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‘Longstanding’ Issues with H-1B, L-1 Petitions Continue
 

By Roy Maurer  7/7/2014
 

Employers seeking foreign high-skilled talent continue to report systemic concerns regarding the quality and consistency of visa petition adjudications, including unnecessary requests for evidence, erroneous denials and the incorrect application of evidentiary standards, according to a government report.

The Citizenship and Immigration Services previous hitOmbudsmannext hit Annual previous hitReportnext hit 2014 reveals that the challenges employers face submitting petitions to U.S. Citizenship and Immigration Services (USCIS) “still mirror difficulties of decades past … and lie with the USCIS Service Center Operations Directorate,” where over 50 percent of adjudications are performed.

“Overly burdensome and unnecessary Requests for Evidence continue to erode trust in our immigration system, delay adjudications, and diminish confidence in adjudicators’ understanding of law and policy,” said USCISnext hit previous hitOmbudsmannext hit Maria Odom in the report.

Many of the longstanding issues will be addressed through USCIS’s new Quality Driven Workplace Initiative, Odom said. “The agency has converted employee performance standards from quantitative to qualitative measures, seeking to foster an environment in which quality decisions and customer service are front and center priorities.”

The USCIS Ombudsman is an independent, impartial office reporting directly to the Department of Homeland Security Deputy Secretary and working to improve the delivery of immigration benefits and services.

The Ombudsman’s Annual Report to Congress is charged with summarizing the most pervasive and serious problems encountered by individuals and employers seeking immigration-related benefits from USCIS. From April 1, 2013, to March 31, 2014, the Ombudsman received 6,135 requests for case assistance, an increase of over 35 percent from the 2012-13 reporting period. Twenty-three percent of that total was for employment-related issues.

RFE Rates Continue to Rise

One of employers’ biggest gripes is the rising rate of Requests for Evidence (RFEs), which they say disrupt business operations and planning, negatively impact beneficiaries, and increase legal costs. RFEs are meant to clarify or support the candidate’s visa qualifications, but are often criticized as redundant and unnecessary.

USCIS data from the first half of fiscal year (FY) 2014 reveal an average RFE rate of 54 percent for L-1B petitions, 42 percent for L-1A petitions and 30 percent for H-1Bs.

Despite high RFE rates in 2013, USCIS approved more than 94 percent of H-1Bs filed, 83 percent of L-1As, and 67 percent of L-1Bs. “High RFE rates coupled with high approval rates indicate USCIS needs to better articulate evidentiary requirements,” Odom concluded. She recommended additional “concentrated” training of the preponderance of the evidence standard and supervisory quality assurance of RFEs to ensure adjudicators are adhering to current USCIS policy. Currently, basic training curriculum does not include hypothetical examples of employment cases that can be used to train adjudicators on how to apply the “more likely than not” preponderance test. “Exploring how various factual scenarios could turn the case from an approval to a denial, or warrant the issuance of an RFE, would be highly instructive,” she said.

The Ombudsman’s office had previously recommended that USCIS conduct supervisory review of all RFEs at one or more of its service centers as a quality control pilot measure, but the agency declined, noting that conducting quality reviews for all RFEs would be too time-consuming and resource-intensive, despite the costs the agency incurs in preparing them and reviewing tens of thousands of responses.

Attempting to Define ‘Specialized Knowledge’

Under the L-1B category, employees of multinational corporations who possess “specialized knowledge,” may be transferred to a related company in the U.S. However, defining this standard has proven to be one of the more confusing areas of immigration law. USCIS defines specialized knowledge as particular knowledge “of the organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets,” or “an advanced level of knowledge or expertise in the organization’s processes and procedures.” Determining the level and significance of the company-specific knowledge held by an employee is inherently a subjective task, and adjudicators are granted wide discretion in L-1B cases. “RFE rates for L-1Bs show that this legal standard is not well understood by employers or USCIS adjudicators,” Odom said. She supports the agency’s ongoing efforts to clarify the definition of specialized knowledge.

L-1B denial rates have also increased from an average 20 percent in FY 2008 to an average rate of 36 percent for FY 2013.

While recognizing that USCIS cannot prevent the receipt of improperly prepared L-1B submissions, the sustained high rate of RFEs and denials indicate several possibilities, according to Odom: USCIS adjudicators are not receiving the right information from petitioners, adjudicators do not fully understand the legal standards for establishing L-1B specialized knowledge, or petitioners do not understand what USCIS adjudicators are looking for in an L-1B filing.

RFE Troubles for H-2 Petitions

The report revealed a spike in case assistance related to the H-2 temporary worker programs also, mostly submitted by small- and medium-sized businesses petitioning for multiple workers. Concerns focused on the increased issuance of RFEs by the Vermont Service Center. One complainant representing multiple employers filing H-2B petitions at both the Vermont and California centers provided data indicating that the Vermont adjudicators are placing higher scrutiny on the “seasonality” of occupations, resulting in a high issuance of RFEs.

One of the complainant’s employer members received 146 RFEs out of 300 petitions pending with the Vermont Service Center for landscapers, a traditionally recognized seasonal and temporary job. H-2 employers are questioning why USCIS is issuing RFEs for seasonality for occupations that have long been recognized and approved in prior years. FY 2014 data shows that the Vermont center’s RFE issuance rate is 35 percent, whereas the California center’s rate is at 7 percent. Another common complaint from H-2 employers is repetitive RFEs to verify business information year after year. For example, one case brought to the Ombudsman’s office concerned an employer being issued RFEs for three consecutive years seeking the same business information.

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

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