VOL. 11 | NO. 16 | Saturday, April 21, 2018
EMPHASIS: LAW & THE COURTS
More Scrutiny for Employers Likely This Year From Immigration Services
By Michael Waddell
Local immigrant and businesswoman Alexandra Matlock knows how hard it can be navigating the U.S. customs process. Her journey coming from Colombia to eventually obtaining permanent work status in the U.S. took well over a decade.
Alexandra Matlock has been through the work visa process as principal of marketing company ContigoCreative LLC, saying it took 14 years to gain permanent status. Immigration experts say employers can expect more scrutiny now. (Memphis News/Houston Cofield)
“Back in 1992 when I first arrived here with my ex-husband, who is a doctor, we came from Colombia on a J-1 and J-2 visa for his residency and training in the medical field,” said Matlock, founder of ContigoCreative LLC marketing firm. “Once we wanted to jump to the H visa and once we got a sponsor, the whole thing of moving from J-1 to H-1 and acquiring permanent status took 14 years.”
With the April 1 deadline for filing H-1B visa petitions gone, Memphis employers should expect more scrutiny than ever from immigration services.
The H1-B is the bread-and-butter visa for working in the country. Most companies who are hiring individuals, particularly recent graduates, use the H1-B to do so.
There are roughly 85,000 H-1B visas available each fiscal year, with a congressionally mandated annual numerical limit of 65,000 visas (commonly known as the “regular cap”). Another 20,000 are carve-out visas for exemptions from the H-1B cap for beneficiaries who have earned a U.S. master’s degree or higher (commonly known as the “master’s cap”).
Last year, there were roughly three times more applications than there were visas available, according to David Jones, an immigration attorney for national labor and employment law firm Fisher Phillips.
“Based on everything that we experienced with the government, there was some belief that there might be fewer applications this year,” Jones said. “But from what we’re seeing anecdotally, it seems like there might be more. So I think there’s going to be a lot more competition for them in terms of the lottery. That’s something that employers might want to be aware of.”
He points out that last year the U.S. Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) denied, by percentage, twice as many H1-B applications as it had for several years. Areas hit particularly hard by the crackdown included the IT industry, such as computer programmers, software developers and database administrators.
“It all stems from the ‘Buy American, Hire American’ executive order, and they are basically putting H1-Bs and a lot of other immigration policies under much stricter scrutiny,” Jones said. “So they seem to be looking for ways to attack the application.”
According to data from the USCIS, the number of H1-B denials rose from 11,588 in 2015 to 21,226 in 2016 to 28,684 last year.
Jones attributes part of that number to the fact that a large number of H1-B applications were subject to a request for evidence, primarily centering on an idea of what can be a “specialty occupation.”
“An H1-B has to qualify as a specialty occupation, and that’s a position that normally requires the obtainment of a bachelor’s degree or higher in a certain subject area,” Jones said. “What USCIS did last year is they attacked certain occupations that don’t always have to have a bachelor’s degree even though it may be industry norm. So they were really hitting employers quite heavily for proof that they require a degree and that the job is so complicated that it would require a degree.”
Adding to that is wage levels. The Department of Labor determines what wages have to be for certain occupations in the immigration context based on location of the job and the classification of the job. One of four wage levels can be assigned.
“We started getting all of these requests for evidence that involved a Level 1 wage, and we had to fight against that,” Jones said. “That is one of the reasons there were so many more denials. They would say a job wasn’t complicated enough, and the flip side is that if they thought the job was complicated enough, you had to attach a Level 1 wage to it,” and a petition would be denied based on that.
In the latter case, the Administrative Court of Immigration has gotten involved recently and overturned some of those decisions.
Employers can avoid some common errors that lead to denial.
“Some examples would be incomplete forms, no signature, and qualifications do not match the position applied for,” said USCIS spokesperson Sharon Scheidhauer. “Officers evaluate each petition on a case-by-case basis to determine if a petition qualifies for the benefit being requested.”
Jones recommends employers avoid claiming Level 1 wage status on the application when possible. Having documentation of evidence of prior recruitment and using very detailed job descriptions is also critical.
Outside of H1-B issues, employers may have Deferred Action for Childhood Arrivals (DACA) employees who may or may not be able to work in the future.
“So if they have a large workforce that is reliant on DACA permits, they need to be prepared and know what to do when they can’t work anymore,” Jones said. “The same applies to TPS – temporary protected status.”
Also ending is the ability for spouses of H1-B holders, called H4s, to get work authorization under certain circumstances.
And the Immigration and Customs Enforcement (ICE) intends to quadruple work investigations and raids this year, so employers can expect to see a lot more I-9 inspections for undocumented workers, Jones said.
Many believe immigration system reform is long overdue.
“It’s a very, very cumbersome and difficult immigration system,” said ContigoCreative’s founder Matlock, who participated in an interfaith organization that traveled to Washington to advocate for immigration reform.
“Regardless of the Trump administration, it was broken a long time ago,” she said. “It’s over 100 years old with no changes, and it’s really time for reform.”