USCIS is revoking H-1B petitions, along with denying extensions of H-1Bs that used to be granted routinely. These decisions highlight the agency’s continued crackdown on the specialty occupation visa heavily used by tech companies. In April this year, employers submitted 201,011 petitions for the 85,000 H-1B visas available starting in October.
New Standards and Higher Scrutiny
While there are no publicly available figures on H-1B revocations, immigration lawyers nationwide agree that these revocations are becoming as common as denials. Indeed, in the fiscal year 2018, 15.5% of all H-1B petitions were denied, skyrocketing from 7.4% in 2017.
Heightened scrutiny for H-1B resulted from USCIS’ implementation of President Trump‘s Buy American and Hire American executive order, released in April 2017. This led to longer processing times and more denials for businesses, especially in the IT industry.
How and Why H-1B is Revoked
USCIS may send a notice of intent to revoke if: the worker no longer works for the petitioning employer in the capacity listed in the original petition; there was fraud, misrepresentation, or the facts originally presented weren’t true; the employer violated the terms and conditions of the approved petition or the law; or the approval violated the regulations or “involved gross error.”
Immigration attorneys believed there are two primary causes to the agency’s crackdown:
- An October 2017 USCIS memo overturning a George W. Bush administration policy that said adjudicators of H-1B extension applications should defer to decisions on the prior applications; and
- A February 2018 policy requiring employers that place their H-1B workers at third-party sites to provide additional documentation over and above what other employers must submit. In other words, employers must list every contract and work site the H-1B worker will be working on for the duration of the visa,
H-1B revocation creates an additional headache over and above delays and denials, namely the need to remove the person from the country quickly to avoid penalties for unlawful presence. H-1B workers have 30 days to exit the U.S. after receiving a revocation notice. It also means that, rather than simply reapplying for another H-1B visa, the worker’s application must go through the H-1B lottery a second time and may not get selected.
Do you, or someone you know, own a business and wish to recruit the best talent from around the world to fill specialty positions? If so, contact us today to avoid delays and denials that can be costly to your projects. Our legal experts have over 100 years of immigration experience and will determine the best visa options and strategies for your business and your workers. Don’t wait!