expansion.
What Has Happened?
While H-1B nonimmigrant visa holders are critical to the U.S. economy and thousands of employers across the United States, from New Jersey, New York, and Pennsylvania to California, analysis of USCIS data between 2015 and 2019 related to H-1B visa petitions shows that denials have quadrupled for both initial H-1B petitions and those seeking continuation of employment with the same employer.
In practice, the current H-1B nonimmigrant visa adjudication process is itself internally inconsistent, with the following main issues: a lack of deference to, or understanding of, the doctrine of res judicata; unsupported denials; unnecessary and duplicative requests for additional evidence; and frequent administrative appeals. Due to the lack of a meaningful administrative appeals process, what is likely to start occurring is a slew of federal lawsuits challenging H-1B visa denials. This is a procedural step that petitioning employers rarely took in the past, but it is now becoming the only avenue of due process for actual and reasonable review of an H-1B nonimmigrant visa petition.
Denial rates for H-1B petitions have increased significantly during President Trump’s first term, “rising from 6% in FY 2015 to 24% through the third quarter of FY 2019 for new H-1B petitions for initial employment … In the first three quarters of FY 2019, USCIS adjudicators denied … 12% of H-1B petitions for continuing employment. The 12% denial rate for continuing employment is historically high—4 times higher than the denial rate of only 3% for H-1B petitions for continuing employment as recently as FY 2015.”
H-1B petitions for initial employment include those “primarily for new employment, typically a case that would count against the H-1B annual limit.”31 H-1B petitions for continuing employment include “extensions for existing employees at the same company or an H-1B visa holder changing to a new employer.” Of those H-1B petitions approved, no data exists on the number of employers served with Requests for Evidence (RFEs), which require the petitioning employer to respond to specific requests from USCIS for documents and information and to provide additional supporting evidence and legal arguments in support of the qualifications of the job offered and the employee for the H-1B program.
The increase in rates of denial is “a result of more restrictive Trump administration policies,” specifically the administration’s 2017 “Buy American and Hire American” executive order, which ordered executive agency regulatory and adjudicatory reforms to the employment-based immigration system, including the H-1B nonimmigrant visa, to “create higher wages and employment rates for workers in the United States.”
Year after year, U.S. employers seek extensions without any material changes of H-1B nonimmigrant visas for foreign-born employees who already work for the employer, are already under H-1B non- immigrant visa status, and have previously been granted H-1B non- immigrant visa status multiple times by USCIS. Extension requests mean there has been no interruption in employment and that this is an identical submission to those previously submitted and previously approved, often multiple times. Deference, one would assume, would be given to the prior approvals? No.
Prior to October 2017, deference, or the doctrine of res judicata, was indeed applicable to some extent. In April 2004, the Department of Homeland Security (DHS) published a memorandum providing “that in matters relating to an extension of nonimmigrant petition validity involving the same parties (petitioner and beneficiary) and the same underlying facts, a prior determination by an adjudicator that the alien is eligible for the particular nonimmigrant classification sought should be given deference.”
On October 23, 2017, DHS rid itself of deference by rescinding the April 23, 2004, memorandum:
USCIS is rescinding the policy of requiring officers to defer to prior determinations in petitions for extension of nonimmigrant status as articulated in the [April 23, 2004] memoranda. USCIS is also providing updated guidance that is both more consistent with the agency’s current priorities and also advances policies that protect the interests of U.S. workers.
Since then, no consistent guidance has been provided. According to immigration practitioners, USCIS sends out template denial letters and template requests for evidence in nearly all matters, even those that are clearly approvable and supported with significant evidence.
Adjudicators are simply told to treat every H-1B nonimmigrant visa petition as if it were the first, and to deny petitions for whatever reason.
Adjudicators are doing just that, and the increase in denials for H-1B nonimmigrant visas for continuing employment is clearly apparent. As noted, during the “first three quarters of FY 2019, USCIS adjudicators denied … 12% of H-1B petitions for ‘continuing’ employment.” This denial rate is at a historical high, and employers should expect these rates to continue to increase through 2020 and into a possible second term for the Trump administration.
Among those U.S. companies that lost continuing H-1B employees were Google, Amazon, Facebook, IBM, and Cisco.
Cognizant Technical Solutions US Corporation of Texas received 2,696 H-1B nonimmigrant visa denials for continuing employees, with Deloitte losing nearly 1,600 H-1B nonimmigrant visa workers who were already employed.
Immigration practitioners report that denials come in the form of template letters that are often inconsistent with the evidence that was submitted, the responses to requests for additional evidence, and the existence of prior adjudications of the very same occupation; petitioning employer; and foreign-born, long-term H-1B nonimmigrant visa employee.
With an agency appellate process that can take over a year, employers and their foreign employees are left frustrated. The agency appeals, however, are often “rubberstamps” of the underlying decision, as evidenced by the 3 percent Administrative Appeal Office (AAO) reversal rate between fiscal years 2014 and 2017.
Employers Using Federal Courts to Bypass Administrative Appeals
Left with little hope by USCIS or the AAO, more employers are considering or seeking relief from federal district courts, pursuant to the Administrative Procedures Act (APA) and the Mandamus and Venue Act of 1962.
When weighing the costs of litigation and the unreasonability of underlying USCIS decisions and the lengthy time and lack of substance of the AAO appellate process against the real possibility of quick resolution before a fair adjudicator with opposing counsel that actually reviews the entirety of the record, employers are more inclined to seek federal district court action and bypass the AAO. In federal court, there is a stronger likelihood of fulfilling the need for a consistent, nonarbitrary, foreseeable adjudicatory process for essential employees and occupations.
In typical APA agency matters, a plaintiff must exhaust all administrative remedies before seeking judicial review. This is not necessarily the case in employment immigration matters, however. In Darby v. Cisneros, 509 U.S. 137, 153-54 (1993), the U.S. Supreme Court mandated exhaustion of administrative remedies prior to judicial review only when the underlying statute or regulation requires exhaustion of administrative remedies.
It is fortunate but not widely known that no existing statute or regulation mandates an administrative appeal before the AAO as
a prerequisite to judicial review. As employers seek other paths of relief, federal judicial intervention is quickly becoming an employer’s course of direct appellate review of the arbitrary, inconsistent, and unknowable USCIS adjudication processes.
Given their strict adherence to procedure, practice, and timeliness, together with their ability to facilitate amicable settlements and agreements that are otherwise unavailable in immigration matters, federal district courts provide an opportune venue for immigration practitioners who have become accustomed to long agency delays and federal immigration courts and review boards, such as the BIA, that retain little, if any political independence.
This article was originally published by The Federal Lawyer in its May/June 2020 issue, beginning on page 50.
To learn more about this blog post or if you have any other immigration concerns, please feel free to contact me at firstname.lastname@example.org or (484) 544-0022.