More RFEs and rejections? Fewer filings? Will H4 EAD holders take the H1-B route? Here’s what Immigration lawyers say.
It’s that time of the year again. Starting April 1, 2019, the United States Citizenship and Immigration Services (USCIS) would start accepting new H1-B visa petitions for fiscal year 2020. The employment start date for these visas would be October 1, 2019.
Like previous years, the regular visa cap limit for H-1B this year remains 65,000. Additionally, another 20,000 petitioners, who possess a master’s, or a higher degree from a US university, will also get H-1B visas.
But, according to many lawyers, this year may be extraordinary for H-1B aspirants — mostly because of the continued scrutiny as well as some subtle rule changes announced earlier this year. In January, the USCIS introduced a change in the order in which allocations would be counted. The agency will now put all the petitions including the ones with advanced degree in the regular cap. In the second round, it will select the remaining petitions. The new order is expected to increase chances of petitioners with a US master’s degree.
According to USCIS, the new change would result in an estimated 16 percent rise, or an increase of 5,340 workers, in the selected H1-B petitioners with an advanced US degree.
This apart, an apparent increase in “Requests for Evidence” (RFEs) and resultant rejections in the past fiscal year and the looming fear of H4 EAD revocation would also have an effect on this years’ H1-B lottery.
So how does the current H1-B season look like? The American Bazaar spoke to some of the most prominent immigration attorneys and legal experts in the country on what to expect this H1-B season. Here is what they said:
The cap, likely to fill up within days, again:
Florida based paralegal Vishal Ghadia, who works with immigration attorneys through his Legal Process Outsourcing company, says, “In the last 6 years USCIS has received enough H1-B applications to fill the 85,000 Cap within the first 5 working days of the month of April. This time, too, we can expect the cap to reach within 5 days and the number of H1-B applications similar to last few years.” According to Ghadia, there are a number of reasons why the cap is likely to be reached pretty soon this year, even though H-1B has been in news for all the wrong reasons. One of them is the red-hot economy, especially in the tech sector. “Employers have hard time finding employees in the technology sector and other specialty occupations which would lead to more H1-B applicants,” Ghadia says.
However, some lawyers say that an apparent crackdown on H-1B and the overall negative sentiment around immigration would reflect on the filings. Prominent immigration attorney Sheela Murthy, the founder and president of Owings Mill, MD, -based Murthy Law Firm, says, “We expect fewer H-1B filings since many employers are frustrated with the system and the administration that has its head in the sand regarding the shortage of high-skilled workers to keep up the momentum of our economy.” However, Murthy says the cap will still be filled pretty fast, “Although there will be fewer filings, we still expect the cap to be reached within the first 5 days because there is so much demand. So instead of 1 in 3 cases being selected like years ago, now it will be 1 in 2 cases selected.” She adds, “The artificial cap or number of H-1Bs allowed in the US each year and the per country quota limits for permanent residency means that we want to put a cap on the growth of our economy and the country in America. Congress needs to wake up and deal with the reality of the extreme shortage of skilled professionals in the US.”
Most lawyers feel that this certainly is going to be a tricky year for H1-B petitions. Kansas City-based attorney Rekha Sharma-Crawford of Sharma-Crawford Attorneys at Law says, “Expectations and aspirations are met with cautious optimism this year. With the administration working overtime to limit all immigration, there is an uncertainty to the H-1B season this year. While everyone is hoping for an uneventful season, applicants and attorneys alike are being very careful about managing expectations.”
Asked whether it can result in fewer applications, Sharma-Crawford says, “Hope is a funny thing. Even in the most difficult times, it helps maintain enthusiasm. I think the numbers will be higher by the time they are all tallied.”
The H4 EAD revoking may affect H-1B
Paralegal Ghadia says, “Another important factor could be the removal of H-4 EAD this year. All eligible H4 EAD holders and their employers will try to convert to H-1B visa to continue their employment.
The Department of Homeland Security submitted a proposal to end the H-4 EAD to the Office of Management and Budget for review on February 20. An OMB review is part of the rule-making process, and DHS may come up with the final regulation anytime,
More scrutiny and rejections?
Immigration attorney Emily Neumann wrote in an article on the American Bazaar last week that, between October 1, 2018, and December 31, 2018, USCIS issued Requests for Evidence (RFE) on 60 percent of H-1B petitions. Out of those petitions, 40 percent were eventually denied. So, will a continued risk of rejections haunt the new applicants? Neumann says, “The increased scrutiny of visa applications combined with the extremely low unemployment rate should make this an interesting year. Generally, when unemployment is low, the number of H-1B petitions filed in the cap is higher as businesses seek outside talent to fill open positions. At the same time, the increased rate of RFEs and denials causes employers to reconsider whether it is worth filing.”
Ghadia says that one can expect more scrutiny and hence RFEs for Level-1 wage applications.
America’s loss would be other countries’ gain
Due to constantly restrictive immigration policies in the United States, experts say that companies are looking at options beyond this country. “US companies are changing their recruiting plans and shifting operations overseas where the talent can be found,” says Neumann. “This is due to the restrictive immigration policies of the current administration. We may ultimately see slightly fewer petitions filed in this year’s lottery as a result of the Buy American and Hire American (BAHA) Executive Order. However, the unintended consequence of BAHA may push American jobs overseas rather than protecting US workers.”
Murthy agrees that other countries would benefit from America’s immigration policies. “Our loss in America will be the gain of other countries like Canada and Australia where they are welcoming high tech skilled professionals with open arms,” she says.
Amongst an intensely speculative year of H1-B filing, Ghadia hopes that premium processing will continue. “Hopefully the premium processing for all H-1B applications will continue and applicants can make quick decisions based on approval or denial,” he says.