A Few Lessons on H-1B
Everyone’s favorite time of year is right around the corner.
No, I am not talking about Valentine’s Day or Spring Break…I am talking about H-1B cap season.
It seems like only yesterday we were filing a batch of H-1B cap cases. This is particularly true since we are still dealing with the fallout of the increased scrutiny experienced by H-1B cap case applicants and their employers under President Trump’s Buy America, Hire America initiative (“BAHA”).
You see, in absence of actual congressional action on the matter, the current administration is challenging the much maligned program for specialty occupations by simply making everything harder. Everything across the immigration law spectrum is taking longer to process, receiving a higher amount of scrutiny, and an increase in in-person interviews for certain processes where historically such interviews were not required.
In anticipation of the upcoming cap season, those interested in the H-1B option should:
- Check with your immigration attorney to make sure you have explored other potential options (L-1, O-1, E-3, H- 1B1)
- Requests for Evidence are no longer the exception – they are the norm.
- We always set up every case to mitigate the risk of an RFE, but we should not let fear dictate our decisions. Clients who want advice on whether they should take one job over another as a way to decrease the likelihood of an RFE are doing themselves a disservice if they make a career decision based on fear. People need to make decisions based on what is best for themselves, their families, and their careers, because the reality is an RFE is going to be a possibility regardless of the position selected, so you might as well do what is best for you.
- Anything can change instantly, without notice, and without Congressional action.
- The USCIS is not exactly concerned with established law and precedent – they are emboldened by their new executive.
- You gotta hand it to them, the USCIS is a bit more creative and a bit more brazen than we had all originally thought. We saw this in the most recent H-1B cap cycle, where, out of thin air, they essentially created a new way to challenge and frustrate H-1B applicants based on the wage level. Nevermind the fact that their actual legal authority to do this is, at best, extremely limited and narrow in scope. We live in a post-truth, fake-news world where law, precedent (and decency), can no longer be taken for granted.
It is impossible to know specifically what will change if/when this administration is able to make their comprehensive immigration political vision into a codified legal reality.
H-1Bs were never necessarily easy, but what we are experiencing is the use of this program as a scapegoat, a political punching bag, a victim of bullying by an administration that has made xenophobic anti-immigrant position woven throughout everything their agenda.
Here at Lightman Law Firm, we can’t predict the future. All we can do is stay dedicated to our clients and to help them make the decision that is best for them.