You Win the FY 2019 H-1B Lottery: Are Your Worries Behind You?

The answer to this question is “not necessarily."  After the FY 2018 H-1B lottery, many participating U.S. employers and beneficiaries breathed a sigh of relief and gave a hearty cheer when their checks for the H-1B filing fees were cashed and a United States Citizenship and Immigration Services (“USCIS”) receipt notice was received for their pending H-1B petition. This meant they had successfully won one of the highly coveted H-1B visa numbers! Their euphoria quickly turned into anxiety and frustration, when USCIS later issued thousands of Requests for Evidence (“RFEs”) nationwide challenging their pending H-1B petitions in ways that previously could not have been anticipated.

The majority of these RFEs (some of which were entitled “Student Request for Evidence”) appeared to be primarily based on two challenges, both targeting entry-level positions. In some instances, USCIS was questioning whether the use of a Level 1 or Level 2 prevailing wage for the offered petition was justified because of the position’s complexity of duties and level of supervision. In other instances, USCIS was questioning whether the offered position with a Level 1 wage was a “specialty occupation” which required the attainment of at least a bachelor’s degree in a field related to the duties of the offered position. Unfortunately, some U.S. employers received RFEs mounting both challenges, or received multiple RFEs! USCIS issued these RFEs for H-1B petitions in various occupations, but H-1B petitions based on computer-related occupations (such as programmers) appear to be among the most frequent recipients.

While many U.S. employers have prevailed against such challenges, others have not. Although we are at the start of the FY 2019 H-1B lottery season, other FY 2018 H-1B lottery winners faced with these pending RFEs are still waiting to hear whether their petition has been approved or denied.

Because of “Buy American and Hire American” Executive Order 13788, it is expected that H-1B petitions filed in the FY 2019 lottery, as well as H-1B cap-exempt petitions and H-1B extension petitions, will face the same heightened USCIS scrutiny and will experience challenges through the increased issuance of RFEs and Notices of Intent to Deny (“NOIDs”) by USCIS. In addition to the Level 1 and Level 2 prevailing wage and “specialty occupation” challenges described above, it is likely that these RFEs and NOIDs will probe whether the required petitioner/employer - beneficiary/employee relationship exists for H-1B entrepreneurs and their sponsoring company and for H-1B companies sponsoring consultants with third party placements. H-1B petitioners placing foreign national employees at multiple worksites or with telecommuting or peripatetic employees are also likely to face such increased challenges.

Practice Pointer: The increased legal expenses, long processing delays and anxiety for U.S. employers and H-1B beneficiaries caused by the issuance of such RFEs or NOIDs are costly and disruptive. Therefore, during the preparation of an H-1B petition, give careful attention to anticipating whether the petition is vulnerable to these new USCIS challenges. If so, take strategic action to present sufficient evidence and legal authority with the filing of the H-1B to prevent the likelihood of the issuance of an RFE or NOID. While such action may increase the time and cost for the preparation and filing of an H-1B petition, it may well result in a better, faster and less costly outcome.