Newly released documents obtained under the Freedom of Information Act (FOIA) reveal that U.S. Citizenship and Immigration Services (USCIS) rolled out a major policy change impacting petitions for H-1B workers without sufficient training to officers deciding the petitions. The records reveal troubling insights into what likely contributed to substantial increases in requests for evidence (RFEs) and denials of H-1B petitions.
USCIS released the records after the American Immigration Lawyers Association (AILA) sued when the agency failed to respond to two FOIA requests.
AILA requested records on how the wage level listed in the certified Labor Condition Application (LCA), a document employers must obtain from the U.S. Department of Labor before filing an H-1B petition, impacts decision-making on the petition. AILA also requested records as to how USCIS determines whether the job the person will perform is a “specialty occupation.”
On Friday, March 31, 2017, the very day employers were sending H-1B petitions to USCIS for the annual “H-1B cap” which opened the following Monday, USCIS issued a new policy memo that dramatically changed the way USCIS adjudicates H-1B petitions. In a footnote of the memo, USCIS announced a new H-1B wage level policy by directing staff to review the LCA to ensure the designated wage level corresponds to the position without providing enough guidance to staff on how to implement this change.
The records produced are troubling as they suggest that months after USCIS rolled out its new H-1B wage level policy, which resulted in a 45% increase in the issuance of RFEs and a significant increase in denials, USCIS adjudicators lacked sufficient training materials and guidance on the new wage level policy to ensure consistent, efficient, and timely processing of H-1B petitions in accordance with the relevant immigration law. This likely explains the erratic, and often nonsensical RFE and denials issued by USCIS starting in the summer of 2017, which were widely reported in the media.
Emails released thanks to the lawsuit indicate that thousands of H-1B petitions were being held by at least one USCIS Service Center more than four months after the policy went into effect, pending receipt of final training materials on the new wage level policy.
Another email dated March 9, 2018 reveals that “clarifying guidance” on the agency’s wage level policy was not provided to staff until March 2018, nearly a full year after the new policy had been announced, long after thousands of H-1B petitions had already been decided by USCIS without the information.
Yet another email reveals that USCIS was still releasing “preliminary guidance” to its staff on certain aspects of the wage level policy, the treatment of private wage surveys, and the designation of a wage level as “not applicable” on the LCA, more than 13 months after the agency’s wage level policy had gone into effect.
The lack of sufficient guidance by USCIS to its officers is further highlighted in an email to USCIS Service Centers, dated June 20, 2017, in which the Office of Chief Counsel readily acknowledges that “further guidance on the wage level issue/analysis is needed.”
The email goes on to instruct USCIS adjudicators that until additional guidance is issued, it would be “safer” for adjudicators to apply the wage level analysis to H-1B petitions filed with an LCA with a Level 1 wage, and recommends adjudicators avoid analyzing the appropriateness of a Level 3 or Level 4 wage “until further DOL and USCIS guidance is issued.”
USCIS’ records affirm what U.S. employers, immigration practitioners, and the general public have experienced time and again under the Trump administration.
The administration’s haste to release a new immigration policy or practice results in its failure to publicly announce the new policy or practice, properly train staff, assess the operational impact on the agency, and evaluate and consider the potential effect on those seeking immigration benefits. This is yet another failure to administer immigration law fairly and efficiently.
FILED UNDER: H-1B, USCIS
