Group representing tech companies calls H-1B adjudication practices into question

A group representing some of the country’s largest and most powerful technology companies sent a letter to the Trump administration last week, calling into question the legality of U.S. Citizenship and Immigration Services’ adjudication of many H-1B visa petitions.

“The agency’s current approach to H-1B adjudications cannot be anticipated by either the statutory or regulatory text, leaving employers with a disruptive lack of clarity about the agency’s practices, procedures, and policies,” the group, Compete America, said in its Nov. 1 letter addressed to Secretary of Homeland Security Kirstjen Nielsen, USCIS director L. Francis Cissna and other high-ranking Department of Homeland Security (DHS) and USCIS officials. “This lack of certainty and consistency wreaks havoc among the nation’s employers which are hiring high-skilled Americans and foreign-born professionals.”

Compete America said that in the last 18 months companies have seen a dramatic increase in H-1B denials and Requests for Evidence (RFEs), and that more recently they have seen a sharp increase in the issuance of Notices of Intent to Deny (NOIDs) and Notices of Intent to Revoke (NOIRs). The group listed three trends that it said are legally problematic:

• The denial of petitions based on the view that entry-level jobs cannot be considered “specialty occupations.”
• The denial of petitions based on the view that a requirement for a specific field of study means that applicants must have completed a specific major or obtained a specific qualifying degree.
• The denial of petitions based on the view that a bachelor’s degree is always required rather than a “usual requirement” for obtaining an H-1B visa.

The San Jose Mercury News quoted a USCIS spokesman as saying that the administration has been “relentlessly pursuing merit-based policy and regulatory immigration reforms, including a thorough review of employment-based visa programs so they benefit the American people to the greatest extent possible” and that USCIS would “continue adjudicating all petitions, applications and requests fairly, efficiently, and effectively on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”

The Compete America letter marked the second time in the last three months where leading companies have criticized the Trump administration’s high-skilled immigration policies. In August, 59 CEOs signed a Business Roundtable letter expressing “serious concern” about immigration policy changes under President Trump.

“Inconsistent government action and uncertainty undermines economic growth and American competitiveness and creates anxiety for employees who follow the law,” the Business Roundtable letter said. “In many cases, these employees studied here and received degrees from U.S. universities, often in critical STEM fields.”

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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