In a series of recent Federal Court decisions, rulings have been issued declaring that the USCIS at the direction of the Trump Administration have been illegally denying H-1b visas on grounds that have no legal or factual basis. A nice summary of these cases can be found in this recent Forbes article. The article, written by immigration policy expert, Stuart Andreson from NFAP, contains links to the actual cases if you want to read the full opinions. With Federal Court adverse decisions coming from multiple courts with a mix of Republican appointed and Democrat appointed judges and with no reversals from any Federal Appellate Court, one has to wonder at what point the USCIS gets tired of being punched in the mouth and throws in the towel and returns to actually following the law as it is written ? (maybe only Stephen Miller can answer that question ?) These cases were all brought by Heavyweight Champ Jonathan Wasden. Kudos to him and his firm. Litigators extraordinaire !
With the denial rate of H-1b visas in the mid 30% over the past 2 quarters and inching closer to 40%, ever wonder where all of those talented engineers and computer professionals are going ? Looks like they are landing nicely in Canada. Check out this latest article from NPR.
In an admission that surprises no one, documents which the USCIS was forced to release under FOIA litigation confirms that the USCIS was ordered by the Trump Administration to increase the denials of H-1b visas and were advised that no legal or regulatory authority was needed to support the denials. The full story is published in Forbes with links to the incriminating documents. These documents are expected to be at the front and center of all federal litigation brought by U.S. employers seeking to overturn arbitrary and capricious denials. It is also expected that charges of bad faith will be brought.
A recent article in Law 360 echoes the current reality that the increased scrutiny of H-1b filings particularly for high tech workers has resulted in a tech boom for Canada and more off-shoring of research and development jobs. The increase in denials, RFE's and the almost weekly change in the standards for adjudication has created a major chilling effect on U.S. employers who are adjusting by sending jobs overseas. But, hey the Trump Administration is creating more US jobs by building that wall !
It is being widely reported that the number of H-1b denials has increased dramatically during the past 3 months as the Trump edict to limit legal immigration has taken root. Recently the New York Times ran a sobering op-ed piece on this subject.
Don't believe the rhetoric that is coming from USCIS officers and the corn fields of Iowa claiming that immigration officials are being too lenient and being pressured into issuing unwarranted approvals. The truth lies in the numbers. A recent report from the NFAP, provides facts (those are statements that are true and not inventions of one's mind) about the denial and RFE rates experienced by employers trying to petiton for H-1b, L, and O workers over the past few years. While the White House advocates for an immigration policy that attracts and retains highly skilled professionals and entrepreneurs and the DHS issues press releases touting its efforts consistent with that policy, the rank and file USCIS officers are beating to a different drummer. The facts don't lie, even if they don't play well in the heartland.