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H-1Bs in The Era of Trump

New government documents reveal the increase in denials and Requests for Evidence for H-1B petitions are part of an effort by U.S. Citizenship and Immigration Services (USCIS) to achieve desired results – fewer high-skilled foreign nationals working in America. The American Immigration Lawyers Association (AILA) made the documents public after settling a Freedom of Information Act (FOIA) lawsuit.

“Denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019,” according to a National Foundation for American Policy (NFAP) analysis. The Request for Evidence (RFE) rate on H-1B petitions reached 60% in the first quarter of FY 2019.

The USCIS documents, which previously were hidden from the public, help explain how USCIS policies have increased H-1B denials and Requests for Evidence. The USCIS document titled “H-1B RFE Standards” is dated March 23, 2017, while “H-1B AC21 Denial Standards” is dated July 17, 2017, evidence the documents reflect the Trump administration’s new immigration policies.

These and other documents show USCIS adjudicators have been directed to restrict approvals of H-1B petitions without the legal or regulatory authority to justify those decisions. Below are some of the most revealing parts of the documents.

USCIS Leaves Out Supporting Legal Authority For Many Actions: “What the documents do not say is more important than what they say,” Jonathan Wasden, a partner with Wasden Banias LLC, told me in an interview. “You see that the noncontroversial matters are all supported by citation to statute and regulation. However, their most controversial policies (overreaching into Department of Labor regulations, requiring guaranteed work assignments and the employer-employee rule) lack any such support.”

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