IT Sector Bears Brunt of USCIS’ Inconsistent H-1B Policies

A recent article in Forbes examined data released by USCIS on its adjudication of H-1B petitions in Fiscal  Year 2018. The data reveals some clear trends and casts doubt on whether USCIS is applying an even hand to all petitions.

In short, the top handful of IT companies applying for new H-1B employment in Fiscal Year 2018, which includes Syntel, Infosys, Mindtree, and HCL America, had denial rates between 34-54%, with Capgemini and Cognizant having denial rates of a staggering 80% and 61%, respectively. Conversely, U.S. tech giants Amazon, Facebook, and Apple had only 1% or 2% of their new H-1B petitions denied. Naturally, this raises concerns that USCIS is applying different standards to the IT sector, which often sends its employees to work on-site with clients, than to traditional tech jobs, which requires employees to work at the employer’s offices. In looking at the data, one would be hard-pressed to draw any different conclusion.

DHS Pushes Forward with H-4 Employment Rule Rescission

On February 22, 2018, the American Immigration Lawyers Association (AILA) released an advisory calling attention to the U.S. Department of Homeland Security’s Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan, which was released in October 2018 and gives an overview of anticipated regulations. These regulations do not always come to pass, and many times are revised even if they are eventually written into law.  The advisory noted a proposed DHS regulation entitled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.”

In February 2015, DHS published a final rule that permitted certain H-4 spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status to also receive employment authorization. The rule has been criticized heavily by the Trump Administration, and the Unified Agenda states a November 2018 time frame for the release of a rule reversing the 2015 DHS regulation. Despite that stated goal, the text of the H-4 EAD Rescission Regulation has not yet been released.  It is currently pending review with the Office of Management and Budget, after which time it will be published for public comment before possibly taking affect.

DOJ to Blame for Immigration Court Backlog

It is no secret that the immigration courts, run by the Executive Office for Immigration Review (EOIR), are seriously overworked and backlogged. The American Immigration Lawyers Association (AILA) recently obtained a copy of the EOIR’s Strategic Caseload Reduction Plan for dealing with this backlog, but the data makes it clear that EOIR’s strategic plan was a colossal failure and has been completely undermined by the Department of Justice, the federal agency under whose jurisdiction the EOIR sits. While EOIR’s plan was to significantly reduce the case backlog by 2020, the case backlog has actually increased by 25% since the plans approval in October 2017. As of the end of 2018, there are over 800,000 cases in the EOIR backlog.

To immigration attorneys familiar with the EOIR, the changes dictated by the DOJ and former Attorney General Jeff Sessions would no doubt lead to increase in the backlog and the undermining of due process rights for individuals in the EOIR system. Both have come to pass.

AG Sessions referred several Board of Immigration Appeals cases to himself, which allowed him to rewrite what had been long-standing precedent dealing with procedural mechanisms for disposing of cases before the EOIR. In short, he deprived immigration judges of the ability to administratively close cases and limited their ability to continue cases to a later date. Administrative closure is generally used to put cases to the side while individuals seek other relief outside of the immigration courts that would render their EOIR case moot and allow it to be dismissed. By removing this tool, and actively re-activating cases that had already been administratively closed, the DOJ added a large number of cases back into the system and effectively made the EOIR proceed with cases that would have been resolved on their own without further EOIR involvement.

Further, continuances are a useful tool to push hearing dates into the future, which is often necessary for an individual before the EOIR to find legal representation or to allow an attorney sufficient time to prepare for a case. With continuances now restricted, it is much more likely that an individual will be forced to proceed before the EOIR without representation, which significantly undermines due process and increases the likelihood of an adverse decision.

Even more concerning has been the streamlining of hiring for immigration judges, which is troublesome when coupled with reports of judges being selected or forced out based on political ideology rather than merit.

Regardless of your political beliefs, Americans profess adherence to the principle of due process for all, and what is occurring at the EOIR as a result of administrative meddling for political reasons, undoubtedly undercuts that principle.

DHS Publishes Final Rule Modifying H-1B Lottery Process

As previously discussed in our post on December 4, 2018, DHS has indicated that it intended to amend its rules pertaining to the H-1B lottery system. For a detailed discussion of those plans, please refer back to the earlier post.

On January 31, 2019, DHS did as promised, publishing a final rule in the Federal Register that will amend the regulations pertaining to the H-1B lottery.  Although the rule is effective April 1, 2019, the employer registration requirement has been suspended for this year’s H-1B cap.  As a result, employers wishing to apply for a cap-subject H-1B this year must use the same method utilized in prior years. The order in which petitions are selected has been reversed immediately, though, with the lottery being held for the regular cap first, and then the master’s cap. This method should result in the selection of a larger number of H-1B applications with advanced degrees.

Going forward, employers will be given a period of at least 14 days to register for an H-1B for specific beneficiaries. The registrations are then selected by lottery, with those selected then being given a window of at least 90 days in which to file the full H-1B petition.

USCIS Processing Delays at Record Levels

The American Immigration Lawyers Association (AILA) recently released a policy brief detailing the unprecedented processing delays at USCIS. As a practitioner, it has been increasingly apparent that USCIS under the Trump Administration has been implementing policies that waste resources and result in slower adjudications of petitions.  AILA’s policy brief supports this observation and details some very alarming statistics:

  • The net backlog of cases at the end of Fiscal Year 2017 was the highest on record, more than doubling from 1,047,751 cases to 2,330,143 cases – despite only a 4% increase in case receipts during that year and no significant personnel reductions at USCIS.
  • 74% of application and petition types equaled or exceeded record-long average processing times for the period examined.
  • Since the Trump Administration took office, processing times increased for 79% of form types filed with USCIS, and the average processing time per case increased by 46%.
  • In the last year alone, USCIS’ case volume declined 17%, but overall average case processing times increased by 19%.

The results of these delays profoundly impact our clients in many ways.  A delayed work authorization may mean a lost job opportunity.  Delayed advance parole may mean being unable to leave the United States for a family member’s illness or death. Delayed processing of some forms results in humanitarian relief for abandoned children, refugees, and domestic violence victims coming too late to be meaningful. These delays mean longer separations for spouses, parents and their children, and other relatives. No one wins when USCIS fails to do its job efficiently.

While processing delays are not an uncommon complaint from applicants, there are two factors that exacerbate the frustration. First, USCIS has adopted policies that intentionally slow down processing for no discernable benefit to applicants or the United States. USCIS no longer gives deference to prior adjudications for nonimmigrant, employment-based extension petitions involving the same employer and employee. It requires interviews for nearly all employment-based green cards. It has enacted policies that result in USCIS referring individuals to immigration court for de minimis immigration violations or when a petition is denied for a curable error. It is fixing problems that do not exist.

Second, it has been systematically removing tools for applicants to find out what is going on with their cases.  InfoPass is scheduled to be phased out by the end of 2020. The USCIS Service Center email boxes were eliminated as of January 21, 2019. The online case status option is usually incorrect or outdated, and customer service rarely knows anything specific about individual cases.

This is an untenable mess, and one that does not look to get any better under the Trump Administration, which has made bogging down immigration – legal and illegal – a cornerstone of its policy agenda.

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